The Right to Equality in the South African Constitution

By O'Regan, Kate | Columbia Journal of Gender and Law, Summer 2013 | Go to article overview

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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Right to Equality in the South African Constitution
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.