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238 Chapter 14
institutionalised under-privilege’. 32 This commitment required remedial
or restitutionary equality. 33 Although the Van Heerden Court does
not use the term ‘redistribution’, its interpretation of the value of
equality clearly envisages a degree of economic redistribution and the
removal of material disparities.
2.2.3 Values, purpose and the parameters of the equality right
Read across a series of cases, and in the context of our history, the
purpose of the equality right can be seen to promote a society where
each person is accorded equal moral worth, and in which systemic
inequality and disadvantage are eradicated and substantive equality
is actively promoted. The value of dignity continues to play the
central role in relation to unfair discrimination and its meaning has
(sometimes) been broadened to include issues of group disadvantage
and material well-being. The value of equality is more dominant in
the Court’s interpretation of the positive aspects of the right under
FC section 9(2). In relation to both unfair discrimination and positive
measures, the Court’s embrace of the redistributive aspects of
equality has been supported by the presence of underlying rights in
the Final Constitution (the right to social assistance in Khosa) or in
legislation (the Maintenance Act in Bannatyne and the Political Office
Bearers Pension Fund in Van Heerden).
However, a redistributive function does not always fit
comfortably with the institutional role of courts and with the
distinction the courts seek to draw between issues of social policy and
issues of law. 34 It is perhaps for this reason that the Constitutional
Court initially turned to the more comfortable terrain of dignity to
define and to guide the application of the equality right. However, it
is through giving substantive meaning to the values of dignity and
equality that the Court has begun to develop an equality
jurisprudence that is flexible in its response to different kinds of
claims, and that is able to address questions of individual moral worth
and group-based social and economic disadvantage.
3 Evaluation of unfair discrimination jurisprudence
The early cases of unfair discrimination involved the gradual
development of the jurisprudence and led to the crystallisation of a
comprehensive test for unfair discrimination in Harksen. 35
32 n 31 above, para 31.
33
n 31 above, para 30 and paras 73-74 (Mokgoro J).
34 See, eg, NCGLE v Minister of Justice (n 12 above) para 123 (Sachs J expressed
concerns in his minority judgement in relation to ‘over-intrusive judicial
intervention in matters of broad social policy’.)
35 n 9 above.