Download this publication - PULP

232 Chapter 14
2 Values and the equality right
2.1 Equality as substantive equality
Race, gender, class and many other forms of inequality structure
access to basic needs and material resources in South Africa and result
in: limited opportunities and economic marginalisation; social
exclusion, stigmatisation and stereotyping; vulnerability to physical
and psychological violence; and political vulnerability. The causes of
inequality are manifold and usually deeply entrenched in social and
economic structures, systems and institutions. Inequalities often arise
out of group-based disparities and relationships of privilege and
subordination.
Addressing these inequalities is an important part of the
constitutional project of transformation. 1 To do so using law requires
both a strong concept of equality and an idea of law that does not
preserve the status quo. For many in academia and the Constitutional
Court, this conception is captured in the idea of substantive equality.
In a 2006 address at Stellenbosch University, Chief Justice Langa
identified substantive equality as one of the key measures of
transformation in our society. Here he was referring to the
aspirational value of substantive equality: ‘a social and economic
revolution in which all enjoy equal access to the resources and
amenities of life, and are able to develop to their full human
potential’. 2 This vision requires the dismantling of systemic
inequalities, the eradication of poverty and disadvantage (economic
equality) and the affirmation of human identity and capabilities
1 See K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South
African Journal on Human Rights 146. The idea of transformative
constitutionalism has characterised many writings on equality. See, eg, C Albertyn
& B Goldblatt ‘Facing the challenge of transformation: Difficulties in the
development of an indigenous jurisprudence of equality’ (1998) 14 South African
Journal on Human Rights 248; S Liebenberg & M O’Sullivan ‘South Africa’s new
equality legislation: A tool for advancing women’s socio-economic equality?’ in S
Jagwanth & E Kalula (eds) Equality Law: Reflections from South Africa and
elsewhere (2001) 70; P de Vos ‘Grootboom, The right of access to housing and
substantive equality as contextual fairness’ (2001) 17 South African Journal on
Human Rights 258; A van der Walt ‘A South African reading of Frank Michelman’s
theory of justice’ in H Botha et al (eds) Rights and democracy in a transformative
constitution (2003); S Jagwanth ‘Expanding equality’ in C Murray & M O’Sullivan
(eds) Advancing women’s rights (2005) 131; S Jagwanth & C Murray ‘No nation can
be free when one half of it is enslaved: Constitutional equality for women in
South Africa’ in B Baines & R Rubio-Marin (eds) The gender of constitutional
jurisprudence (2005) 230. See also P Langa ‘Transformative constitutionalism’
(2006) 17 Stellenbosch Law Review 351.
2 Langa (n 1 above) 352-353, citing Albertyn & Goldblatt (n 1 above).