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Cathi Albertyn & Beth Goldblatt 233
(social equality). It confirms a strong relationship between
substantive equality and the achievement of socio-economic rights. 3
The value of substantive equality does not provide a definitive
answer to the question, ‘equality of what?’ However, it does suggest
that the constitutional answer is, at least, a social democratic vision
that entails equality of opportunities and outcomes, including the
idea of redistribution (of power and resources) and the remedying of
material disadvantage. Here the aspirational value of achieving
equality is capable of an expansive meaning: It is largely unencumbered
by more practical considerations of the separation of
powers and institutional competence. However, constitutional rights,
as legal entitlements, are enforced through the courts and it is in FC
section 9, discussed below, that the idea of substantive equality is
captured in law.
2.2 The values underlying the equality right
As with any other right, the equality right should be interpreted in the
light of underlying constitutional values, as well as the interests —
that that right is meant to protect. This interrogation of purpose and
values provides the equality right with its substantive content, and
provides an answer to the question: ‘equality of what?’ The judicial
determination of values and purpose thus involves choices about
whom or what the right can and should protect. In the equality right,
this determination mostly takes place in terms of an assessment of
fairness. In this assessment, dignity has been the dominant and
determinative value.
2.2.1 Dignity
The Constitutional Court emphasised the relationship between
equality and the value of dignity early in its jurisprudential
development of the right. In President of the Republic of South Africa
v Hugo Goldstone J said:
At the heart of the prohibition of unfair discrimination lies a recognition
that the purpose of our new constitutional and democratic order is the
establishment of a society in which all human beings will be accorded
equal dignity and respect regardless of their membership of particular
groups. The achievement of such a society in the context of our deeply
3 For a discussion on the relationship between equality and socio-economic rights
see B Goldblatt & S Liebenberg ‘Achieving substantive equality in South Africa:
The relationship between equality and socio-economic rights’ (2007) 23 South
African Journal on Human Rights 335.