SUBSTANTIVE EQUALITY AND

TRANSFORMATION IN SOUTH
AFRICA
Catherine Albertyn*

Abstract
This article considers whether ‘substantive equality’, as a transformative idea and legal
mechanism in the South African Constitution, can generate legal solutions and court deci-
sions that may result in transformative change. It does so by establishing a framework for
analysing the ‘inclusionary’ or ‘transformatory’ effects of equality cases in relation to gender
and sexual orientation. It argues that the idea of substantive equality is capable of addressing
diverse forms of social and economic inequality, and that the legal form of substantive equal-
ity adopted by the Constitutional Court, emphasising context, impact, difference and values,
has some potential for achieving meaningful social and economic change by and through
courts. However, the manner is which the Court has engaged with this legal form suggests
that the transformative possibilities of equality are constrained by a number of factors.
These include institutional concerns, the capacity and willingness of judges to recognise and
address the multiple systemic inequalities that still pervade our society as well as their ability
to develop a consistently transformative jurisprudence that applies the ideas of substantive
equality to the concepts and doctrines that underpin many equality claims.

I Introduction
This article engages the idea that ‘equality’ in the South African Constitution
can generate legal solutions and court decisions that may result in transforma-
tive change in South Africa. It does so by identifying the possibilities of
‘substantive equality’ as a transformative idea and legal mechanism, before
analysing some of the Constitutional Court’s equality cases that deal with
issues of social transformation (gender and sexual orientation). The article
suggests that the idea of substantive equality contemplates both social and
economic change and is capable of addressing diverse forms of inequality
that arise from a multiplicity of social and economic causes. In addition, the
legal form of substantive equality adopted by the Constitutional Court, with
its emphasis on context, impact, difference and values, has some potential for
achieving meaningful social and economic change by and through courts.
However, the manner is which the Court has engaged (or refrained from
engaging) with context, difference and values in its equality cases suggests
that the transformative possibilities of equality are constrained. The con-
straints include, inter alia, institutional concerns (questions of the separation

* Professor of Law and Director of the Centre for Applied Legal Studies, School of Law, University
of the Witwatersrand. This article has benefited from the comments of the participants of the work-
shop ‘Equality As A Social Right: Towards A Concept Of Substantive Equality In Comparative And
International Law’ held at the International Institute for Sociology of Law, Onati, Spain, 21–23 June
2006, as well as an anonymous reviewer. This article forms part of a broader research project on
Equality and Transformation.

253
254 (2007) 23 SAJHR

of powers and institutional legitimacy), the capacity and willingness of judges

to recognise and address the multiple systemic inequalities that still pervade
our society (particularly in exploring ‘context’), and the ability of judges to
develop a jurisprudence that applies transformative ideas to the concepts and
doctrines that underpin many equality claims.
This article argues that, despite the broad reach of constitutional protec-
tion of equality, there remain clear legal and social boundaries that are both
normative and doctrinal, that sustain conventionally gendered ideas of society
— women, family, marriage and sexuality. As a result, equality jurisprudence
has broadened the net of ‘inclusion’, but has not necessarily dislodged the
underlying social framework. For the equality jurisprudence to be truly
‘transformative’, rather than merely ‘inclusionary’, the legal application of
substantive equality needs to be more conceptually consistent. This requires
it to be embedded in a broader transformative jurisprudence that is better
able to understand systemic inequalities (social context) and to overcome
legal formalism, especially the chilling effect of traditional legal concepts
and doctrines on transformative outcomes.
Part II explores the meaning of substantive equality in South Africa, and
its relationship to inclusionary or transformative change. Part III discusses
the legal rules of substantive equality followed, in part IV, by an analysis of
selected Constitutional Court cases concerning sex, gender, marital status and
sexual orientation discrimination. Part V discusses the implications of this
analysis for the transformative use of substantive equality.

II  Substantive Equality And Transformation

The call for ‘substantive’ equality emerges from particular understandings
of inequality as rooted in political, social and economic cleavages between
groups, rather than the result of arbitrary or irrational action. It acknowledges
the complexity of inequality, its systemic nature and its entrenchment in
social values and behaviours, the institutions of society, the economic system
and power relations.
A constitutional commitment to substantive equality is thus also a com-
mitment to the eradication of such systemic inequalities. It establishes an
aspirational ideal — the achievement of a society based on equality — and
presumes that this is (at least partly) possible through law. In a constitutional
sense, therefore, substantive equality is both a value and a legally enforce-
able right. In addition, in South Africa, the value and the right of substantive

 In South Africa, the political claim for substantive equality emerged from the constitutional negotia-
tions of the early 1990s, mostly from the women’s movement. See C Albertyn ‘Women and the
Transition to Democracy in South Africa’ in C Murray (ed) Gender and The New South African
Legal Order (1994); S Hassim Women’s Organizations and Democracy in South Africa (2006)
chapter 5. It has also been a dominant theme in South African constitutional scholarship.
 See the preamble and s 1 of the Constitution.
 On this distinction, Minister of Home Affairs v National Institute for Crime Prevention 2005 (3) SA
280 (CC) para 21.
substantive equality and transformation in south africa 255

equality are both central to ideas of social and economic ‘transformation’ and
the role of the law in achieving this.
In thinking more deeply about the nature and possibilities of substantive
equality in South Africa, it is useful to differentiate between different forms
of inequality in order to analyse the extent to which different constitutional
claims, based on such inequalities, are understood and addressed. For the
purpose of argument, I will distinguish between social and economic equality
claims, and between claims based on, and/or that result in, inclusion and trans-
formation. However, the analysis that follows is limited to social claims.
Different groups in society experience a different mix of political, social and
economic inequalities, giving rise different kinds of equality claims. Social
inequalities result in patterns of inclusion and exclusion in which the identity,
culture, values and behaviours of a particular group are stigmatized, mar-
ginalised and/or denigrated, while another group is affirmed and privileged.
Such exclusion may reflect or result in increased vulnerability to physical and
psychological violence and to political marginalisation. Claims arising out of
these inequalities tend to emphasise what Nancy Fraser has called ‘recogni-
tion’, asserting the social identities and values of the excluded group. In South
Africa, many of the claims brought by gay and lesbian groups have been claims
for social recognition of gay and lesbian identities, relationships and families.
In addition, the equality claims by customary wives, cohabiting partners and
sex workers discussed in this article are also, arguably, fundamentally claims
for social recognition.
Equality claims may also arise out of economic inequalities, manifest in the
unequal access to, and distribution of, basic needs, opportunities and material
resources. These claims emphasise economic inclusion, and might also entail
a claim for a (re)distribution of resources. Although these are not discussed
further in this article,10 South African courts have considered both defensive
and positive claims about economic inequality. In Van Heerden v Minister of
Finance11 the Constitutional Court was asked to defend a positive measure
that sought to equalize pension benefits by subsidizing the contributions of
members of a disadvantaged group. This case suggests that the courts will

 I have identified these distinctions elsewhere. See C Albertyn ‘Defending and Securing Rights
through Law: Women, Law and the Courts in South Africa’ (2005) 32 Politikon 217; C Albertyn
‘Equality’ in E Bonthuys & C Albertyn Gender, Law and Justice (2007) 82.
 N Fraser Justice Interruptus (1997).
 In particular, the case of National Coalition for Gay and Lesbian Equality v Minister of Justice
(1999) 1 SA 6 (CC).
 Bhe v Magistrate, Khayalitsha; Shibi v Sithole; SA Human Rights Commission v President of the
RSA 2005 1 SA 580 (CC).
 Volks NO v Robinson 2005 (5) BCLR 446 (CC).
 Jordan v The State 2002 (6) SA 642 (CC).
10 I have discussed this elsewhere. See C Albertyn & B Goldblatt ‘Equality’ in S Woolman et al
(eds) Constitutional Law of South Africa (2 ed 2007) 35, 12–4, 29–42. See also S Liebenberg
& B Goldblatt ‘The Interrelationship between Equality and Socio-Economic Rights under South
Africa’s Transformative Constitution’ (2007) 23 SAJHR 335.
11 2004 (6) SA 121 (CC).
256 (2007) 23 SAJHR

largely defer to government measures,12 and it remains an open question as to

how far courts may nudge government in more transformative, redistributive
directions.13 In Khosa v Minister of Social Development,14 a case assisted by
the conflation of equality and the right to social assistance, destitute perma-
nent residents successfully claimed the extension of social benefits to them.15
In truth, disadvantaged and vulnerable groups usually experience a mix
of inequalities, and many claims include aspects of both social and economic
equality. Gender based claims are thus often claims for equal social recogni-
tion in order to achieve a fairer distribution of resources. The relationship
between claims for social recognition and claims for redistribution is an issue
that is discussed later.
The second distinction is between equality claims that result in ‘inclusion’
and those that contribute to, and result in, ‘transformation’. An inclusive
approach to equality would align with a liberal idea of inclusion into the sta-
tus quo (and may even be achieved through formal equality alone). Inclusion
broadens the umbrella of social recognition, but does not address the struc-
tural conditions that create and perpetuate systemic inequalities. Nancy
Fraser uses the term ‘affirmative’ change to describe a similar process. She
speaks of ‘remedies aimed at correcting inequitable outcomes without dis-
turbing the underlying framework that generates them’.16 On the other hand,
a ‘transformatory’ approach aims to address such inequalities, and thus to
shift the power relations that maintain the status quo. Fraser speaks of ‘rem-
edies aimed at correcting inequitable outcomes precisely by restructuring
the underlying generative framework’.17 To illustrate by way of example: An
inclusionary approach to women would recognize their disadvantage as moth-
ers and accommodate this without shifting the underlying ideas of gender
that establish different, unequal and static roles and institutional positions for
women and men as parents, workers and members of society. A transforma-
tory approach would locate an understanding of women’s disadvantage within
these systemic inequalities, and then seek to dismantle them through new
normative interpretations of equality and through remedies that affirm a more
egalitarian and flexible set of gender roles, and thus dislodge the underlying
norms and structures that create and reinforce a rigid and hierarchical status
quo. In sexual orientation claims, an inclusionary approach would affirm the
identity of gay and lesbian people on an equal basis with heterosexual indi-
viduals and families. A transformatory approach would contemplate a more
radical understanding of society in which dominant heterosexual norms give
way to a plurality of families and relationships.

12 Albertyn & Goldblatt (2007) (note 10 above) 40.

13 Ibid 40–42.
14 Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 (6) SA
505 (CC).
15 See Albertyn & Goldblatt (2007) (note 10 above) 41–42; Liebenberg & Goldblatt (note 10 above)
341–350.
16 Fraser (note 5 above) 23.
17 Ibid.
substantive equality and transformation in south africa 257

Several scholars of South African constitutionalism have addressed the idea

of transformative constitutionalism.18 Substantive equality is closely related to
this idea in South African constitutional discourse, and for some legal schol-
ars and Constitutional Court justices, the idea of substantive equality entails
‘transformatory’ change.19 Recently, Langa CJ described the achievement of
substantive equality as requiring a social and economic revolution in which
all enjoy equal access to the resources and amenities of life, and are able
to develop to their full human potential.20 This requires the dismantling of
systemic inequalities, the eradication of poverty and disadvantage (economic
equality) and the affirmation of human identity and capabilities (social equal-
ity). It also confirms a strong relationship between substantive equality and
the achievement of socio-economic rights.21 Such an approach coincides,
in theory, with the understanding of transformatory change set out above.
However, the idea of transformation is a politically and legally contested
space22 in which the possibilities of substantive equality/transformation are
limited by ‘inclusionary’ approaches and remedies or bolstered by those that
are truly ‘transformatory’. One would thus expect transformatory claims for
social, cultural or political recognition, at minimum, to dislodge the domi-
nant and systemic cultural and social norms and stereotypes that suppress
and subordinate unequal groups, and to engage in the creation of new norms
of equality. Transformatory claims for redistribution, although lodged in a
complex series of economic issues, should, at a minimum, enable forms of
economic redistribution, and seek to reduce rather than entrench poverty and
inequality.
Much of the discourse of substantive equality and transformation is located
in the realm of constitutional values, establishing the vision of the Constitution.
It is an aspiration, a goal that our society seeks to achieve.23 To what extent can
legal claims for equality under s 9 of the Constitution close the gap between
that aspiration and the reality? Can s 9 equality claims result in ‘transforma-
tory change’ that goes beyond the inclusion and accommodation of unequal
groups, such as black people or women, to trigger and/or effect a deeper shift

18 The idea of transformative constitutionalism was arguably first expressed by Karl Klare in ‘Legal
Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146.
19 C Albertyn & B Goldblatt ‘Facing the Challenge of Transformation: Difficulties in the Development
of an Indigenous Jurisprudence of Equality’ (1998) 14 SAJHR 248; M Pieterse ‘What do we Mean
when we Talk about Transformative Constitutionalism?’ (2005) 20 SAPL 155; A J van der Walt
‘Legal History, Legal Culture and Transformation in a Constitutional Democracy’ (2006) 12
Fundamina 1; P de Vos ‘Grootboom, The Right of Access to Housing and Substantive Equality as
Contextual Fairness’ (2001) 17 SAJHR 258.
20 P Langa ‘Transformative Constitutionalism’ (2006) 3 Stell LR 351, 352–353 citing Albertyn &
Goldblatt ibid.
21 For a discussion on the relationship between equality and socio-economic rights see Goldblatt &
Liebenberg (note 10 above).
22 Henk Botha and Johan van der Walt have both written about transformation as a permanent ideal,
in which new ways of being are constantly explored and created, accepted and rejected. H Botha
‘Metaphoric Reasoning and Transformative Constitutionalism’ 2002 TSAR 612; 2003 TSAR 20; J
van der Walt Law and Sacrifice (2005).
23 I have discussed this further in Albertyn & Goldblatt (note 10 above) 1–5, 13–14.
258 (2007) 23 SAJHR

in the systemic inequalities of our society? Is this possible through a legal

approach to substantive equality?

III  Substantive Equality in Law

Part of the answer to these questions lies in the nature of ‘substantive
equality’ law and jurisprudence in South Africa. Legal ideas of substantive
equality differ across jurisdictions and are often linked to the particular legal
precedents and debates within such jurisdictions.24 The legal promotion of
substantive equality in any one jurisdiction will almost inevitably focus on
overcoming existing limitations in anti-discrimination laws and constitutional
jurisprudence. As described elsewhere in this volume, this might include the
strengthening of indirect discrimination or the inclusion of positive measures
within anti-discrimination laws, or a concern with the application of values
in equality jurisprudence.25 The development of substantive equality in South
African constitutional jurisprudence was not constrained by pre-existing
equality regimes, thus providing the opportunity to develop a constitutional
understanding of equality de novo. It was also shaped by a political context
of democratic change, and a global legal context that provided comparative
examples of the limitations of ‘formal equality’ and some jurisprudential
precedents for a ‘substantive’ approach.26
The legal application of ‘substantive equality’ in South Africa has been
developed at some length by the Constitutional Court. Although there has
been some unevenness in the Court’s approach, substantive equality has at
least four characteristics, endorsed by the Constitutional Court, that give it
‘transformative potential’: an emphasis on understanding inequality within its
social and historic context; a primary concern with the impact of the alleged
inequality on the complainant; a recognition of difference as a positive feature
of society; and attention to the purpose of the right and its underlying values
in a manner that evinces a direct or indirect concern with remedying systemic
subordination 27 or disadvantage.28 An additional feature of transformative
substantive equality, achieved through the application of the above, would be
its ability to affirm or imagine a future society through practical (remedies)
and normative (values) means. Underlying all of these characteristics is a nec-
essary retreat from legal formalism and an understanding of law as a product
of social relations that can be re-inscribed with transformative ends.

24 For example, Sandra Fredman has identified at least four ‘overlapping’ approaches to substan-
tive equality: Equality of results, equal opportunities; substantive rights and a broad value driven
approach. S Fredman Discrimination Law (2002).
25 See eg S Mullally ‘Substantive Equality and Positive Duties in Ireland’ (2007) 23 SAJHR 291.; C
Barnard & B Hepple ‘Substantive Equality’ (2000) 59 Cambridge LJ 562.
26 The call for substantive equality in law has important roots in feminist legal theory, and its exposure
of the law’s failure to address the concrete inequalities of women. On the global impact on consti-
tutionalism generally, see H Klug Constituting Democracy (2000).
27 C Pateman ‘Equality, Difference, Subordination: The Politics of Motherhood and Women’s
Citizenship’ in G Bock & S James Beyond Equality and Difference (1992) 17, 28.
28 D Rhode ‘The Politics of Paradigms’ in Bock & James ibid 149. See also R Colker ‘Section 1,
Contextuality and the Anti-Disadvantage Principle’ (1992) 42 University of Toronto LJ 77.
substantive equality and transformation in south africa 259

a)  Context and impact

Substantive equality is understood as a remedy to systemic and entrenched
inequalities. This requires that judges and lawyers understand the context in
which inequality occurs, and identify the social and economic conditions that
structure action and create unequal and exclusionary consequences for groups
and individuals.29 The interrogation of the actual social, political and legal
context in which an alleged rights violation occurs requires an examination
of the substantive arrangements that determine a group’s social or economic
position,30 including the relationship between disadvantaged or vulnerable
groups and more powerful and privileged groups. Care should be taken to
avoid the use of a comparator that intentionally or inadvertently reproduces
inequalities because it reinforces dominant norms and standards. Closely
related to context is the investigation of the impact of the impugned action on
the individual and her group. Equality claims are thus assessed in relation to
lived inequalities. Such lived realities have no formal boundaries, meaning
that courts must interrogate the private sphere and understand the relationship
between law and social arrangements.
Attention to context and impact are both central to equality jurisprudence
in South Africa. In the adjudication of unfair discrimination under s 9(3), the
impact of the discrimination on the complainant and his or her group is said to
be determinative.31 This enquiry is described as a contextual one that consid-
ers, inter alia, the position of the complainant in society and whether she has
suffered from past patterns of disadvantage.32 The Constitutional Court has
described its approach as ‘comprehensive and nuanced’33 in which all relevant
factors have to be considered.
As will be demonstrated below, the manner in which courts engage these
enquiries is a key determinant of the outcome of a case and a crucial indicator
of the achievement of substantive equality through law. Important also is the
extent to which the cases comprehend the systemic foundations of inequal-
ity, and are able to identify practical and normative solutions that begin to
dismantle these inequalities.

29 A contextual approach was adopted by the Canadian Supreme Court in the case of Andrews v Law
Society of British Columbia [1989] 1 SCR 143. In the same case, the court found that ‘to approach
the ideal of full equality before and under the law, the main consideration must be the impact on the
individual or group concerned’ (at 165).
30 See also, the work of Martha Minow who argues that difference does not inhere in the individual
or group but in the relation between individuals and/or groups. It is not the characteristics of the
individual or the group that are the concern, but the social arrangements that make these matter. See
M Minow ‘The Supreme Court 1986 Term, Foreword: Justice Engendered’ (1987–88) 101 Harvard
LR 10 and M Minow Making All the Difference: Inclusion, Exclusion and American Law (1990).
31 See President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) para 43; Harksen v Lane
NO 1998 (1) SA 1300 (CC) para 51 and National Coalition for Gay and Lesbian Equality v Minister
of Justice (note 6 above) para 19.
32 Hugo ibid para 37; Harken ibid.
33 National Coalition for Gay and Lesbian Equality v Minister of Justice (note 6 above) para 19.
260 (2007) 23 SAJHR

b)  Difference
It is widely recognised that the problem of inequality is not difference per
se, but rather the manner in which difference is tied to hierarchies, exclu-
sion and disadvantage. The South African Constitutional Court has affirmed
the importance of difference as a positive feature of society.34 An important
indicator of the law’s capacity to dismantle systemic inequalities lies in its
ability to deal with difference in a practical and normative manner. In a
transformative approach, the law should be able to prohibit difference linked
to discrimination at the same time as it affirms positive and future forms
of difference and diversity. Fundamental to this is the ability to facilitate or
establish new, and non-hierarchical, normative frameworks of participation
and social inclusion.
As seen below, one of the barriers to the transformative use of equality
is the use of a hidden or visible comparator that tends to reinforce existing
hierarchies of difference, rather than shift them.

d)  Purpose and values

The adjudication of equality claims should be grounded in a discussion of the
purpose of the right and the values that underlie it.35 While an analysis of the
context in which the alleged violation occurs enhances the court’s understand-
ing of the legal claim, a clear exposition of the purpose of the right, and of the
constitutional values that underpin it, provide the court with crucial signposts
to a decision most faithful to the Constitution. Again, as discussed below, the
content given to the purpose and values influences whether a particular case
takes a transformative or inclusionary turn.
Feminist and other legal scholars have argued that the purpose and principles
of equality should be derived from an understanding of systemic inequalities
and the goal of removing them. The principles of anti-subordination and anti-
disadvantage are important for achieving transformative ends. This has been
partly captured in South African jurisprudence in relation to s 9(2) on posi-
tive measures, where the redistributive nature of equality is also discussed. 36
The principles are also present in the determination of unfair discrimination
in s 9(3), both independently as a consideration in the fairness enquiry, and
(to a lesser extent) in the value of dignity, the primary value underlying this
section of the right. However, the purpose and values underpinning equality
have also been mechanisms for shaping its boundaries and have not always
served a transformative purpose.37 Finally, one would also expect the courts’
discussion of purpose and values to set transformative aspirational ideals. As
discussed below, this has often proved elusive.

34 Ibid.
35 See Colker (note 28 above). This approach was adopted by the Canadian Supreme Court in Andrews
note 29 above, 171 and by the South African Constitutional Court in its early equality cases (note 31
above).
36 See Albertyn & Goldblatt (2007) (note 10 above) 30–31.
37 Ibid 8–14.
substantive equality and transformation in south africa 261

The next sections ask whether and how South Africa’s equality jurisprudence
has been socially transformative in relation to gender and sexual orientation.
Limitations of space mean that the discussion is necessarily brief and the sec-
tions merely highlight key cases against the backdrop of the jurisprudence as
a whole. The cases have been chosen because they illustrate the positive and
negative boundaries of substantive equality and the extent to which we can
call it ‘transformative’ in the sense identified in this article. As mentioned
above, they focus on claims of social rather then economic equality.

iv Gender, Equality And Transformation

There have been nine Constitutional Court decisions concerned with gender,
including claims based on marital status, but excluding claims based on sexual
orientation (a separate ground in South Africa). These cases relate to issues
of property and access to family resources,38 bodily freedom39 and parent-
ing.40 In this section, I analyse four cases as examples of the legal application
of substantive equality: Firstly, President of the RSA v Hugo41 (on gender
roles) and Masiya v DPP42 (on gender based violence and women’s victim-
hood/autonomy) largely to explore the transformative potential of cases that
apparently show a significant understanding of systemic gender inequalities.
Secondly, Volks NO v Robinson43 on women’s choices and alternative rela-
tionships) and Jordan v The State44 (on women’s choices and sex work) are
discussed for their clear illustration of the social and doctrinal boundaries of
equality protection.

a)  Gender roles (parenting)

Fixed and hierarchical gender roles, in which women are relegated to specific,
and naturalised, roles in the family and home, rather than the public sphere,
have been a fundamental source of gender inequality in many societies. A
transformative legal approach to these issues would see the courts demon-
strate an understanding of these systemic gender inequalities, the manner
in which gender roles have become linked to relations of power, and how
motherhood can be a practical and normative barrier to women succeeding

38 Brink v Kitshoff 1996 (6) BCLR 752 (CC) concerned discrimination in the treatment of husbands
and wives in relation to life insurance policies; in Van der Merwe v Road Accident Fund 2007 (1) SA
176 (CC) the Constitutional Court considered a legislative scheme which prevented a spouse mar-
ried in community of property (but not out of community of property) from claiming patrimonial
damages ‘in respect of bodily injuries suffered by him and attributable either wholly or partly to the
fault of that spouse’; Harksen v Lane NO (note 31 above) concerned sex/gender or marital status
discrimination in insolvency law affecting the rights of insolvent spouses vis a vis each other; Volks
NO v Robinson (note 8 above) was a claim by a co-habiting partner for maintenance from the estate
of her deceased partner.
39 Jordan note 9 above; Masiya v DPP unreported, CCT 2006/54 (10 May 2007).
40 Hugo note 31 above; Fraser v Children’s Court, Pretoria North 1997 (2) SA 261 (CC).
41 Ibid.
42 Note 39 above.
43 Note 8 above.
44 Note 9 above.
262 (2007) 23 SAJHR

in the public sphere (in education and the workplace). However, it would also
provide a public interpretation of equality or a remedy that would contribute
to the subversion of unequal gender roles. Two Constitutional Court cases
have concerned gender roles, both brought by men.45 This discussion focuses
on Hugo.46 This was the Court’s second equality case concerning an equal-
ity challenge to a presidential decree that gave amnesty to women prisoners
with children under twelve years, but not to men prisoners who were fathers
of such children. The President had justified his decision on the basis of the
needs of children and the ‘special role … that mothers play in the care and
nurturing of younger children’.47 The Court found the preference of mothers
over fathers to be fair discrimination.48
Hugo was a difficult case for many reasons.49 However, for the Constitutional
Court it was an early opportunity to talk about gender equality and women’s
burdens in a political context that had affirmed gender equality as a dominant
democratic value.50 For a Court that was but three years old, such an opportu-
nity to build legitimacy proved irresistible. Its conclusion that women’s role
as mothers justified the benefit of an early release, to the exclusion of fathers,
was generally welcomed by feminist and critical scholars for its attention to
the context of women’s lives, and its recognition of the responsibilities and
complexities of motherhood. The Court willingly took judicial notice of the
fact that ‘mothers… bear more responsibilities for child-rearing in our society
than do fathers’,51 that this was often borne without skills or resources, that
it was ‘one of the causes of the deep inequalities experienced by women in
employment’,52 and one of the reasons historically for excluding them from
public life.53
At the same time, there was some disquiet about the judgment’s dismissal
of the small, but vulnerable group of fathers who are single parents and care-

45 Fraser (note 40 above) is not discussed here. It concerned the rights of a biological father to consent
to the adoption of his baby. The case was decided on the basis of marital status, not sex/gender
discrimination.
46 Note 31 above.
47 Ibid para 35.
48 Ibid para 47.
49 The case has been criticised for being heard at all, and there was some disagreement amongst the
judges as to whether the case was wholly academic and effectively moot (Didcott J paras 54–62);
whether prerogative powers were indeed reviewable executive powers (Kriegler J para 65); whether
a prerogative constituted a law of general application (Mokgoro J paras 95–104). All judges agreed
that it was a very difficult case. Subsequently, it has been suggested that the matter should rather
have been decided as a defence of positive measure under s 8(2) of the interim Constitution
(Albertyn & Goldblatt (note 15 above) 79).
50 The role of gender equality in the constitutional negotiations and its eventual place as a key demo-
cratic value is discussed in Albertyn (note 1 above) and Hassim (note 1 above). See also s 1 of the
Constitution.
51 Note 31 above, para 37.
52 Ibid para 38.
53 Ibid para 39. See also O’Regan J’s minority, but concurring, judgment paras 109–110.
substantive equality and transformation in south africa 263

givers.54 It was suggested that the recognition of this group might have resulted
in a more ‘transformative’ judgment as it would have begun to break down the
sex-based barriers of gender.55 A second issue concerned the judgment’s reliance
on women’s role as mothers in a manner that reinforced, rather than transformed,
stereotypical gender roles. Here the judgment exhibits an unresolved tension
between the need to address women’s current conditions of inequality and the
need to transform them.56 The Court’s inability to transcend this tension through
a practical recognition of disadvantage, coupled with a normative assertion of
a more equal society in which women and men are free to make choices about
their lives and are not subordinated by patriarchal gender roles,57 ultimately limits
the transformative possibilities of this case. Despite its progressive recognition
of the systemic inequalities of the sexual division of labour, neither the remedy
nor the jurisprudence takes a further step towards dismantling that disadvantage
and setting the terms for more egalitarian society. In its competing judgements,
the Court treats the need to protect women in their gender roles and the need to
transform these roles as mutually exclusive. It thus ends up protecting women
within the status quo, and normatively affirms their traditional gender roles as
mothers.

b)  Violence and victims

Masiya v Director of Public Prosecutions58 was an appeal against a conviction
in the Regional Magistrates Court (and then the High Court) for rape in which
the courts had developed the common law definition or rape (limited to vaginal
penetration by a male penis) to include ‘acts of non-consensual sexual pen-
etration of the male sexual organ into the vagina or anus of another person’.59
The Constitutional Court was asked to determine whether this development
was consistent with the Constitution. Nkabinde J’s majority judgment finds
that, although the current definition was consistent with the Constitution, the
development of the common law is necessary in ‘the interests of justice’ and
for the proper realisation of the principles, ideals and values underlying the
Constitution. The Court develops the definition to include anal penetration of

54 The court majority considered and dismissed this group for administrative rather than equity rea-
sons (para 48). In her minority judgment Mokgoro J found that ‘stereotypical ideas concerning
men’s aptitude at child rearing is an infringement upon their equality and dignity’ (para 92). See also
Albertyn & Goldblatt (note 15 above); K van Marle ‘Equality: An Ethical Interpretation’ (2000) 63
THRHR 595.
55 Didcott J finds that the respondent’s child was over 12 at the time of the application, disqualifying
him from relief (para 57) However, as the majority of the Court had clearly decided to give a judg-
ment in this case, the fact that the complainant might or might not have qualified under the amnesty
was not an obstacle to a more transformative outcome.
56 This tension is most visible in the dissenting judgment of Kriegler J (para 80–85) and the concurring
judgment of O’Regan J (para 109–113).
57 These points are mentioned by Kriegler J (para 80) and O’Regan J (para 113) but do not form part
of a strong normative statement of equality.
58 Note 39 above.
59 Ibid para 11. The case had proceeded to the Constitutional Court via the High Court, which had
confirmed the conviction and exercised its powers of sentencing in terms of s 52 of the Criminal
Law Amendment Act 105 of 1997.
264 (2007) 23 SAJHR

a female.60 A minority dissenting judgment by Langa CJ (Sachs J concurring)

extended the definition to include male victims of rape as well.61
The case raises interesting issues about transformation. The Court offers
several reasons for its limited expansion of the definition of rape, including
the need to develop the common law incrementally,62 the principle of legality
that mitigates against extending the definition of a crime, and the fact that the
development would entail statutory amendments.63 It also makes strong argu-
ments about the gender-based nature of rape, finding that rape is ‘a crime of
which females are its systemic target … an act of physical domination … [and]
an extreme and flagrant form of manifesting male supremacy over females’.64
Langa J, on the other hand, acknowledged the fact that women were the main
targets of rape at the same time as he asserted the inherent power dynamics of
the act of rape to insist on a gender neutral definition.65
The issues in Masiya potentially echo those in Hugo — both cases are
concerned with the concrete realities of women’s lives and ultimately fail to
address the needs of another vulnerable group: male rape victims or male
care-givers. While neither judgment can be faulted for its concern with issues
of fundamental import for women in South Africa — motherhood and gen-
der based violence, both of which go to the core of gender equality– they
nevertheless raise difficult questions about transformation. If concerns about
equality are to do more than expose systemic inequalities and extend legal
rights and protections to vulnerable and/or excluded groups, then such cases
need to find ways of recognising structural inequalities and seeking to tran-
scend them. While that might sometimes only be possible in normative terms,
it is important to envisage a society in which power and subordination are
delinked from gender. In Hugo, that might have been achieved through a more
positive assertion of parenting roles. In Masiya, it might (at least partly) be
achieved by Langa’s partial delinking of rape from gender, and his insistence
that rape be extended to include male victims as ‘to do otherwise fails to give
full effect to the constitutional values of dignity, equality and freedom’, and
perversely, might even ‘entrench the vulnerable position of women in society
by perpetuating the stereotypes that women are vulnerable’.66 In the end, both
cases demonstrate that the Court has been insufficiently proactive in giving
substantive, transformatory content to our constitutional values.

60 Ibid paras 32 & 45.

61 Ibid paras 75–93.
62 On this aspect of the case see S Dersso ‘The role of courts in the development of the common law
under s 39(2): Masiya v Director of Public Prosecutions Pretoria (The State) and Another CCT
Case 54/06 (10 May 2007)’ (2007) 23 SAJHR 373.
63 Ibid paras 33–36.
64 Ibid para 36. Interestingly, the amicus curiae, the Centre for Applied Legal Studies and Tshwaranang
Legal Advocacy Centre, both organisations with a strong history of women’s rights work , had
provided evidence of the patriarchal and gendered history of rape, and argued for a non-gendered
definition of rape (para 36).
65 Ibid paras 84–86.
66 Note 52 above, paras 80, 85, 86.
substantive equality and transformation in south africa 265

At the same time, this approach is not without risks in a society that has
strong and conservative views about women. Doubtless, there is a concern
that statements about father’s rights and male rape victims can be used in
reactionary ways to deviate from, or deny, the real inequalities and subor-
dination that women experience. Arguably, however, if these statements are
embedded in an understanding of systemic gender-based inequalities, and a
clear exposition of constitutional values, then they can begin to set new terms
for democratic debate. If transformation is about change, then it remains
important to engage precisely those conversations, and to give meaningful
content to our constitutional values.

c)  Women in relationships

Women in South Africa live in a variety of relationships, including marriage.
Beth Goldblatt’s work has reminded us that many people live in co-habiting
relationships,67 some through choice but many because the choice to remain
single, to co-habit or to marry is limited by gendered social and economic
inequalities. Women are poorer and less powerful than men, and often become
economically dependant on their partners, unable equally to influence life
decisions. Co-habiting relationships are almost without any form of legal
protection, and confer no substantive benefits upon a separated or surviving
partner.68
A transformatory approach to co-habiting relationships would acknowl-
edge and understand the conditions that have shaped the legal exclusion of
such relationships, as well as the social and economic inequalities that shape
women’s choices in relationships. It would also set terms for the recognition
of a broader range of relationships, other than marriage, as fundamental to our
society, and provide remedies that ensure the affirmation and protection of the
parties in these relationships, and seek to enhance the choices of vulnerable
parties within relationships.
The extension of legal rights within co-habiting relationships was consid-
ered in Volks NO v Robinson.69 In this case the Court was asked to find the
Maintenance of Surviving Spouses Act 27 of 199070 unconstitutional in that
it excluded partners of co-habiting relationships and thus constituted unfair
marital status discrimination. Even though the respondent eventually con-
ceded the equality claim,71 a majority of the Court rejected this claim, while
a minority agreed that the Act unfairly discriminated on the basis of marital
status and gender.

67 O’Regan and Mokgoro JJ note that 2.3 million people (or about 8% of the adult populations)
described themselves in the 2001 Census as ‘living together like married partners’ although they
were not married (Volks NO v Robinson (note 8 above) para 119).
68 B Goldblatt ‘Regulating Domestic Partnerships ─ A Necessary Step in the Development of South
African Family Law’ (2003) 120 SALJ 610.
69 Note 8 above.
70 This Act enables the surviving spouse who is insufficiently provided for in the will of his or her
spouse to claim reasonable maintenance needs until death or remarriage.
71 Note 8 above, para 26.
266 (2007) 23 SAJHR

The majority judgment is disappointing in its limited understanding of

context, its privileging of marriage and its consequent failure to embrace a
contextual or progressive idea of cohabitation. The Court’s uncritical prioriti-
zation of marriage as a foundation of our society, without any reference to its
historically racial and gendered nature, allowed it to conclude that it was not
unfair to discriminate between relationships that attract legal obligations of
support (marriage) and those that do not (cohabitation). In effect, the majority
found that it is fair to distinguish between married and unmarried couples,
even to the detriment of the latter.72 Although the Court went on to concede
that cohabiting couples should have some legal protection, it found that little
would be achieved by extending the ambit of the Maintenance of Surviving
Spouses Act, particularly as this was unlikely to assist women most in need,
namely poor women who ‘cannot marry despite the fact that they wish to and
who become the victims of cohabitation relationships’.73 This was due to the
fact that their problem is not the law, but poverty.
The dissenting judgment of O’Regan and Mokgoro JJ was ‘unable to agree’
with the finding on discrimination, arguing that it not only ‘defeats the impor-
tant constitutional purpose played by the prohibition on discrimination on
the grounds of marital status’, but also ensures that ‘marriage will inevitably
remain privileged’.74 This judgment is more faithful to the legal prescripts of
substantive equality, speaking to the purpose of the right and basing its conclu-
sions on a comprehensive contextual analysis of marriage and co-habitation,
and women’s place within these relationships.75 In contrast to the majority, the
minority applies the Court’s equality jurisprudence76 to find that the exclusion
of co-habiting couples from the Act is unjustified, unfair discrimination. In an
even stronger dissent, Sachs J criticizes the majority failure to appreciate the
context of co-habitation and for seeing ‘patterns of gender equality, reinforced
by the law … as part of an unfortunate yet legally neutral background’.77 This
dissociation of law and social relations is a recurring theme in the Court’s
conservative and formalist judgments.78
A consideration of context is not completely absent in the majority judg-
ment. The Court shows some understanding of the systemic inequalities that
underpin women’s choices. It recognizes the ‘structural dependence of women
in marriage and in relationships of heterosexual unmarried couples’, as well
as women’s economic dependence on men, their lack of power within relation-

72 Ibid paras 56–60.

73 Ibid para 68.
74 Ibid para 118.
75 Ibid para 110.
76 Ibid para 123.
77 Ibid para 103.
78 Albertyn (note 4 above) 217, 221.
substantive equality and transformation in south africa 267

ships, and the negative consequences of this.79 However, as law is separated

from social life, so the contextual analysis is both textually80 and intellectually
delinked from the claim before the court, and shows little appreciation of the
complexities of cohabiting relationships and women’s position within them.
Women in co-habiting couples are divided into those who exercise free choice
(such as, it seems, the complainant, who must live with the consequences
of so ‘choosing’ not to marry, even in circumstances where law provides no
protection)81 and women who have no choice at all (and who require help, but
from Parliament not the courts).82
The misapplication of the contextual analysis is thus complicated by the
Court’s assumptions about marriage and choice. Marriage is a privileged
institution. Choice is an ‘all or nothing’ concept, where only women who
demonstrably have ‘no choice’ are worthy of legal protection. In all other cir-
cumstances, choice is apparently exercised by free, autonomous individuals
and trumps equality ends.83 This essentially libertarian view does not fit with
substantive equality which requires an understanding of choice that perceives
‘constraints as coming from history, from the operation of power and domina-
tion, from socialization, or from class, race and gender’.84 As a result, women’s
choices are not understood by the Court.85
A further result of this is that the judgment falls into stereotypical reason-
ing in which women are cast in the role of victims and supplicants, needing
protection rather than equality, and where women who are not seen as such
‘victims’ are ultimately ‘undeserving’ of constitutional protection. Although
a substantive equality approach certainly focuses on the disadvantage women
suffer, it also requires an affirmation of women’s agency and personhood
within their conditions of inequality.
In the end, the majority judgment does not apply the prescripts of substan-
tive equality: The judgment demonstrates no real examination of context or
impact, no affirmation of difference and no nuanced understanding of disad-
vantage. The resultant privileging of legally sanctioned marriage and abstract

79 Note 8 above, paras 63–4. Interestingly, the Court is prepared to judicial notice of these facts, at
the same time as it rejects the evidence of the amicus curiae on these very points. However, the fact
that the Court finds this evidence not to be relevant to the case is, of course, another indicator of
its distinction between women who have choice, represented by the complainant, and other women
who do not (paras 31–35).
80 The discussion on ‘vulnerability and economic dependence’ is placed near the end of the judgment,
after the conclusion of the equality section (paras 63–66).
81 Note 8 above, para 58. This is even more strongly articulated by Ncgobo J (paras 92–94) in his
minority, but concurring, judgment. See also his comments on women being free to withdraw from
these relationships at will (paras 53, 63, 64).
82 Ibid paras 59, 63–68.
83 A Phillips ‘Multiculturalism, Universalism and the Claims of Democracy’ in M Molyneux & S
Razavi Gender Justice, Development and Rights (2002) 115, 126.
84 L Finlay ‘Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal
Reasoning’ (1989) 64 Notre Dame Law Review 886, 896.
85 See also the dissent of Sachs J, paras 154–159, about the nature of women’s choices. For a discus-
sion of choice in this judgment see E Bonthuys ‘Institutional Openness and Resistance to Feminist
Arguments: The Example of the South African Constitutional Court’ (2007) 19 Canadian Journal
of Women and the Law (forthcoming).
268 (2007) 23 SAJHR

choice results in a negatively gendered and socially conservative judgment.86

Placed within equality jurisprudence as a whole, Volks NO v Robinson is doc-
trinally contradictory, a case in which substantive equality ends are limited
by the application of conventional, libertarian/liberal concepts, such as choice
and marriage. By contrast, the two minority judgments affirm a transforma-
tory idea of society in their recognition of a range of relationships and the
complexities and inequalities of choice.

d)  Women’s (choices and sex) work

Sex work or prostitution was outlawed in South Africa by an amendment to
the Sexual Offences Act in 1988. Section 20(1)(aA) of the Act criminalises the
sex worker, but not her client, for engaging in sexual intercourse ‘for reward’.
Prior to that, the act of prostitution was not criminalised, but the activities sur-
rounding it were.87 In Jordan v The State,88 the Constitutional Court was asked
to declare s 20(1)(aA) and certain other provisions to be unconstitutional, inter
alia, because they constituted unfair sex and gender discrimination. This was
an appeal from the High Court, which had agreed that the criminalization of
sex work was unfair discrimination.89
Sex work has been divisive amongst feminists, representing for many the
sexual exploitation of women in an unequal society, and for others the pos-
sibilities of sexual freedom in an equal society. Radical feminism condemns
sex work as ‘enforced sexual abuse under a system of male supremacy that
itself is built along a continuum of coercion — fear, force, racism and pov-
erty’.90 For liberal feminists, sex work is a choice that women make, a form
of ‘work’ that should be supported and protected by law, including decrimi-
nalisation and labour law protection.91 Critical feminism questions the liberal
notion of choice, emphasising rather the unequal socio-economic relations
that shape the demand for sex work and that present different women with
different choices:
In some cases these relations present people with a stark ‘choice’ between abject poverty or
prostitution, or between violence, even death or prostitution. In other cases the ‘alternatives’
may stretch to include monotonous, low paid employment, as well as prostitution.92

Sex work is thus diverse, characterized by complex power relations ‘which

produce a series of variable and interlocking constraints upon action’.93

86 This judgment also places the Court to the right of policy development in other parts of the state.
See the developments described by O’Regan and Mokgoro JJ (note 8 above) paras 114–119.
87 Such as pimping or brothel-keeping. See Jordan (note 9 above) para 44.
88 Note 9 above.
89 The State v Jordan 2002 (1) SA 797 (T).
90 N Bingham ‘Nevada Sex Trade: A Gamble for the Workers’ 1998 Yale J of L & Feminism 77, 82.
See also C MacKinnon Feminism Unmodified: Discourses on Life and Law (1987).
91 These ideas are discussed by the SA Law Reform Commission Adult Prostitution paras 4.14–4.20.
92 J O’Connell Davidson Prostitution, Power and Freedom (1998) 3.
93 Ibid 18.
substantive equality and transformation in south africa 269

A transformatory approach to sex work in South Africa, itself complicated

by race and class,94 should, at minimum, recognise the inequalities of society
that underpin sex work, and which structure the demand for sex work and the
choices that women make. It should go further to articulate an understanding
of equality in which sex is not tied to exploitation and inequality, and seek to
craft a remedy that both protects women and expands the choices available to
them, including sex work.
For the first time, the Constitutional Court split 6:5 on an issue. The minority
judgment of O’Regan and Sachs JJ has some of the elements of the above. The
justices agree that the criminalisation of sex workers, who are overwhelm-
ingly women, is unfair sex discrimination. This conclusion is based on an
understanding that this directly reinforces a pattern of sexual stereotyping
which the Constitution seeks to eradicate.95 It is the fact that the stigma of
criminalization rests only on the sex worker that is the problem. It reproduces
deeply entrenched patterns of sexual stereotyping and ‘archetypal presuppo-
sitions about male and female [sexuality and] behaviour in which the female
sex worker is ‘tainted’, the ‘social outcast’, and ‘morally reprehensible’, while
the male client is ‘accepted or ignored’, seen to be merely engaging in the ‘sort
of things that men do’.96
This judgment demonstrates some understanding of the concrete condi-
tions of women’s lives, in which social and economic inequality shape their
decisions to engage in sex work,97 as well as the systemic inequalities that
influence the fact of sex work. However, in limiting its concern to the question
of differential criminalization,98 the judgment implies that the criminalization
of both sex worker and client would not be constitutionally impermissible.
Ultimately, even the minority finds it difficult to imagine sex work as any-
thing other than potentially criminal, despite its recognition of the manner in
which sex work reproduces existing inequalities.99
The majority court’s dismissal of the claim has been widely written about for
its failure to apply the court’s substantive equality jurisprudence, its mechani-
cal, abstract reasoning and its narrow view of dignity.100 The Court’s superficial
approach, with no contextual understanding of the substantive issues of sex
work and the unequal gender relations in society that shape this occupation, is
a low point in the Court’s equality jurisprudence. Its importance, perhaps, is

94 I Pauw & L Brener ‘Naming the Dangers of Working on the Street’ (1997) 36 Agenda 80; J Wojcicki
‘Race, Class and Sex: The Politics of the Decriminalisation of Sex Work’ (1999) 42 Agenda 97.
95 Note 9 above, para 60.
96 Ibid paras 64–65.
97 Ibid paras 66 & 68.
98 Ibid para 71.
99 On this point in relation to the Court’s treatment of dignity see J Barrett ‘Dignatio and the Human
Body’ (2005) 21 SAJHR 525, 539: ‘A society is currently unimaginable that is sufficiently egalitar-
ian and lacking in social judgment to refrain from conferring low social status on a sex worker’.’
100 Albertyn (note 4 above); Bonthuys (note 85 above); S Jagwanth ‘Expanding equality’ in C Murray
& M O’Sullivan (eds) Advancing Women’s Rights (2005) 131; S Jagwanth & C Murray ‘No Nation
Can Be Free When One Half of It is Enslaved: Constitutional Equality for Women in South Africa’
in B Baines & R Rubio-Marin The Gender of Constitutional Jurisprudence (2005); R Krüger ‘Sex
Work from a Feminist Perspective: A Visit to the Jordan Case’ (2004) 20 SAJHR 145.
270 (2007) 23 SAJHR

in the manner it confirms the nature of the boundaries of constitutional equal-

ity protection. There are important similarities in the judgments of Robinson
and Jordan. In both, the Court perceives women as having exercised a choice
(albeit acknowledged to be ‘constrained’ in Jordan101) that ultimately takes
them outside of the realm of constitutional protection. In both, the concept of
‘choice’ is based on the idea of autonomous individuals exercising free choice;
not one that actually understands the constraints of history or power relations
of gender, race and class. As Bonthuys argues:
If the court recognized women’s real choices, then cohabitation and sex work may appear to
be rational, although not optimal decisions, and be met with sympathy rather moral and legal
condemnation.102

Unsurprisingly, in both, context is absent (Jordan) or abstract (Robinson).

Importantly, both are accompanied by minority dissenting judgments, where
the application of all or some of the legal prescripts of substantive equality
lead to the opposite conclusions.

V  Sexual Orientation and Transformation

During the 1990s, the gay and lesbian lobby succeeded in obtaining the inclu-
sion of sexual orientation as a prohibited ground of unfair discrimination in
both the interim and final constitutions. This constitutional protection gener-
ated a remarkable series of equality cases brought by the organized gay and
lesbian movement to secure the recognition of their lives and relationships.103
Since the first case in 1998, overturning the criminalization of sodomy,104 the
courts have extended a range of rights to gay and lesbian couples under s 9(3)
of the Constitution, most recently, the right to marry.105
Sexual orientation cases have been influential in the formation of South
Africa’s equality jurisprudence and are an important indicator of the bounda-
ries and potential of that jurisprudence as a whole. In considering whether
these cases have been ‘transformatory’, one would, inter alia, analyse the
extent to which sexual orientation cases show a nuanced understanding of the
context and conditions of inequality that shape the lives of gay and lesbian
people, including race and class factors. One would also expect a deep under-
standing of difference that affirms gay and lesbian choices and relationships in
a manner that is not constrained by hitherto deeply entrenched and dominant
heterosexual norms, and that opens up the possibilities of diverse families and
lifestyles in a truly egalitarian society.

101 Note 9 above, para 17.

102 Note 76 above, 24 (in manuscript).
103 S Croucher ‘South Africa’s Democratisation and the Politics of Gay Liberation’ (2002) 28 JSAS 315;
R Louw ‘A Decade of Gay and Lesbian Equality Litigation’ in M du Plessis & S Pete Constitutional
Democracy in South Africa 1994–2004 (2004) 65.
104 National Coalition for Gay and Lesbian Equality v Minister of Justice (note 6 above).
105 Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs
(2006) 1 SA 524 (CC).
substantive equality and transformation in south africa 271

A necessarily brief review of the cases presents a mixed picture. On the one
hand, the cases do include important passages about the right to be different.
At the same time, there is a strong normative thread of ‘sameness’ or formal
equality that suggests that gay and lesbian people are ‘just like us’, and are
thus deserving of equal rights.106 The strongest expression of difference is
found in the sodomy case, National Coalition for Gay and Lesbian Equality v
Minister of Justice,107 in which the Court stated that ‘[t]he desire for equality is
not a hope for the elimination of all differences’ and spoke about how society
is ‘demeaned’ by its failure to understand that all groups are equally deserv-
ing or worthy of equal protection by the law. 108 Citing the Canadian Supreme
Court, Ackerman J writes
It is easy to say that everyone who is just like ‘us’ is entitled to equality. Everyone finds it
more difficult to say that those who are ‘different’ from us in some way should have the same
equality right we enjoy’.109

In that case, the Court’s relatively brief contextual discussion, while not
explicitly about the experience of the South African gay community, focused
on the harms to dignity caused by social and legal exclusion.
Most of the cases that followed concerned claims for rights within gay and
lesbian relationships or rights of social recognition.110 Starting with National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs,111 there is
a slippage in the jurisprudence as it reverts to a more formal equality approach
and the right to sameness. Several authors have argued that the extension
of rights to these relationships has been subject to the heterosexual norm of
marriage, and same-sex couples have been granted recognition and rights to
the extent that they conform to an idea of marriage, but are legally prevented
from so marrying.112 This has meant that same-sex couples have secured
extensive rights that are largely denied to unmarried, heterosexual couples
or co-habitees.

106 These seemingly contradictory themes also reflect different legal and political strategies for rights.
The ‘just like us’ strategy was a conscious political choice and has been politically very important
is securing rights akin to marriage. See P de Vos ‘The “inevitability” of same-sex marriage in South
Africa’s post apartheid state’ (2007) 23 SAJHR (forthcoming).
107 Note 6 above.
108 Ibid para 22.
109 Ibid.
110 Satchwell v President of the Republic of South Africa 2003 (4) SA 266 (CC) (unfair exclusion of
same sex couples from the provisions of the Judges Remuneration and Conditions of Employment
Act 88 of 1989); Du Toit v Minister for Welfare and Population Development 2003 (2) SA 198 (CC)
(finding provisions of the Child Care Act 74 of 1983 unconstitutional for limiting joint adoption to
married people to the exclusion of same sex couples); J v Director-General, Department of Home
Affairs 2003 (5) SA 621 (CC) (unfair exclusion of include same-sex partners as parents of children
conceived by way of artificial insemination under the Children’s Status Act 82 of 1987).
111 2000 (2) SA 1 (CC) concerning the issue of immigration permits under s 25(5) of the Aliens Control
Act 96 of 1991 to the permanent life partners of same-sex couples.
112 See the discussion in Home Affairs ibid paras 42–53. See also P de Vos ‘Same-sex Sexual Desire
and the Re-imagining of the South African Family’ (2004) 20 SAJHR 179; Louw (note 103 above);
Albertyn (note 4 above).
272 (2007) 23 SAJHR

Despite the contradictory results of sexual orientation cases and Volks NO

v Robinson,113 the underlying jurisprudence shows remarkable consistency.
In both instances, there is a direct or indirect valorization of marriage and a
similar notion of choice, namely that the law should enforce the agreements
of ‘free, autonomous individuals … [and] eliminate the obvious constraints
on individual choice and opportunity that emanate primarily from the state
or from bad motivations of other individuals’.114 In Robinson, the Court was
concerned about the choice ‘not to marry’ of the claimant and (particularly)
her partner, while in the sexual orientation cases the Court is concerned
with overcoming legal prohibitions on the choice to marry. It grants rights to
same-sex couples to eliminate the consequences of the state’s legal prohibi-
tion to those relationships that are otherwise ‘the same as’ marriage. In both
instances, the result is a society in which social inclusion is based on same-
ness, rather than difference, and which limits choice unless exercised within
the (re)stated boundaries of acceptable relationships.
In Minister of Home Affairs v Fourie, the Court recognized the right of
same sex couples to marry. Although a hugely important case, it is primarily
a case about allowing gays and lesbians into the protected social institution
of marriage without challenging its position and the wider idea of family
in our law.115 This case also affirms the centrality of the notion of dignity
to equality jurisprudence: the right to be treated with equal dignity and to
equal concern and respect, or equal moral worth. This use of dignity across
the sexual orientation judgments is one that has generated important, but
fairly abstract, discussions of context — an exploration of the stigma and
harm caused by the non-recognition of gay and lesbian intimate relationships,
rather than an exploration of systemic inequalities that give rise to this, and
their differential impact on different groups.116 The use of dignity and ‘equal
concern and respect’ is consistent with the overall idea of sameness and social
inclusion, and thus is not transformatory of norms and institutions. While the
cases extend the net of recognition and rights, they do not immediately shift
the dominant norms and institutions, and do not fully embrace a future based
on difference.
These cases thus demonstrate the powerful tug of formal equality and social
inclusion of selected groups into the existing institutions and norms. As a
result, although successful in extending rights, they tend to be more inclusive
than transformatory.117 In many instances, this was the nature of the claim to
which the courts responded. Strategically, the idea that those who are per-

113 Note 8 above.

114 Heads of argument of the amicus curiae (Centre for Applied Legal Studies) in Volks NO v Robinson
ibid.
115 B Goldblatt ‘Case Note: Same-sex Marriage in South Africa — the Constitutional Court’s
Judgement’ (2006) 14 Feminist Legal Studies 261.
116 See eg National Coalition for Gay and Lesbian Equality v Minister of Justice (note 6 above) paras
20–27; National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (note 100
above) para 54.
117 C Albertyn (note 4 above) 233.
substantive equality and transformation in south africa 273

ceived as ‘different’ are in fact ‘just like us’ is a powerful one and perhaps far
more likely to succeed. Equality is classically about the inclusion of outsider
groups into the status quo through the extension of legal rights, protections,
benefits etc. This is why Khosa v Minister of Social Development,118 widely
hailed as a milestone in equality protection for providing relief to destitute
permanent residents, is in fact an easy equality case: It merely brought a clas-
sic outsider group into an existing system of benefits. What makes such cases
transformatory, however, would be an articulation of the nature of the group’s
exclusion and inequality within an overall understanding of the systemic
inequalities of our society, and a positive expression of a more egalitarian
society that dislodges the current hierarchies, dominant norms and institu-
tions. In the sexual orientation cases, it would entail a way of thinking about
relationships and family law that was not governed by heterosexual marriage
norms nor by libertarian ideas of choice, but by consistently transformative
ideas of diversity, human agency, context and choice.

VI Concluding R emarks — Transformation And Substantive

Equality
This article suggests that substantive equality is an important mechanism of
legal and social change, but that it has seldom been applied in a manner that is
fully ‘transformatory’. While courts can be powerful institutions for achieving
social inclusion, this had tended to occur within clearly defined institutional,
doctrinal and normative boundaries that limit the possibilities of fundamental
shifts in power relations in society. In this final section, I briefly summarise
and discuss the manner in which the prescripts of substantive equality have
been applied, and assess the difference that substantive equality makes and
the extent to which it generates transformation.

a)  Context, difference and values

The Constitutional Court’s emphasis on context and impact enables a trans-
formatory approach by constituting a legal requirement for investigating the
social and economic position of a claimant and his or her group. Elsewhere,119
I have suggested that the Constitutional Court’s approach to context and
impact is one that fluently describes our history and the broad fault-lines of
our society. Some of the Court’s most detailed contextual analyses concern
the egregious impact of apartheid and racism in our society.120 In addition,
discussions on the gendered division of labour, the exclusion and denigration
of gay and lesbian people, the vulnerability of non-citizens and the impact of
poverty121 show that the Court has begun to address the context of inequal-

118 Note 14 above.

119 Albertyn (2007) (note 4 above) 101–105.
120 See eg City Council of Pretoria v Walker l998 (2) SA 363 (CC); Moseneke v Master of the High
Court 2001 (2) SA 18 (CC).
121 Khosa v Minister of Social Development (note 14 above).
274 (2007) 23 SAJHR

ity in our society in a manner that has contributed to progressive results, for
example, in the sexual orientation cases.
However, the above review of gender and sexual orientation equality cases
suggests that the Court’s depiction of the context from which it will assess the
equality problem is limited by its reference to conventional ideas of choice,
marriage, sexuality and gender roles. This has led to cases where a contextual
analysis has been ignored, partially applied or applied in an abstract or socially
conservative manner. Given that much of the contextual analysis is derived
from judicial notice and selected references to evidence and research,122 the
extent to which context is addressed is largely dependant upon the judges
themselves and their approach to adjudication. The opposing majority and
minority judgments in Jordan and Volks suggest that the approach to con-
text, if not a conscious choice, is strongly influenced by judicial attitudes.123
However, it is also influenced by the nature of legal arguments and strategies,
as well as the issue before the court.
A substantive approach to equality recognises that equality does not entail
the elimination of difference. This has been accepted by the Constitutional
Court and has been referred to particularly in relation to the cases on sexual
orientation. However, the recognition of difference as part of equality, while
crucial to a substantive understanding of equality, is not necessarily evidence
of transformative ends. For this to occur, the courts would need to embrace an
idea of difference that was open to dismantling dominant norms and institu-
tions. To achieve this, courts need to avoid the use of dominant norms as
comparators for assessing equality needs. This has proved to be particularly
difficult to imagine. For example, the Constitutional Court has continued to
use marriage as a dominant, and privileged norm within an understanding of
difference in gender and sexual orientation cases. Unlike Robinson, the sexual
orientation cases represent a significant shift away from a formal approach that
valorises marriage as the only institution that can confer particular benefits.
Nevertheless, they still promote a dominant heterosexual marriage norm.
In addition, some of the cases on gender equality show the difficulties of
developing an idea of difference that is not tied to disadvantage. In both Hugo
and Masiya, the Court has tended towards a protective attitude concerning
women’s disadvantage (the burdens of motherhood and gender based vio-
lence) which, although defensible, demonstrates the difficulties of articulating
a more egalitarian world based on an affirmation of gender difference, and
thus reinforces stereotypical ideas of women as mothers or victims.
One of the most important indicators of a transformative approach is the
extent to which equality judgments contribute to the dismantling of systemic
inequalities and the establishment of new norms and conditions. Clearly,

122 For a revealing discussion on this, see the Court’s rejection of the research by the amicus curiae in
Volks NO v Robinson (note 8 above) paras 31–35. But see the Court’s apparent use of this evidence
in paras 63–68.
123 This raises important questions about the transformation of the judiciary. For a discussion on this
see Bonthuys (note 85 above).
substantive equality and transformation in south africa 275

this is part of a much larger and longer transformation of society, but one
would expect equality cases to begin to articulate a more egalitarian world,
especially through giving meaning to the values and purpose of the right. I
have argued elsewhere that the Court’s interpretation of dignity has limited
the transformative potential of the right.124 In the cases under review in this
article, there is little evidence of the development of equality ideals in any-
thing other than fairly abstract terms, such as ‘equal concern and respect’.
Again, this perhaps demonstrates difficulties with balancing a comprehension
of disadvantage and a positive expression of the constitutional vision.
Giving more concrete and transformative content to constitutional values
remains a significant challenge in equality cases. Certainly, one might look
for a different idea of agency and choice to that expressed in the cases under
review, a dismantling of patriarchal and heterosexual norms, the breaking
down of the public/private divide, as well as ideas of equal participation
within society.

b)  Substantive equality: inclusion or transformation?

Does substantive equality make a difference? The answer is undoubtedly in
the affirmative,125 evidenced most powerfully by the opposing results of the
majority and minority judgments in the cases of Jordan and Robinson. The
ability of the Court to extend significant rights to gay and lesbian couples is also
witness to the positive features of substantive equality. It is a far more difficult
to asses the inclusionary or transformatory nature of substantive equality. As
argued above, overall with few exceptions,126 the cases are examples of an
inclusionary rather than a transformatory approach. The jurisprudence, and
its application, has not yet reached a point where it can be said to be trans-
formatory and it is probable that a truly transformatory jurisprudence will
prove to be elusive.
Yet, much is to be said for the power of inclusionary judgments. Cases
such as Jordan and Robinson are regressive in that they embed us in a vision
of society in which the real concerns of vulnerable groups are not deemed
worthy of constitutional protection. By contrast, groups defined by their
sexual orientation, their gender or their permanent residence status have been
granted a significant array of rights and benefits by the courts. The mere act of
bringing groups into the constitutional community is indubitably significant
— bringing practical relief and social affirmation. It also changes the nature
of the debate as new voices are heard and might in fact ‘assist in setting demo-
cratic norms that may eventually shift the social norms’.127 However, as long

124 See most recently in Albertyn & Goldblatt (note 33 above) 8–14.
125 See also on this Jagwanth & Murray (note 100 above).
126 An exception is Sachs J’s minority judgement in Volks NO v Robinson (note 8 above).
127 Albertyn (2005) (note 4 above).
276 (2007) 23 SAJHR

as the terms of inclusion are not radically changed,128 social hierarchies will
not be dismantled and important groups will remain excluded — in this case
sex-workers and co-habitees, as well as gay and lesbian families that do not
conform to heterosexual norms.

c)  Continuing change

South Africa’s substantive equality jurisprudence has made significant steps,
and some regressive moves. Change, and particularly transformatory change,
is incremental. The law is an imperfect mechanism for social and economic
change. Yet, it is also clear that South Africa’s equality jurisprudence has not
reached its full potential, and a greater consistency of theory and application
could strengthen equality as a transformative right.
A particular feature of the cases discussed above is the inconsistency of
the jurisprudence — not only in application, but also in applying theory to
concepts. The theory of substantive equality presupposes a particular under-
standing of the world, of inequality that is group-based and systemic, in which
people’s individual choices/agency are constrained by wider power relations
in society. It also points to an idea of change that dismantles unequal power
relations. Any hope of (partly) achieving this through law must be based on
the development of a jurisprudence that thoroughly reflects this philosophical
approach. To the extent that this is not achieved in South Africa — as our
courts still struggle with legal formalism and the social consequences of a
more radical approach — our equality jurisprudence remains contradictory
and limited.
In this respect, this article suggests broad areas that could nudge equality
jurisprudence in more transformative directions. Firstly, it would be particu-
larly important to engage jurisprudentially the Court’s interpretation of key
concepts such as choice, difference, gender roles and family to promote more
transformative meanings. Secondly, it remains important to generate more
extensive debates on the interpretation and meaning of values, with a par-
ticular emphasis on how they define a future society in which existing power
relations and hierarchies are dismantled.

128 The Court might argue that it is not their task to change the terms of the debate — as indeed the
majority did in both Jordan and Robinson. This is incorrect — the courts remain the guardians of
the Constitution and are critical participants and arbiters in giving it meaning. Indeed, such is the
interpretive power of the Court that it gives the Constitution meaning even as it refrains from doing
so.