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2.2.2 Equality
The Constitutional Court has recently begun to engage more fully with
the value of equality, especially in cases concerning FC section 9(2)
and the positive aspects of the equality right. In these cases, the court
has developed its understanding of equality’s role in remedying
historical disadvantage and material inequalities. In Brink v Kitshoff
NO when O’Regan J wrote that the equality clause in the Interim
Constitution was adopted
[in the] recognition that discrimination against people who are members
of disfavoured groups can lead to patterns of group disadvantage and
harm. Such discrimination is unfair: it builds and entrenches inequality
amongst different groups in our society. ... The need to prohibit such
patterns of discrimination and remedy their results are the primary
purposes of section 8. 23
Although dignity became more central to the equality jurisprudence
after Brink, the Constitutional Court has regularly emphasised the
remedial and restitutionary aspects of substantive equality 24 and
linked equality to the enjoyment of all rights and freedoms. 25 The
value of substantive equality, so understood, encompasses a notion of
redistributive justice, 26 and suggests that the right to be free from
unfair discrimination must be understood against our legacy of deep
social inequality. 27 However, with the exception of City Council of
Pretoria v Walker, 28 the Court has not had to address equality claims
that necessarily and directly related to material disadvantage or
economic redistribution until the cases of Bannatyne v Bannatyne; 29
Khosa v Minister of Social Development; 30 and Minister of Finance v
Van Heerden. 31 In Khosa, a case dealing with a claim of unfair
discrimination in the allocation of social grants, the Court deployed
dignity as the driving force in its development of the connection
between poverty and self-worth. In Van Heerden, the Court linked the
achievement of equality with the achievement of a society based on
‘social justice’. However, this objective could only be realised if there
was a ‘positive commitment progressively to eradicate socially
constructed barriers to equality’ and to root out systematic or
23 1996 4 SA 197 (CC), 1996 6 BCLR 752 (CC) para 42.
24 City Council of Pretoria v Walker 1998 2 SA 363 (CC), 1998 3 BCLR 257 (CC) paras
45–48; NCGLE v Minister of Justice (n 12 above) paras 60–62.
25 FC sec 9(2).
26 The recognition that the value of equality encompasses an idea of material
equality and economic redistribution has also been expressed by former Chief
Justice Chaskalson. Chaskalson (n 13 above).
27 See, eg, Brink v Kitshoff (n 23 above) and Prinsloo v Van der Linde & Another
1997 3 SA 1012 (CC), 1997 6 BCLR 759 (CC).
28 n 24 above.
29 2003 2 SA 363 (CC), 2003 2 BCLR 111 (CC).
30
n 14 above.
31 2004 6 SA 121 (CC), 2004 11 BCLR 1125 (CC) para 31.