The Right to Equality under South Africa's Transformative Constitutionalism: A Myth or Reality?

AuthorMashele Rapatsa
PositionLecturer, School of Law, University of Limpopo (South Africa). PhD in progress, 'Globalisation Studies and Humanitarian Action' University of Groningen, Netherlands
Pages18-35
ACTA UNIVERSITATIS DANUBIUS Vol. 11, no. 2/2015
18
Mashele RAPATSA1
Abstract: This article examines the notion of the right to equality, considerate of South Africa’s
perspective of constitutional democracy which has embedded human rights philosophy at the bedrock
of its redistributive justice. The article derives strength fro m Aristotelian view on equality, and
examines ho w transformative constitutionalism envisioned advancing substantive equality with the
view of restoring society’s sound social and economic relations. It has been observed that equality, in
its formal or substan tive form, will remain a distant dream owing to spiraling triple social challenges
of unemployment, poverty and inequalities. These social problems have been given added impetus by
pervasive trends of dualistic public-private services existing across all sectors of society. This p ublic-
private service is class-based, and largely perpetuates inequalities. Thus, South Africa’s legal
normative framework, often globally commended, is yet to meaningfully infuse into everyday social
realities.
Keywords: equality; human rights; transformative constitutionalism social transformation
1. Introduction
The epilogue to the 1993 Interim Constitution posited the notion of ‘equality’ as
one of fundamental ideals that epitomized South Africa’s constitutional project of
transformation. This would augment the process of transforming the nation from a
deeply divided past, a society that was characterized by strife, conflict, untold
suffering and injustices, to that which is grounded on democratic values, social
justice and protection of fundamental human rights (Small and Grant, 2000). This it
pursues by affirming that a future founded on recognition of human rights,
democracy and peaceful co-existence and development opportunities for all South
Africans irrespective of race, class, colour, belief or sex, is indispensable to the
1 Lecturer, School of Law, University of Limpopo (South Africa). PhD in progress, “Globalisation
Studies and Humanitarian Action” University o f Groningen, Netherlands. Address: Marktstraat 2,
9712PC Groningen, Tel.: +31618672558. Corresponding author: m.j.rapatsa@rug.nl
AUDJ, vol. 11, no. 2/2015, pp. 18-35
The Right to Equality under South
Africa’s Transformative
Constitutionalism: A Myth or Reality?
JURIDICA
19
new democratic dispensation (Langa, 2006). Thus, equality evolves as an all-
encompassing norm which covers wide ranging aspects in society, inclusive of
social interfaces, gender, religion, racial, tribal, economic and political landscapes
amongst others. Indeed, this has been given added impetus by South Africa’s
polarized past which was factually characterized by exclusivity premised on
patriarchal tenets founded mainly to bestow exclusive enjoyment of secure
livelihood to minority race group in society. Hence, the right to equality is an
integral part of South Africa’s history, present jurisprudence and shall continue to
play a crucial function in modelling the country’s transformation agenda, its
friendliness towards the human rights ideology, social settings and people’s
relations and legal developments at large.
In perspective, it has been twenty one years since South Africa made a
groundbreaking transition and leaped into a democratic dispensation premised on
constitutional supremacy. This 1994 democratic dispensation officially brought an
end to apartheid, a long-standing repressive regime which retains the status of
dismal human rights record in the history of South Africa (Sarkin, 1999; Landsberg
and Mackay, 2006). The apartheid regime embedded widespread systems of
political, economic and social discrimination and disenfranchisement (Klotz,
1995), thereby rendering the right to equality a dispensable theory. This enabled
structural inequalities on race, economic and geographical grounds to be a common
phenomenon (Ngwena, 2000). Therefore the 1994 transition explicitly culminated
in high optimism that all citizens would from then onward be afforded the right to
equality, which would be fully respected and protected under law. Perhaps, it is
significant to note that the majority of South Africans supported the broader cause
of fighting to eliminate apartheid because in principle, they yearned for equality
before the law, and that was in accordance with aspirations of safeguarding and
advancing preservation of human worth. The primary goal was arguably to seek an
end to inequalities and unjustifiable discrimination (Currie & de Waal, 2005),
which were prevalent in both public and private domain, as were discernible in the
content and application of the law itself (Albertyn, 2007).
2. Rationale and Methodology
At the center of attention in this article is the notion of the ‘right to equality’. It is
written from social, economic and legal perspectives. The primary purpose of this
article is to consider the importance of the right to equality within the context of

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