Substantive equality cannot override formal equality

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.

(Read the rest of the article at the Free Market Foundation…)

The following two tabs change content below.

Martin van Staden

Martin van Staden LL.M. (cum laude) (UP) is a Member of the Rule of Law Board of Advisors and of the Executive Committee of the Free Market Foundation. He is pursuing an LL.D. at the University of Pretoria.

Leave a Reply