But it is not only black people who have sufered and sometimes continue to sufer from

discrimination. Women, gay men and lesbians, people with disabilities, HIV-positive people,
foreigners, religious minorities and many individuals with distinctive attributes or
characteristics have also sufered marginalisation and exclusion and to some extent still do.
When considering the scope and content of the right to equality, it is important to have
regard to these realities.

SOUTH AFRICAN CONSTITUTIONAL LAW IN CONTEXT

focus on the underlying purpose of the right to equality – what harm it seeks to address – as
well as the values underlying equality. he harm to be addressed rests on at least three
pillars:
• the culturally constructed ideology of diferences based on the belief in the superiority
of dominant groups and the inferiority of non-dominant groups
• the economic exploitation and disempowerment of those without power because of their
race, sex, gender, sexual orientation or other attributes
• in the South African context, also the previous political disenfranchisement of black
South Africans.23
PAUSE FOR
REFLECTION
Distinguishing between formal equality and substantive equality
To distinguish between formal equality and substantive equality, it may be helpful to
focus on a speciic example. Where a guesthouse catering to gay and lesbian tourists
refuses to accommodate any heterosexual clients, that guesthouse would be treating
people differently based on their sexual orientation. A heterosexual couple who are
denied accommodation at the guesthouse may feel that they have been discriminated
against on the basis of their sexual orientation as they have been denied accommodation
purely because they are heterosexual. A court that adheres to a formal notion
of equality may have to ind in favour of the heterosexual couple on the basis that the
guesthouse treats gay men and lesbians differently from heterosexuals to the detriment
of the latter group. Formally, the guesthouse rule denies the heterosexual couple a
beneit that is not denied to gay men and lesbians.
A court that embraces a substantive notion of equality may look at the larger social
and economic context. The court may acknowledge that gay men and lesbians continue
to suffer from prejudice, stigmatisation and discrimination. They may therefore feel
vulnerable and exposed in situations where they are required to book into a guesthouse
along with heterosexual clients. In an ordinary guesthouse, gay and lesbian couples
may fear being subjected to the prejudices (presumed or real) of non-homosexual
clients. This may inhibit them from showing affection for one another and may detract
from their enjoyment of their stay.
The guesthouse in our example aims to provide a safe space for gay men and
lesbians where couples can openly express physical affection for one another and
interact in loving and intimate ways with each other as heterosexual couples do every
day in public. They can do so in a manner in which they may not be able to do when
they fear the judgment of heterosexuals staying at the establishment.
The court embracing substantive equality may ind that this different treatment is
not in breach of the equality guarantee. Heterosexual couples will have no problem in
inding alternative accommodation because there is no widespread discrimination
against them in society. The guesthouse rule will not send a signal that heterosexuals
are somehow less worthy of concern and respect than gay men and lesbians. The court
will take into account the broader context. This context includes the fact that heterosexuals
are not generally believed to be marginalised or suffering from patterns of
discrimination, disadvantage or harm. In addition, different treatment will not establish
23 Botha, H (2009) Equality, plurality and structural power South African Journal on Human Rights 25(1):1–37 at 7.
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CHAPTER 12 EQUALITY, HUMAN DIGNITY AND PRIVACY RIGHTS 425
new patterns of discrimination, disadvantage and harm by a powerful group over a
disempowered and vulnerable group. The court may therefore well dismiss a complaint
of discrimination brought by a heterosexual couple.24 For exactly the same reasons,
the court will ind a guesthouse that prohibits black people from staying at its establishment
guilty of discrimination as such an exclusion will perpetuate long-standing
patterns of discrimination and prejudice.
In the following sections we irst set out the basic assumptions underlying the substantive
approach to equality as well as the values implied by the right to equality. We then focus on
two distinct situations in which the right to equality arises:
• cases where individuals are treated diferently but where this diferent treatment does
not explicitly address the efects of past and ongoing prejudice and discrimination
• cases where the diferent treatment is explicitly justiied on the grounds that it addresses
the efects of past and ongoing prejudice and discrimination (so-called airmative action
measures or better referred to as redress measures).
We also discuss the Promotion of Equality and Prevention of Unfair Discrimination Act
(PEPUDA).25 he PEPUDA gives legislative efect to section 9 of the Constitution and is often
relied on instead of section 9 itself.
12.2.2 Differentiation and discrimination
he idea of diferentiation lies at the heart of South Africa’s equality jurisprudence. 26 Not all
forms of differentiation are constitutionally problematic: relatively benign forms of
diferentiation between people or groups of people permeate human relations in a modern
society and the Constitution does not usually prohibit the law from making such distinctions.
A modern state is required to regulate the afairs of its inhabitants extensively. It is impossible
to do so without diferentiation and without classiications that treat people diferently and
which afect people diferently.27
Moreover, private individuals or institutions diferentiate daily between individuals in
many ways. These numerous forms of differentiation are seldom problematic from a
constitutional law perspective and the vast majority of cases in which people or groups of
people are treated diferently from one another are legally benign.
However, some forms of diferentiation by the state or by private parties do infringe on
the right to equality guaranteed in section 9 of the Constitution. As we shall see, the Constitutional
Court draws a sharp distinction between mere diferentiation dealt with in terms of
section 9(1) of the Constitution and discrimination dealt with in terms of section 9(3) of the
Constitution.
he consequence of this distinction between mere diferentiation and discrimination is
that questions around discrimination dominate the Constitutional Court’s approach to
24 For a real-life example, see Kassiem, A (2006, 26 June) Guest houses can be for gay men only available at http://www.
iol.co.za/news/south-africa/guest-houses-can-be-for-gay-men-only-1.283071.
25 Act 4 of 2000.
26 Prinsloo para 23.
27 Prinsloo para 24.
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426 SOUTH AFRICAN CONSTITUTIONAL LAW IN CONTEXT
equality.28 It is clear that for a claimant to succeed with an equality challenge, it will usually
(but not in every case) be necessary to frame a claim about a breach of section 9 of the
Constitution as one of discrimination rather than in terms of a general claim to equality or a
claim of diferentiation. he Constitutional Court has chosen to focus its equality jurisprudence
on the notion of discrimination rather than on the more ‘complex’, ‘elusive’ and
‘empty’ 29 notion of equality or on all cases of diferentiation. his choice stems from a need
to provide a suitably ‘structured’ and ‘focused’ legal framework that will provide an efective
and easy-to-apply legal test to determine whether the equality guarantee has been breached. 30
he Constitutional Court views the concept of non-discrimination as providing the legal
mechanism that will deal effectively with egregious forms of inequality and different
treatment while avoiding the opening of the litigation loodgates. By focusing on targeted
forms of discrimination instead of on the more general equality guarantee dealing with all
forms of diferentiation, the Court aims to discourage well-resourced litigants in the private
sector from challenging every conceivable form of legal diferentiation. he Constitutional
Court therefore focuses on the importance of non-discrimination and sees it as a safe and
more or less predictable way of dealing with the diicult issues of equality with which it has
been, and no doubt will continue to be, confronted.31
12.2.3 Values underlying the right to equality: human dignity and equality
he judges of the Constitutional Court have unanimously embraced the idea that at its core,
the equality guarantee protects individuals’ human dignity. he centrality of the value of
human dignity for equality jurisprudence was irst established in President of the Republic
of South Africa and Another v Hugo where the Court placed human dignity at the heart of its
equality enquiry.32 he Court stated:
he prohibition on unfair discrimination in the interim Constitution seeks not only
to avoid discrimination against people who are members of disadvantaged groups. It
seeks more than that. At the heart of the prohibition of unfair discrimination lies a
recog nition that the purpose of our new constitutional and democratic order is the
establish ment of a society in which all human beings will be accorded equal dignity
and respect regardless of their membership of particular groups (our emphasis).33
28 Brink; Prinsloo; Hugo; Harksen; Larbi-Odam and Others v Member of the Eexecutive Council for Education (North-West
Province) and Another (CCT2/97) [1997] ZACC 16; 1997 (12) BCLR 1655; 1998 (1) SA 745 (26 November 1997; Walker;
National Coalition for Gay and Lesbian Equality v Minister of Justice; Hofmann; Moseneke and Others v Master of the
High Court (CCT51/00) [2000] ZACC 27; 2001 (2) BCLR 103; 2001 (2) SA 18 (6 December 2000); Satchwell v President of
Republic of South Africa and Another (CCT45/01) [2002] ZACC 18; 2002 (6) SA 1; 2002 (9) BCLR 986 (25 July 2002); J and
Another v Director General, Department of Home Afairs and Others (CCT46/02) [2003] ZACC 3; 2003 (5) BCLR 463; 2003
(5) SA 621 (CC) (28 March 2003); Du Toit and Another v Minister of Welfare and Population Development and Others
(CCT40/01) [2002] ZACC 20; 2002 (10) BCLR 1006; 2003 (2) SA 198 (CC) (10 September 2002); Bhe and Others v
Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October
2004); Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005 (5) BCLR 446 (CC) (21 February 2005); Minister
of Home Afairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA
524 (CC) (1 December 2005); Gory v Kolver NO and Others (CCT28/06) [2006] ZACC 20; 2007 (4) SA 97 (CC); 2007 (3)
BCLR 249 (CC) (23 November 2006). See also Pretorius, JL (2010) Fairness in transformation: A critique of the
Constitutional Court’s airmative action jurisprudence South African Journal on Human Rights 26(3):536–70.
29 See generally Fagan, A (1998) Dignity and unfair discrimination: A value misplaced and a right misunderstood South
African Journal on Human Rights 14(2):220–47 at 220; and Westen, P (1982) he empty idea of equality Harvard Law
Review 95(3):537–96 at 537.
30 National Coalition for Gay and Lesbian Equality v Minister of Justice para 122.
31 De Vos (2000) 64.
32 (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997).
33 Hugo para 41.
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CHAPTER 12 EQUALITY, HUMAN DIGNITY AND PRIVACY RIGHTS 427
he Court accepts that the equality guarantee protects individuals from diferentiation based
on one of the speciied grounds in section 9(3) or similar forms of diferentiation that have
the potential to infringe on a person’s fundamental human dignity. Conversely, where
diferentiation is not based on one of the speciied grounds and where it does not have the
potential to infringe on a person’s fundamental human dignity, there will be no unfair
discrimination in terms of section 9(3) of the Constitution.
he Constitutional Court has provided quite a broad and expansive deinition of human
dignity. It has stated that human dignity will be impaired whenever a legally relevant
diferentiation treats people as ‘second-class citizens’, ‘demeans them’, ‘treats them as less
capable for no good reason’, otherwise ofends ‘fundamental human dignity’ or where it
violates an individual’s self-esteem and personal integrity. 34 his idea of dignity is based on
the notion that all human beings have an equal moral worth – the right to be treated with
equal concern and respect – and derives from the work of Immanuel Kant.35
his view of equality as inextricably linked to the concept of dignity has been reiterated
in subsequent Constitutional Court judgments 36 and has further been elaborated on, most
notably in Prinsloo v Van der Linde and Another.37 However, in this case, the Court gave an
even more expansive interpretation of when treatment will be discriminatory. It added that
not only an infringement of human dignity, but also ‘other forms of diferentiation, which
in some other way afect persons adversely in a comparably serious manner’, could constitute
a harm prohibited by the non-discrimination provisions of the Constitution. 38 Where
legal provisions deny this equal moral worth, the Court will ind that there has been an
impairment of human dignity or that the complainant has been adversely afected in a
comparably serious manner. his is a conirmation of Malherbe’s proposition that ‘equality
without dignity is inhuman’.39
CRITICAL
THINKING
Does South African dignity-based equality jurisprudence narrow the understanding
of the right to equality?
Some academics have criticised the South African dignity-based equality jurisprudence
on the basis that it can narrow the understanding of the right to equality to an abstract
and individualised notion about the personal feelings of a litigant who feels hurt by
prejudice and misrecognition.40 The fear is that the reliance on the value of dignity
would focus equality jurisprudence on the individual harm caused by prejudice as well
as on the narrow need to address such harms. This narrow focus on the individual and
the harm suffered by him or her, so the argument goes, runs the risk of ignoring the
larger social and economic disadvantages as well as the systemic nature of inequality
in South African society.
For example, some people argue that a dignity-based approach to equality can
power fully address issues of discrimination against gay men, lesbians and other sexual
34 Hugo para 41. See also Albertyn and Goldblatt (1998) 257.
35 See Woolman, S ‘Dignity’ in Woolman and Bishop (2013) 36.3.
36 Hugo para 41; Prinsloo paras 31–3; Harksen para 50.
37 (CCT4/96) [1997] ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997).
38 Prinsloo para 33. See also Harksen para 50: ‘Whether or not there is discrimination will depend upon whether,
objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental
human dignity of persons as human beings or to afect them adversely in a comparably serious manner.’
39 Malherbe, R (2007) Some thoughts on unity, diversity and human dignity in the new South Africa Tydskrif vir die Suid
Afrikaanse Reg/Journal of South African Law 70(1):127–33 at 132.
40 Albertyn and Goldblatt (1998) 256–60.
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428 SOUTH AFRICAN CONSTITUTIONAL LAW IN CONTEXT
minorities. The reason for this is that such discrimination is rooted in moral disapproval
and results directly in an affront to their dignity and identity.41 By contrast, the fear is
that discrimination against women or black people can often not be captured fully in
terms of a dignity-based analysis. Such discrimination results from a complex mix of
supericially neutral laws, entrenched structural inequality and cultural stereotypes.42
South Africa has a sexist, racist and homophobic past. Prejudices based on race,
gender and sexual orientation continue to linger in our society. Discrimination faced by
many women, black people and to a lesser extent gay men and lesbians, thus also has
an economic component. This component cannot easily be captured with reference to
an infringement of a person’s dignity.
However, the Constitutional Court’s contextual approach to equality has allowed it to
move beyond a narrow, individualised notion of equality focused on individual personal
autonomy, psychology and self-worth. This contextual approach has permitted a systematic
understanding of individual, group-based, civil, political and material inequalities.
Dignity is thus linked to the achievement of a world in which the basic needs of all
people will be met.43 In Khosa and Others v Minister of Social Development and Others,
Mahlaule and Another v Minister of Social Development,44 the Constitutional Court
recognised that the dignity of individuals will not be respected if the material conditions
do not exist to allow for such a respect for dignity. It also suggested that dignity is a
group-based concept involving a collective concern for the well-being of others and that
the allocation of resources is important for considering equality concerns:
Sharing responsibility for the problems and consequences of poverty equally as
a community represents the extent to which wealthier members of the community
view the minimal well-being of the poor as connected with their personal wellbeing
and the well-being of the community as a whole. In other words, decisions
about the allocation of public beneits represent the extent to which poor people
are treated as equal members of society.45
Apart from the value of dignity, the Constitutional Court has also airmed that the value of
equality is relevant for any understanding of section 9 of the Constitution especially when
dealing with the restitutionary aspects of equality. In Van Heerden, the Constitutional Court
airmed the Constitution’s commitment to strive for a society based on social justice.
Equality thus requires more than equal protection before the law and non-discrimination,
‘but also the start of a credible and abiding process of reparation for past exclusion,
dispossession, and indignity within the discipline of our constitutional framework’. 46 As the
Court per Moseneke DCJ argued:
What is clear is that our Constitution and in particular section 9 thereof, read as a
whole, embraces for good reason a substantive conception of equality inclusive of