Section 9 in a time of COVID: Substantive equality, economic inclusion and positive duties

Abstract

Within the broad context of deepening inequality and poverty under Covid-19, this article examines three equality-related cases that address the distribution of economic relief to mitigate the effects of the pandemic in South Africa. In doing so, it explores three broad themes. First, what the cases reveal about ongoing political and legal contestation over the meaning of equality and the application of the equality right. Second, the disjuncture that exists between the powerful inclusive tendencies of the s 9(3) protection against unfair discrimination and the limits imposed on this by poor implementation and questions of economic inclusion and (re)distribution. Third, how courts understand the place of race, gender and other criteria of disadvantage in the distribution of emergency relief. Overall it draws out the contours of the courts’ commitment to substantive equality. Here it emphasises their role in economic inclusion and an emerging interpretive approach which gives rise to constitutionally mandated positive duties on government to consider race and gender disadvantage in questions of economic relief. This development, it suggests, fits with an emergent positive duties jurisprudence in socio-economic rights cases that can be further developed to hold the state accountable for the achievement of substantive equality.