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

• Author: Mashele Rapatsa
• Position: Lecturer, School of Law, University of Limpopo (South Africa). PhD in progress, 'Globalisation Studies and Humanitarian Action' University of Groningen, Netherlands
• Pages: 18-35

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