Looking backward, looking forward: race, corrective measures and the South African Constitutional Court

Abstract

The Constitutional Court has dealt with racially based corrective measures against the background of the Court’s understanding of South Africa’s apartheid past and the lingering effects and consequences of this past on post-apartheid society. While the Court has not always demonstrated a sufficient degree of care when deploying racial categories, its jurisprudence also gestures at the need for a contingent and critical approach to race when engaging with the problem of race-based corrective measures. The Constitutional Court’s jurisprudence on constitutionally permissible (or required) race-based corrective measures is discussed and I point out that the way the Court deals with this question opens up space for a constructive engagement with legally mandated race-based corrective measures to avoid some of the pitfalls highlighted in the article.