Abstract

The aspiration of the Constitution of the Republic of South Africa, 1996, towards “the achievement of equality” remains an imperative for a democratic South Africa as it struggles with deeply entrenched patterns of colonialism, Apartheid, patriarchal inequality, and structural exclusion. This article focuses on the Constitution’s embrace of substantive equality and, particularly, on the Constitutional Court as an important site of struggle and deliberation over the meaning of equality and the use of the section 9 right to address South Africa’s deep and ongoing inequalities. It begins by restating the aspiration to substantive equality in the 1990s and sets out how its instantiation as a constitutional value and right should be interpreted in law. It then discusses the reach and limits of the Constitutional Court’s inclusive substantive equality jurisprudence under section 9(3), before interrogating what a more transformative substantive equality entails and its particular manifestations in gender equality jurisprudence. It argues that this jurisprudence points to more transformative pathways for section 9. Turning to section 9(2), it briefly examines positive measures as a particular site of contestation between formal and substantive equality, with both local and global reach. The article then maps the overall achievements and rare failures of section 9 and documents the possibilities of more transformative jurisprudential pathways. In conclusion, it argues that while the possibilities of change are primarily found in politics, litigation, and constitutional interpretations matter, especially if law and rights are seen as sites of struggle where ideas, such as equality and freedom, can be appropriated and reconstructed in different contexts. If the Constitution can be read to envisage transformative change, then the interpretations of equality should enable that, and there are clear building blocks in legal substantive equality that allow us to do so.