Author: Martin van Staden

Date: 20 December 2017

It is now well-accepted in South African constitutional jurisprudence that the Constitution’s guarantee of equality in section 9 is not merely concerned with ‘formal’ equality (equality at law), but endorses a notion of ‘substantive’ equality. Formal equality is, however, still the root of the provision, and it thus cannot be argued that substantive equality supersedes the former. The law must still apply equally on a non-racial, non-sexist basis.

Substantive equality means government must in practice venture to make people more equal in terms of material wealth. This has manifested in the form of employment equity, quotas, and general racial-preferencing. There is a lot of debate about whether this is desirable or even possible.

In the first case, is parity really what South Africans should aspire to – rather than aiming as high as they possibly can? In the second case, human nature and the laws of economics have shown repeatedly that with the divergences of culture, individual interests, capabilities, etc., complete equality is impossible. The only type of plausibly-achievable equality is equal protection of the law.

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Martin van Staden

Martin van Staden LL.B. (Pretoria) is Legal Researcher at the Free Market Foundation and is pursuing a Master of Laws degree at the University of Pretoria.

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