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236 Chapter 14
social exclusion, 17 the perpetuation of harmful stereotypes, 18 and
political vulnerability. 19
In the end, the value of dignity — manifest in the notion of equal
moral worth and the requirement that all persons be treated with
equal concern and respect — is a malleable concept. It easily
embraces ideas of status or recognition that are implicated in the
majority of equality (unfair discrimination) cases. Here the value of
dignity evinces a constitutional concern with the equal moral worth
of persons and groups, with their inclusion and participation within
society as equals, without stereotyping, prejudice and isolation. The
relationship of the value of dignity to ideas of material disadvantage
is apparent, although, as we noted above, thus far limited in its
application to concrete cases. In equality cases, this conception of
dignity has only been employed where the underlying inequality is
supported by a violation of a socio-economic right. 20 The cases
demonstrate that while dignity is capable of supporting a substantive
understanding of equality that explores and seeks to remedy systemic
inequalities and disadvantage, other uses of dignity, often combined
with legal formalism, prevent a substantive understanding of
equality. 21
Rather trenchant criticisms of dignity — and its relationship to
equality — have been made with regard to Canadian jurisprudence.
Canadian scholars have shown that the courts’ reliance on dignity
focuses on whether a person or group has been treated with ‘equal
concern and respect’, and fails to test whether particular goals of
substantive equality have been achieved. 22
17 Bhe & Others v Magistrate, Khayelitsha & Others; Shibi v Sithole & Others;
SAHRC & Another v President v President of the RSA & Another 2005 1 SA 580
(CC), 2005 1 BCLR 1 (CC) in relation to the customary rule of primogeniture. See
further Albertyn & Goldblatt (n 16 above) 35-10—35-12.
18 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 2
SA 1 (CC), 2000 1 BCLR 39 (CC) paras 45–53.
19 Larbi-Odam & Others v Member of the Executive Council for Education (North-
West Province) & Another 1998 1 SA 745 (CC), 1997 12 BCLR 1655 (CC) in respect
of access to economic opportunities (teaching posts).
20 For a discussion of this idea of dignity in relation to socio-economic rights, see S
Liebenberg ‘The value of human dignity’ (n 11 above). For a discussion of the
relationship between equality and socio-economic rights, see S Fredman
‘Providing equality: Substantive equality and the positive duty to provide’ (2005)
21 South African Journal on Human Rights 163; Goldblatt & Liebenberg (n 3
above).
21 See C Albertyn ‘Substantive equality and transformation in South Africa’ (2007) 23
South African Journal on Human Rights 253; Woolman (n 5 above) § 36.4
22
See, eg, C Sheppard ‘Inclusive equality and new forms of social governance’
(2004) 24 Supreme Court Law Review (2d) 45; S Moreau ‘The wrongs of unequal
treatment’ (2004) 54 University of Toronto Law Journal 291; J Fudge ‘Substantive
equality, the Supreme Court of Canada and the limits to redistribution’ (2007) 23
South African Journal on Human Rights 235.