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Cathi Albertyn & Beth Goldblatt 247
3.3.2 The Poor
Interestingly, one of the most marginal groups in our society, the
poor, have not approached courts with equality cases requiring
positive state action to meet their basic needs. The majority of unfair
discrimination cases have been brought by middle class applicants.
(Although some of the cases have argued for improved benefits that
would assist the poor within that disadvantaged group (Jordan 113 and
Volks).) 114 As discussed above, 115 Khosa 116 concerned the rights of
non-citizens living in poverty to state support. But thus far, no-one
has come to court to argue that they are unfairly treated by virtue of
their membership of a disadvantaged group of poor people. PEPUDA
includes socio-economic status as a ground to be considered for
inclusion in the list of prohibited grounds of discrimination. One would
hope that the next decade will witness cases brought by or on behalf
of people who have been left behind during the sustained period of
growth over the past decade. 117 Our equality right seems capable of
assisting them if the Court’s jurisprudence is properly applied.
3.3.3 Intersectionality
Other jurisdictions have struggled with the development of a method
for dealing with claims based on a range of different grounds.
Crenshaw has explained the problems of an unsophisticated approach
by what she terms ‘intersectionality’ and shows how disadvantage
suffered by a black woman constitutes a separate category of
discrimination that is greater than, and different from, the individual
claims of race or gender discrimination made on behalf of white
women or black men. 118 A contextual approach requires that
different layers of disadvantage be unpacked and addressed in their
full complexity. Our Constitutional Court has not properly dealt with
this issue (NCGLE v Home Affairs 119 and Moseneke). 120 Still, it has
managed to assist groups where a number of possible grounds exist.
The Court has correctly adopted the expansive view that as long as
113 n 12 above.
114 n 62 above.
115
See 2.1.1 above.
116 n 14 above.
117 See S Liebenberg & B Goldblatt ‘The interrelationship between equality and
socio-economic rights under South Africa’s transformative constitution’ (2007) 23
South African Journal on Human Rights 335. for a discussion of poverty/class as a
ground of unfair discrimination.
118
K Crenshaw ‘Demarginalising the intersection of race and sex: A black feminist
critique of antidiscrimination doctrine, feminist theory and antiracist politics’
(1989) University of Chicago Legal Forum 139. See also N Iyer ‘Categorical
denials: Equality rights and the shaping of social identity’ (1993) 19 Queen’s Law
Journal 179.
119 n 18 above, para 40. Sachs J gave more detailed attention to the issue in his
separate concurring judgment, paras 112-113.
120 n 40 above, para 30.