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16 Chapter 1
had previously been disadvantaged would be the beneficiaries of
programs aimed at systematic and thorough historical redress.
In their chapter, Professor Cathi Albertyn and Beth Goldblatt
develop the rather speculative thesis that the right to equality
supports a vision of substantive equality. 27 Their construction of
substantive equality does not aim to provide a complete answer to the
hard question — ‘equality of what?’ It reflects, however controversial,
a set of intuitions about ‘a social democratic vision that entails
equality of opportunities and outcomes.’
After considering the basic values underlying the right to equality,
Albertyn and Goldblatt conduct a brief but detailed analysis of the
Constitutional Court’s jurisprudence on FC section 9(3): the right not
to be subject to unfair discrimination. While generally supportive of
the Court’s approach, Albertyn and Goldblatt raise a number of
legitimate concerns. Firstly, the Court has, despite purporting to
recognise feminist theories, failed to apply them meaningfully to
cases — such as Volks 28 and Jordan 29 — that go to the heart of unfair
differentiation between men and women. Secondly, the authors note
how, in these (and other) cases, the Court reverts to an approach to
equality analysis that fails to grasp the impact of the alleged
discrimination on the complainants.
Karthy Govender questions an approach to equality that focuses
almost exclusively on achieving substantive equality (especially
where substantive equality looks to be a stand-in for historical
redress). He begins by noting that South Africa has, in fact, made
relatively rapid egalitarian changes to its laws through a rather
cautious and judicious use of the right to equality. Govender links his
preferred approach to Justice Sach’s concern in Walker that too
expansive an approach to indirect discrimination would allow ‘every
tax burden, every licensing or town planning regulation’ to be
challenged simply because it had disproportionate effects on
different groups. 30 While Justice Sachs’ approach was not adopted in
Walker, Govender argues that the Van Heerden Court achieved a
similar goal through the vehicle of FC section 9(2). 31 The Court’s FC
section 9(2) analysis — the historical redress provision — enables it to
adopt a flexible approach that pays particular attention to the
27
C Albertyn & B Goldblatt ‘Equality’ in S Woolman et al (eds) Constitutional Law of
South Africa (2nd Edition, OS, 2007) Chapter 35 (CD track 8).
28 Volks NO v Robinson & Others 2005 5 BCLR 446 (CC).
29
S v Jordan & Others (Sex Workers Education and Advocacy Task Force & Others as
Amici Curiae) 2002 6 SA 642 (CC), 2002 2 SACR 499 (CC), 2002 11 BCLR 1117 (CC).
30 Pretoria City Council v Walker 1998 2 SA 363 (CC), 1998 2 BCLR 257 (CC).
31
Minister of Finance & Another v Van Heerden 2004 6 SA 121 (CC), 2004 11 BCLR
125 (CC).