n South African Law Journal - R v Kapp : a model for South African affirmative action jurisprudence?




In the recent case of , the Canadian Supreme Court reconsidered the relationship between affirmative action and the right to non-discrimination. Unlike the previous judgment of , the court decided that governmental measures with an ameliorative objective are not susceptible to an attack based on the right to non-discrimination. In essence, the court held that in order to be constitutional, affirmative action needs to satisfy a rational relationship test only. This deviates from the approach in , where the court attempted to establish an integrated approach in order to facilitate the dual function of the equality clause to both allow remedial measures and to prevent discrimination. did not succeed in aligning the affirmative action clause with a comprehensive, inclusive and integrative notion of substantive equality. The judgment is important for South Africa because of the methodological and doctrinal similarity of the two countries' equality law, as well as the textual resemblance between their respective affirmative action clauses and the fact that the Constitutional Court's leading judgment in this respect, , closely resembles the reasoning of .


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