n South African Journal on Human Rights - Substantive equality and transformation in South Africa




This article considers whether 'substantive equality', as a transformative idea and legal mechanism in the South African constitution, can generate legal solutions and court decisions that may result in transformative change. It does so by establishing a framework for analysing the 'inclusionary' or 'transformatory' effects of equality cases in relation to gender and sexual orientation. It argues that the idea of substantive equality is capable of addressing diverse forms of social and economic inequality, and that the legal form of substantive equality adopted by the constitutional court, emphasising context, impact, difference and values, has some potential for achieving meaningful social and economic change by and through courts. However, the manner is which the court has engaged with this legal form suggests that the transformative possibilities of equality are constrained by a number of factors. These include institutional concerns, the capacity and willingness of judges to recognise and address the multiple systemic inequalities that still pervade our society as well as their ability to develop a consistently transformative jurisprudence that applies the ideas of substantive equality to the concepts and doctrines that underpin many equality claims.


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