The Right to Equality in the South African Constitution
O'Regan, Kate, Columbia Journal of Gender and Law
When the young Frenchman, Alexis de Tocqueville, visited the United States of America in the early 1830s, he was fascinated by the idea of democracy and the role of law and lawyers within it. He went to America dismayed by the weak state of democracy in Europe and in France, in particular, in order to observe how democracy was faring in the United States of America. One of his observations was that lawyers had an important role to play in the development of a democracy. "I should like to get this matter clear," he wrote, "for it may be the lawyers are called on to play the leading part in the political society which is striving to be born." (1)
If one considers De Tocqueville's remarks in relation to the question of gender equality, there can be little doubt that Justice Ruth Bader Ginsburg has been a lawyer who, in the different roles she has played as a lawyer, a professor, and a judge, has played the leading part in the legal struggle for gender equality and it is a great honour to have been invited to participate in this symposium today in her honour.
South Africa, like so many countries around the world, has watched and learnt from the US dialogue about law and gender equality over the last forty years. The richness of that dialogue, just like the richness of Justice Ginsburg's contribution, has not been limited to jurisprudence emanating from the courts, but has included legislation both at the federal and state levels in different areas of the law (even if it does not, sadly, include the Equal Rights Amendment), including employment and labour law, as well as family law, discrimination law and social welfare law. It has also included the extraordinary output of the American academy, of which Columbia Law School is an eminent representative. That output, in turn, analytical, empirical, challenging and with a deep international perspective, is a rich global resource which lawyers and social activists everywhere may mine. It has without doubt enriched constitution-making, legislation, jurisprudence and social activism the world over. And South Africa is no exception.
South Africa's constitutional text on the question of equality is different from the United States' text. This is not surprising. It was drafted only fifteen years ago. I am glad that it is different because it reflects South Africa's challenges in seeking to remake our society. It is thus a transformative Constitution. This transformative purpose is expressed in the Preamble to our Constitution as follows: the Constitution is adopted so as to "heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights" in which the quality of life of all citizens will be improved, and the potential of each person will be freed. (2) The Constitution's charisma arises in part from the tantalising prospect it holds out: of a healed society in which all citizens will reach their full potential. But the achievement of this vision remains a distant promise still, nearly twenty years into our new democratic era. (3)
Equality is a central theme of our new Constitution. It permeates the constitutional text. Right at the start, in Section 1, the Constitution provides that the founding values of our Constitution are (amongst others): human dignity, the achievement of equality, the advancement of human rights and freedoms, as well as the principles of non-racism and non-sexism. (4)
The pervasiveness of equality is evident elsewhere as well: Section 39, a provision which guides the interpretation of the Bill of Rights stipulates that in interpreting the Bill of Rights, a court must promote the values that underlie an open and democratic society based on human dignity, equality and freedom. (5) Given the open-textured character of the Bill of Rights, these are important principles that guide the process of interpretation. Again, the structure of our Bill of Rights, like the Canadian Charter, provides for a two-stage model of rights adjudication. …