AfriForum releases report on the legal interpretation of equality

15 June 2020

The civil rights organisation AfriForum today released a report regarding the legal status of equality in South Africa, as well as whether the country will ever objectively be considered “transformed”. The report is based on recent court cases regarding the courts’ application of the equality principle in the Constitution.

Many of the cases considered in the report indicate that the judiciary takes its duty very seriously to diligently and carefully weigh up the competing interests at stake when deciding on cases of transformation and equality. The report however also states that South Africa is still very far from the point where it appears that the judiciary will pause to reconsider the validity of the criteria it is impelled to apply in such cases. This is evident where the right to equality for certain minority groups is being infringed upon vigorously but is held to be justifiable by the courts’ interpretation of the limitations on the right to equality.

The report is divided into three parts. Part I outlines the South African legal framework that protects the right to equality and impels the pursuit of substantive equality. Part II unpacks incidents, judgments and reports relating to unfair discrimination. Finally, Part III discusses the prospect of whether we are moving closer to an egalitarian society.

“The notion of what equality really means has gained traction in the public discourse recently, seeing as the ANC government’s conception of it appears to drastically differ from how most people understand it. In recent years we have heard increasing talk of ‘positive discrimination’, which is a very slippery slope and a disturbing concept when you take it to its logical endgame. A perfect example of this was when Mmamoloko Kubayi-Ngubane, the Minister of Tourism, said that it was perfectly rational to allocate COVID-19 relief funds based on race,” says Ernst van Zyl, Campaign Officer at AfriForum.

“Present wrongs can never right the wrongs of the past, for the plain and simple reason that the present has a nasty and consistent habit of turning into the past. In that manner a new generation of disadvantaged people is created. Why dig a pothole to fill another? Therefore, it is crucial that equality be well defined and not be hijacked by ideologues,” Van Zyl concludes.

Issued by Carina Bester, Media Relation Officer, AfriForum, 15 June 2020