Abstract

This piece examines the potential impact of affirmative action measures under the Employment Equity Act, 1998 on non-beneficiaries (specifically non-beneficiaries from designated groups). The author examines the potential detrimental impact on the human dignity of such non-beneficiaries and suggests an alternative basis for legal challenges to such measures in appropriate cases. After critically considering the standard of review of affirmative action measures as employed by the Constitutional Court (the Van Heerden test), the author examines the role of dignity in equality cases. The author posits that the substantive right to dignity in s 10 of the Constitution of South Africa, 1996 provides an alternative and less burdensome basis for affected claimants to challenge the legality of restitutionary measures, which would subject such measures to ordinary constitutional scrutiny in terms of the s 36 limitations clause (as opposed to the low standard of rationality review in terms of the Van Heerden test).