South Africa

‘Site of struggle’ – The role of SA’s courts in forging transformative pathways through equality law

13 Apr 2025

In her address at the 19th annual Human Rights Lecture at Stellenbosch University, renowned legal scholar Professor Cathi Albertyn advocated for advancing a more transformative idea of equality in South Africa, using the ‘clear building blocks’ in legal substantive equality.

South Africa’s courts have been an “important site of struggle and deliberation” over the meaning of equality and the role of the right in addressing the country’s deep and ongoing structural inequalities.

These were the words of Professor Cathi Albertyn, National Research Foundation Chair in Equality, Law and Social Justice at the University of the Witwatersrand’s School of Law, who was sharing her reflections on whether equality law has succeeded in forging transformative pathways in the country.

Albertyn delivered the 19th annual Human Rights Lecture at Stellenbosch University on 9 April, titled Substantive Equality in South Africa: Past, Present and Future.

“After 30 years and about 50 section 9 cases in the Constitutional Court, I believe that the idea of equality in our constitution remains robust and – with notable exceptions – the right is capable of being used and developed in creative and transformative ways,” Albertyn said.

Evolving equality law

In the 1990s, equality was a key consideration in the political negotiations for a new democratic constitution. The ANC and its allies, as well as a mobilised constituency of women, advocated for a “redistributive and interventionist value of substantive equality and a powerful equality right” to address discrimination across the public and private spheres, Albertyn said.

At the same time, almost all white parties embraced the idea of “formal equality”, which was generally expressed through a libertarian call for individual liberty and restraints on state intervention.

“This idea of formal equality did not find its way into our constitutional text. On the contrary, the South African Constitution enshrines a substantive and redistributive equality,” Albertyn said.

“For those of us working on equality in the 1990s, the constitutional framework was a crucial first step, but we knew that the precise meaning of equality was always open to political, economic and legal debate. What equality would mean ‘in fact’ would depend on its interpretation and implementation, primarily by the political branches, but also in how it was interpreted and enforced via the courts.”

Section 9 of the Constitution is the legal mechanism for challenging particular forms of inequality, while section 9(2) permits and defends positive measures targeted at disadvantaged groups.

“Legal substantive equality is concerned with addressing historical and contemporary patterns of discrimination and disadvantage in certain groups. These groups are defined by particular grounds or characteristics, such as race, gender or disability, that are tied to these forms of disadvantage,” Albertyn said.

“Equality law addresses horizontal equality between social groups, not the vertical equality of economic groupings. However … social and economic disadvantage usually clusters in particular groups which experience multiple harms, so successful claims can have distributive consequences.”

Albertyn noted that formal equality automatically equated any differential treatment on the basis of sex or race with discrimination, while substantive equality recognised that differentiation might be necessary to achieve equality.

“In recent weeks, we have heard much from the USA about how ‘race laws’ in South Africa discriminate against whites. These ‘terrible things’ have justified the withdrawal of funding and economic agreements, putting jobs, health and lives at risk. Formal equality is back, with a particular vengeance,” she noted.

Dignity and transformation

In South Africa’s equality jurisprudence, dignity has been used as the marker for evaluating discrimination, centring on the idea that everyone has “intrinsic moral worth” and is entitled to equal concern and respect. If a person has not been treated with equal concern or respect, they have suffered unfair discrimination, explained Albertyn.

“In doctrinal terms, a dignity approach ticks many of the boxes of legal substantive equality. However, it is limited by a singular concern with dignity and a focus on individual harms over structural inequalities,” she said.

“This inclusive substantive equality jurisprudence is best illustrated in the sexual orientation discrimination cases. The first case, National Coalition for Gay and Lesbian Equality v Minister of Justice [1998], focused on the individual effects of stigma, stereotype and prejudice, and the consequent impairment of dignity, on gay men as a result of the criminalisation of same-sex sexual conduct.”

“More recently, I’ve argued for the value of achieving equality in our Constitution to address the idea of ‘equality of condition’,” Albertyn said.

“It seeks not ‘equal concern and respect’, but a multi-faceted and multi-layered equality of condition. It aims to identify and change conditions of inequality. These include those social and economic structures and institutions, and their taken-for-granted norms and conventions, that create and reproduce inequality, whether these be around class, racial supremacy, sexuality [or] gender.”

Equality of condition aims to create an environment in which everyone is afforded real, substantive opportunities for decent work and a living wage, meaningful social protection, quality education and access to good healthcare, she said.

Multi-dimensional equality

A “more transformative jurisprudence” would require a clear focus on multi-dimensional equality and intersectionality (when a group is defined by two or more characteristics, such as black, queer, women), Albertyn explained.

“It would also pay more attention to identifying structural inequalities, including a concern with indirect discrimination, and a willingness to examine the private sphere and to address economic inequality,” she said.

Albertyn suggested that gender equality cases could provide a basis for developing a better understanding of multi-dimensional inequality. She cited the example of Mahlangu v Minister of Labour, a case dealing with the exclusion of domestic workers from compensation for workplace injury or death.

“Here [acting Justice Margie Victor] draws on the different dimensions of equality, as well as the idea of intersectionality, in a deep contextual analysis of the position of domestic workers. The case is noteworthy for its weaving of race, gender, poverty and class in discussing the historical and contemporary plight of domestic workers,” Albertyn said.

“In this respect, [the Mahlangu case] demonstrates how courts can tackle complex forms of horizontal inequality without losing sight of wealth inequality, poverty and class via a detailed attention to context and the intersectional use of grounds.”

In advancing a more transformative idea of equality, the possibilities for change remain primarily in politics, Albertyn said. However, “cases and constitutional interpretations matter”, especially when law and rights are understood as sites of struggle. DM

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South Africa

Evolving equality law

Dignity and transformation

Multi-dimensional equality