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Cathi Albertyn & Beth Goldblatt 249
refugees took account of a wider range of contextual issues than did
the majority and reflects a deeper understanding of vulnerability.
In Jordan, the majority failed to appreciate the gendered nature
of the sex work industry and chose to focus formalistically on the fact
that the male customer and the female sex worker (as well as both
male and female sex workers) were equally criminalised by the
challenged legislation. The minority (the Court was divided 6:5)
interpreted the Act to mean that sex workers faced greater sanctions
as the primary offender than did their clients as accomplices and that
since sex workers were generally women and clients men, indirect
discrimination had occurred. The minority was thus able to see this
distinction as ‘mattering’ by exploring and unpacking the perception
of sex workers as social outcasts, deviants and temptresses. 128
Volks concerned a claim by a surviving domestic partner to
maintenance in terms of the Maintenance of Surviving Spouses Act.
The majority had little sympathy for the middle class complainant —
although it acknowledged the vulnerability of a group of poor women
who find themselves in unregulated domestic partnerships. Although
there was a seeming attention to context, the judgment foundered on
its inability to look at the matter historically. The focus on the special
place of marriage blocked any willingness to shift dominant
traditional and conservative ideas about the nature of the family.
Moreover, the focus on a person’s choice to marry or not was at odds
with an understanding of constraints on women’s choices within
intimate relationships, particularly when they are already
disadvantaged and poor. 129
4 An overview of the right and its relationship with FC
section 36
The equality right in FC section 9 is quite detailed. Five provisions set
out different aspects of the right, and different ‘levels’ of equality
protection (what the US courts call scrutiny). The Constitutional Court
has argued that ‘[a] comprehensive understanding of the
Constitution’s conception of equality requires a harmonious reading
of the provisions of section 9’. 130 This reading also requires the right
to be approached holistically rather than formulaically, so that the
right, as a whole, produces an approach to achieving equality which
is ‘cumulative, interrelated and indivisible’. 131
128
Jordan (n 12 above) para 64.
129 See also Albertyn (n 93 above) 229-30; C Lind ‘Domestic Partnerships and Marital
Status Discrimination’ in Murray & O’Sullivan (n 1 above) 108-130.
130
Van Heerden (n 31 above) para 28.
131 Van Heerden (n 31 above) para 135 (Sachs J).