The limitations of restitutionary equality

Abstract

This is compact review and analysis of state of law in South Africa .  Specific reference is made what has been called or equality. From analysis it appears current law shows certain imbalances are difficult reconcile with provisions of Constitution. To point out shortcomings in law which is well intended resolve burning problems of inequality, can easily be misunderstood in contemporary circumstances as reactionary resistance against necessary process of justifiable drive for equality. Such is certainly not purpose of this review. The intention is however argue position striving for must be balanced process in order ensure boundaries of themselves are not transgressed, since would contradict very essence of equality. In first section constitutional provisions on are briefly described. It is noted Constitution does not establish a right but it consistently deals with as value. The wording of section 9 does however justify term such as the right. Next approach of judiciary equality, in which analytical steps of interpretation were developed by Constitutional Court are set out, is reviewed with special mention of role has been allocated value of human dignity in interpretation and applicaion of rights. In third section an answer is sought question what means. As opposed choice of jurisprudence in USA for formal notion of equality, South African courts operate with concept of equality. It is in this context mention is made of remedial or restitutionary equality.  Equality is given meaning which implies action.  This is supported partly by wording of sections 1 and 9(2) of Constitution, but not by formulation of sections 7(1), 9(1), 36(1) or 39(1). The only constitutional provision which imparts meaning directly notion of equality, is section 9(2), providing includes full and equal enjoyment of all rights and freedoms. This gives meaning as value, rights and as description in Constitution of nature of society is being striven for. The complexity and multi-faceted nature of does not allow for simplistic approach its meaning. The boundary between and inequality is quite sharp and mobilization of for achievement of political, ideological or pragmatic goals can readily lead inequality and injustice. Against this background most important pieces of legislation, Employment Equity Act, 1998 and Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000, are discussed. These Acts were adopted to promote achievement of equality, legislative and other measures designed protect or advance persons, or categories of persons, disadvantaged by unfair in terms of section 9(2) of Constitution. Both however contain provisions go beyond scope of Constitution by e.g. addition of grounds upon which unfair discrimination is prohibited and by excluding affirmative action measures from meaning of unfair discrimination. The Constitution can not be interpreted in manner would allow unfair discrimination for any purpose. The legislation however seem disregard possibility of affirmative action becoming discriminatory in itself. This resonates with view substantive equality allows for measures that favour relatively disadvantaged groups at expense of those who are relatively well off. It is however submitted not current ideology behind affirmative action, nor one's preferred understanding of or analytical model is being used, can determine what justifiable content of law should be:  question is rather what may be justified in law, specifically under Constitution. The form in which elements of legislation are cast, viz. guidelines for its application and illustrative lists of unfair practices, harbours danger uncareful interpreters of law could be seduced give precedence legislation above Constitution. This would result in persecutory application of law in terms of examples in stead of constructive and principled approach required by Constitution. The laws also attempt extend list of grounds contained in section 9(3) of Constitution upon which discrimination is presumed be unfair by addition of HIV status, family responsibility, political opinion, socio-economic status, nationality and family status. The constitutionality of amending section 9(3) in this manner by means of ordinary legislation is suspect, especially if it is considered differentiation which is justifiable under Constitution may be rendered unfair discrimination under ordinary legislation. It is concluded an emphasis on only restitutionary element causes conceptual tension occur within multi-faceted notion of equality. This can not be explained only in terms of distinction between formal and equality, since an over-emphasis of restitution will inevitably bring about imbalances in outcome of actions, i.e. within framework of striving for equality. Some commentators, courts and legislature tend attempt improve on Constitution insofar as achievement of is concerned. It is submitted such attempts are unnecessary, since Constitution makes sufficient provision for restitutionary process while balance of comprehensive notion of is maintained in form of as core value. The limitation of concept of restitutionary will unjustifiably impoverish and partially neutralize constitutional text. Lessons must in this regard be learnt from pre-constitutional errors of positivistic legal interpretation.