Catherine Albertyn

Substantive Equality and Transformation in South Africa

Abstract 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.

Law, Gender and Inequality in South Africa

Post-apartheid South Africa has seen the extensive use of law to address the inequalities of the past. This article looks at the role of law in addressing gender-based inequalities, considering how it has addressed “recognition” in terms of womens status and social subordination, as well as questions of redistribution and economic inequality. South Africa has been particularly successful at extending legal rights and benefits of recognition, and at entrenching in law powerful normative frameworks that challenge traditional gender roles. Redistribution, on the other hand, has been primarily race-based, with limited policies and substantive rights that address gendered economic inequalities. The law and courts have played a lesser role here. The ability of law to redress inequality through transformative social and economic change is limited. However, it can be an important site of struggle in the engagement of cultural norms and social attitudes, as well as economic policy. The article concludes that, apart from concrete rights and benefits, the normative frameworks of law offer significant strategic opportunities for pushing at the boundaries of inequality and exclusion in the public and private spheres.

Introduction : substantive equality, social rights and women : a comparative perspective

Developed, developing, and transitional countries are all marked, to different degrees and in different ways, by deep inequalities of gender, race, disability, religion, sexual orientation, and other fault-lines of prejudice, disadvantage, and exclusion. In many countries, equality legislation initially sought to free individuals from the negative effects of these group characteristics, believing that in a colour-blind and gender-neutral world individuals could thrive and develop their potential free from stereotypical assumptions.

Special issue on disability : introduction

The inspiration for this SAJHR Special Issue can be found in two significant developments which are historically parallel and complement each another in the sphere of equality jurisprudence. The first is the development of a jurisprudence of substantive and transformative equality under the South African Constitution by the Constitutional Court in the post-apartheid era. The hallmark of substantive equality has been its departure from formal equality and its embrace of inclusion, difference and diversity. Yet, although the Constitutional Court has had occasion to apply substantive equality to many protected groups, others, such as disabled people, still await their turn. This Special Issue seeks to fill this gap by providing a forum in which to tease out some of the equality issues that obtain in disability.

Dignity and Constitutional Transformation

The South African Constitution places three values at the heart of its democracy: human dignity, the achievement of equality, and freedom. These values give substance to the vision of the Constitut...

Religion, custom and gender: marital law reform in South Africa

This article analyses the legal processes of recognising customary and religious (Muslim) marriages in South Africas constitutional democracy. It argues that the best interpretation of the Constitution requires laws that address cross-cutting issues of recognition and redistribution relating to religion/culture and gender, and that the best way to achieve this is through a ‘pluralistic solidarity’ that enables dialogue on how to secure cultural and religious recognition without undermining the rights of women. It examines how the different processes of cultural/religious law reform in South Africa have become sites of struggle over the meaning of collective and individual identity, public/private power, citizenship and rights, and gender and democracy, and how particular sociopolitical conditions, ideological struggles and overarching conflicts and interests have shaped each process of law reform. Thus it distinguishes between the ideal and the possible, the normative and the strategic, in law reform. It notes the conditions under which the incomplete process of recognition of Muslim marriage law has seen a greater deference to religious norms and private regulation than customary law reform, which saw a greater institutionalisation of gender equality norms. The article concludes by emphasising the open-ended nature of legal processes, the possibilities of using courts to challenge ongoing inequalities in religion and custom, and the ever-present role of politics in legal outcomes.

Introduction : special focus on Rights and Regulation

Rights and Regulation is the special focus of this issue of the South African Journal on Human Rights. While the majority of this part contains articles and current developments of general interest, the Rights and Regulation focus is nevertheless an important one. It originates from the Law and Society Associations 2006 Summer Institute held at the University of the Witwatersrand, Johannesburg. The Institute was an intensive postgraduate student-focused research and career workshop.