Cases and Comments

Albertyn, Catherine; Goldblatt, Beth; Plasket, Clive

doi:10.1080/02587203.1998.11834987

Cited by 3 publications

(7 citation statements)

References 0 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

“…Proponents of substantive equality, on the other hand, have exposed the way in which formal equality's abstract individualism and legal neutrality have masked the complex reality of inequality in which people have unequal access to resources or lack 'sufficient power to control or value their own lives'. 62 In contrast, substantive equality has embraced unequal treatment, 63 recognising that the goals of equality cannot be achieved by insisting on identical treatment in all circumstances. 64 A commitment to substantive equality is a positive commitment to progressively eradicate 'socially constructed barriers to equality and to root out systematic or institutionalised under-privilege'.…”

Section: Substantive Equality and The Van Heerden Inquiry A Unpackmentioning

confidence: 99%

What's so wrong with quotas? An argument for the permissibility of quotas under s 9(2) of the South African Constitution

Ramalekana

2020

Constitutional Court Review

View full text Add to dashboard Cite

While s 15(3) of the Employment Equity Act expressly prohibits the use of quotas as affirmative action measures, it is not clear whether quotas fall outside the scope of permissible affirmative action measures under s 9(2) of the Constitution. In the 2015 High Court judgment, South African Restructuring and Insolvency Practitioners Association v Minister of Justice and Constitutional Development & Others ('SARIPA'), the court found that quotas violate the rights to equality and dignity and are thus impermissible under s 9(2). In 2016, the Supreme Court of Appeal affirmed the High Court's judgment, reasoning that quotas were arbitrary and amounted to caprice and naked preference. When the matter reached the Constitutional Court, Jafta J's majority failed to engage with this question. In contrast, in his dissenting opinion, Madlanga J showed some scepticism towards the lower courts' approach to quotas but did not make a definitive finding. Sharing the scepticism in Madlanga J's dissent, this article argues that while absolute barriers to the advancement of non-beneficiaries may violate the right to dignity and fall outside the scope of s 9(2), quotas, however rigid, do not necessarily have this impact. The article argues that the lower courts' findings in this case and, in particular, their extension of the prohibition of quotas to include a prohibition under s 9(2) of the Constitution, are erroneous for three reasons. First, they are based on a much higher standard of review for affirmative action than that envisaged under the Van Heerden test. Second, the courts do not distinguish between quotas and absolute barriers. Third, they are premised on a misunderstanding of the nature of the dignity harm that we are concerned with in the review of affirmative action measures. Ultimately, the article argues that an absolute prohibition of quotas under s 9(2) of the Constitution would have the impact of entrenching patterns of disadvantage, contrary to South Africa's commitment to substantive equality.

show abstract

Section: Substantive Equality and The Van Heerden Inquiry A Unpackmentioning

confidence: 99%

What's so wrong with quotas? An argument for the permissibility of quotas under s 9(2) of the South African Constitution

Ramalekana

2020

Constitutional Court Review

View full text Add to dashboard Cite

show abstract

“…Like socio-economic rights, justificatory and rights issues are built into the same enquiry. 6 Mokgoro J, in a minority judgment, argued for care to be taken in determining which measures fall within the scope of s 9(2) so that it is not used in circumstances for which it was not intended. She explained that improper use of s 9(2) could potentially lead to unfair discrimination.…”

Section: (C) Positive Measuresmentioning

confidence: 99%

“…Essentially reasonableness review seeks to preserve a margin of discretion for the state in selecting particular policies to give effect to socio-economic rights whilst retaining the courts' jurisdiction to review whether these choices are consistent with the constitution. 6 reasonableness review entails an assessment of whether government has adopted and properly implemented a coherent, comprehensive and transparent 7 programme that is capable of facilitating the realisation of the relevant rights.…”

Section: (C) Evaluating 'Reasonableness Review'mentioning

confidence: 99%

“…there remain, however, several gaps in government social policies that result in the inadequate provision of people's socio-economic rights. despite economic growth, unemployment has increased or at best decreased marginally 6 and currently almost half of the population lives below the poverty line.…”

mentioning

confidence: 99%

“…this requires redressing pervasive forms of status subordination based on, for example, race, gender, and sexual orientation as well as systemic patterns of social and economic disadvantage. 6 the Bill of rights recognises this transformative imperative through including, inter alia, a strong and detailed equality clause in s 9 as well as an extensive range of socio-economic rights. this constitutes an important acknowledgment of the significance of both group-based disadvantage and socio-economic barriers to the attainment of social justice.…”

mentioning

confidence: 99%

See 2 more Smart Citations

The Interrelation Ship Between Equality and Socio-Economic Rights Und Er South Africa’s Transformative Constitution

Liebenberg¹,

Goldblatt²

2007

South African Journal on Human Rights

Self Cite

View full text Add to dashboard Cite

Professor, Stellenbosch university, HF oppenheimer chair in Human rights Law. ** Senior researcher, centre for Applied Legal Studies, university of the Witwatersrand. We would like to acknowledge the comments on this article received from participants in the conference on 'Equality as a Social right: towards a concept of Substantive Equality in comparative and International Law' held at the International Institute for the Sociology of Law in onati, Spain, on 2-23 June 2006 where an earlier version of this article was first presented as a paper. thanks also to cathi Albertyn and an anonymous referee for helpful comments and suggestions.

show abstract

The Transformative Potential of the Constitutional Environmental Right Overlooked in Grootboom

Fuo

2021

Obiter

View full text Add to dashboard Cite

It is axiomatic that Grootboom (Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) hereinafter “Grootboom”) remains the hallmark of the Constitutional Court’s success in terms of its transformative socio-economic rights jurisprudence. In this regard, De Vos has argued that lawyers and legal academics who wish to pursue the transformative possibilities of the Bill of Rights may find much to assist them in the Grootboom case. One of the reasons for De Vos’s recommendation is that the Court acknowledged the transformative nature of the Constitution in this Case and strongly asserted the interrelated, interdependent and mutually reinforcing nature of the rights in the Bill of Rights in achieving the transformative objectives of the Constitution. The purpose of this article is to reflect on the court’s transformative jurisprudence in Grootboom and to argue that, although the court strongly asserted the interrelated and interdependent nature of the variety of rights in Bill of Rights in fostering the transformative vision of the Constitution, it failed to highlight the centrality of the section 24 environmental right in fostering that vision. This article argues that the realization of elements of the section 24 environmental right are indispensible to the realization of rights that are generally perceived as having transformative potentials – rights entrenched in sections 26(1) and 27(1) of the Constitution. Drawing from a variety of sources, this article demonstrates the intersection between these rights and argues that the fulfilment of the section 24 environmental right can also contribute to the transformative vision of the Constitution.

show abstract

Cases and Comments

Cited by 3 publications

References 0 publications

What's so wrong with quotas? An argument for the permissibility of quotas under s 9(2) of the South African Constitution

What's so wrong with quotas? An argument for the permissibility of quotas under s 9(2) of the South African Constitution

The Interrelation Ship Between Equality and Socio-Economic Rights Und Er South Africa’s Transformative Constitution

The Transformative Potential of the Constitutional Environmental Right Overlooked in Grootboom

Contact Info

Product

Resources

About