n Acta Juridica - Expanding equality

Abstract

Equality occupies a central and overarching place in the South African legal order. It is a free-standing right under s 9 of the Constitution as well as a foundational value in our constitutional dispensation. This chapter examines the use of equality as both a right and value in cases other than direct challenges to discriminatory law or conduct, and demonstrates the importance of expanding the role and reach of equality to all cases in which groups suffering disadvantage are affected, including in non-constitutional matters. The duty to promote equality, a relatively new development in equality law, is also examined in the light of its potential for social change and transformation. While the arguments presented in this chapter may be relevant for all disadvantaged groups, it focuses mainly on sex and gender equality cases and the achievement of substantive equality for women.

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Equality as a justiciable right confers legitimate constitutional entitlements and corresponding obligations, and may be directly relied upon to found a cause of action in the courts against duty-bearers. Equality as a value may be used by courts even where the right is not invoked, allowing substantive equality principles to form the lens through which application of the law takes place. In Van Heerden Moseneke J noted that 'the achievement of equality is not only a guaranteed and justiciable right in our Bill of Rights but also a core and foundational value; a standard which must inform all law and against which all law must be tested for constitutional consonance.' Equality as both a right and value can play a number of different roles in the process of constitutional interpretation in the courts. Anti-discrimination litigation in the form of direct challenges to discriminatory legislation or conduct has traditionally been the most common way in which the equality right has been used in the courts. However equality principles may also be effectively used in cases where the right is not directly invoked, including in the interpretation of other rights, the interpretation of legislation and the development of the common law and customary law. An expanded role for equality makes the substantive equality principles developed by the Constitutional Court relevant beyond the content and ambit of the right itself and the next part of this chapter briefly describes aspects of the substantive equality jurisprudence in this regard.