Dear friend of the FMF
In this week’s feature article, Martin van Staden unpacks the problematic notion that all people must be made equal in a substantive manner. This view places a certain level of responsibility on the state and inherently requires the violation of individual rights in favour of ‘desirable’ outcomes. The problem arises with a radically different reading of the Constitution’s guarantee of equality in section 9; whereas as before it was limited to all people are equal before the law, it now means that people must be made equal in other aspects as well. Van Staden advocates for robust debate around this section, and other parts of the Constitution, lest we lose what was truly intended.
Substantive equality cannot override formal equality – MARTIN VAN STADEN
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.
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Publish date: 21 December 2017
The views expressed in the article are the author’s and are not necessarily shared by the members of the Foundation.