Equality and difference: constitutional contours and interpretation

From the point of view of diversity management, the new South African Constitution insisted on equality, with less gravitas on religion and culture, as a reaction to the painful past. This is also due to the treatment of religion and culture as a private matter, where the State had little or no interest in regulating the private sphere.18 The key right towards the new constitutional goals was therefore equality.

Equality is guaranteed by Section 9 of the 1996 Constitution and includes three elements: first, under Section 9(1) the right to equality before the law, equal protection and benefit of the law; second, under Section 9(2) the possibility for the State to protect and advance previously disadvantaged groups; and Section 9(3) of the final Constitution prohibits unfair direct or indirect discrimination on many grounds, including race, gender, sex, pregnancy, age, disability, religion, conscience, belief, culture, language and birth by both the State as well as private individuals (Section 9(4)).19Additionally, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of2000 created a network of Equality Courts around the country that are designed to provide a quick and effective way of resolving unfair discrimination disputes.[1]

In terms of education, equality implies the equal enjoyment of constitutional rights in the sense that all learners are entitled to receive a basic education. It also

  • 17 Bennett (2010) at 31. These courts have been consistently criticized, however, for inadequate application of judicial standards as recognized by the Constitution.
  • 18 Bennett (2010) at 30.
  • 19 For specific categories of vulnerable groups, Article 9(2) of the Constitution also allows reverse discrimination as follows: “To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken”. Section 1 of the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 reminds the prohibited grounds for discrimination as follows:

“(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability', religion, conscience, belief, culture, language and birth; or

(b) any’ other ground where discrimination [is] based on that ground:

i causes or perpetuates systemic disadvantage;

ii undermines human dignity'; or

iii adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a)”.

Avoiding religion ? 117 covers the accommodation of difference, including breaking down patterns of disadvantage.

For all other rights, equality is also subject to a general limitation clause under s.36 (1) of the 1996 Constitution that explicitly provides that: “[t]he rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors”. In Hugo, the Court explained its position towards unfair discrimination as a violation of the principle of equality in a contextualized manner as follows:

At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitutional should not be forgotten or overlooked.

To add a bit further that:

To determine whether that impact was unfair it is necessary to look not only at the group who has been disadvantaged but at the nature of the power in terms of which the discrimination was effected and, also at the nature of the interests which have been affected by the discrimination.

In legal interpretative terms, it is therefore essential to focus on the impact of discrimination on the alleged victim: Does that create indirectly a constitutional

1

CCT 11 /96 President of the Republic of South Africa and Another p. Hugo ( 1997) ZACC 4;

BCLR708; (1997) (4) SA 1 (18 April 1997). The court referred to the 1993 Constitution but it remains relevant for the equality provisions in the final 1996 Constitution.

2

CCT 11/96 President of the Republic ofSouth Africa and Another v. Hugo (1997) ZACC 4; BCLR 708; (1997) (4) SA 1 (18 April 1997), at para. 41.

3

CCT 11/96 President of the Republic ofSouth Africa and Another v. Hugo (1997) ZACC 4; BCLR 708; (1997) (4) SA 1 (18 April 1997), at para. 43.

4

Section 14 of the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 provides guidelines for the assessment of fairness or unfairness as follows:

  • 14(1) It is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantages by unfair discrimination or the members of such groups or categories of persons.
  • (2) In determining whether the respondent has proved that the discrimination is fair, the following must be taken into account:
  • (a) the context;
  • (b) the factors referred to in subsection (3);
  • (c) whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned.

right to be treated differently under the South African Constitution? When assessing the constitutionally permitted level of differential treatment, the Supreme Court stated early on, realizing the challenge ahead that:

It must be accepted that, in order to govern a modern country efficiently and to harmonise the interests of all its people for the common good, it is essential to regulate the affairs of its inhabitants extensively. It is impossible to do so without differentiation and without classifications which treat people differently and which impact on people differently.

Within the Harksen case, Sachs J, in his dissenting opinion, stressed further the necessity to evaluate “in a contextual manner how the legal underpinnings of social life reduce or enhance the self-worth of persons identified as belonging to such groups”.[2]

He then went on to state further:

The State . . . should not regulate in an arbitrary manner or manifest ‘naked preferences’ that serve no legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental premises of the constitutional State.

So, while there is no overt right to be different in the South African Constitution, it has been deducted from the existing provisions of the constitutional text. In Christian Education, Sachs J based a recognition of such right to difference through the combination of the constitutional requirement in the preamble of the text for a democratic and open society in an environment of tolerance and

  • (3) the factors referred to in subsection (2)(b) include the following:
  • (a) whether the discrimination impairs or is likely to impair human dignity;
  • (b) the impact or likely impact of the discrimination on the complainant;
  • (c) the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from patterns of disadvantage;
  • (d) the nature and extent of the discrimination;
  • (e) whether there are less restrictive and less disadvantageous means to achieve the purpose;
  • (f) whether the discrimination has a legitimate purpose;
  • (g) whether and to what extent the discrimination achieves its purpose;
  • (h) whether there are less restrictive and less disadvantageous means to achieve the purpose;

i whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to:

ii address the disadvantage which arises from or is related to one or more of the prohibited grounds; or

iii accommodate diversity.

Avoiding religion 1 119 cultural pluralism, combined with the protection of diversity which is an obligation of the State, and ss.31 and 18 of the 1996 Constitution guaranteeing cultural, religious and linguistic rights together with freedom of association.[3] The Court concluded by affirming: “the right of people to be who they are without being forced to subordinate themselves to the cultural and religious norms of others, and highlights] the importance of individuals and communities being able to enjoy what has been called the ‘right to be different’ ”.

In Fourie™ a similar conceptualization of the right to equality also implied the right to be different. The Court again stated:

Equality therefore does not imply a leveling or homogenization of behavior or extolling one form as supreme, and another as inferior, but an acknowledgement and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalization and stigma. At best, it celebrates the vitality that difference brings to any society.

This sort of‘jurisprudence of difference’ affirms and celebrates otherness beyond mere tolerance. It frames a new type of ‘culture of justification’ within a constitutional project that has been described in scholarship as ‘transformative constitutionalism’: it “connotes an enterprise of inducing large-scale social change through non-violent political processes grounded in law ... a transformation vast enough to be inadequately captured by the phrase ‘reform’ in any traditional sense of the word”.

  • [1] Chris Me Connachie, 'Equality' and Unfair Discrimination in Education, Basic Education Rights Handbook—Education Rights in South Africa’, in Faranaaz Veriava, Anso Thom and Tim Fish Hodgson (eds.), Basic Education Rights Handbook: Education Rights in South Africa, Braamfontein/Johannesburg: SECTION 27, 2017, at 93.
  • [2] CCT9/97 Harksen n Lane No and Others (1998) (1) SA 3000 (CC) at para. 125. 2 CCT 9/97 Harksen v. Lane No and Others (1998) (1) SA 3000 (CC), at para. 44.
  • [3] Christian Education South Africa v. Minister of Education (2000) (10) BCLR 1051 (CC) (South Africa), at paras. 23-24. Section 18 of the 1996 Constitution stipulates: “Everyone has the right to freedom of association”. Section 31 on Cultural, religious and Linguistic communities of the same text states: “(1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other memberfs] of that community (a) to enjoy their culture, practise their religion and use their language; (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society; (2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights”. 2 Christian Education South Africa v. Minister of Education (2000) (10) BCLR 1051 (CC) (South Africa), at para. 24. 3 (CCT 60/04) Minister of Home Affairs and Another v. Fourie and Another (2005) ZACC19; 2006(3) BCLR 355 (CC). 4 (CCT 60/04) Minister of Home Affairs and Another v. Fourie and Another (2005) ZACC19; 2006 (3) BCLR 355 (CC), at para. 60. 5 The concept of 'jurisprudence of difference’ reflects MI Young’s politics of difference and relies on ‘quality equality’ described by Young as: “A goal of social justice ... is social equality. Equality refers not primarily to the distribution of social goods, though distributions are certainly entailed by social equality. It refers primarily to the full participation and inclusion of everyone in a society’s major institutions, and the socially supported substantive opportunity for all to develop and exercise their capacities and realise their choices”. (Marion Iris Young, Justice and the Politics of Difference, Princeton University Press, 1990, at 173) 6 K. Klare, ‘Legal Culture and Transformative Constitutionalism’, South African Journal on Human Rights, 14, 1998, 146-188, at 150.
 
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