Equality or justice? Section 9 of the Constitution revisited — Part I

Abstract

The purpose of this article is to establish whether section 9 of the Constitution guarantees equality or justice. The Constitution stipulates that everyone is equal before the law and has the right to equal protection and benefit of the law. It defines equality as including the full and equal enjoyment of all the rights and freedoms. It also prohibits unfair discrimination against anyone on one or more of the listed grounds. This provision aims to create an egalitarian society where all people are treated as human beings with dignity and self-worth. It cannot, however, be interpreted to mean that there will be total equality of all persons in every respect whatever their circumstances and that all people will enjoy all rights fully in the same way. The Constitutional Court has interpreted this provision to mean justice and fairness rather than complete equality. It has been accepted that in a democratic society differentiation is permissible and even necessary. However, permissible differentiation becomes impermissible (and consequently results in unfair discrimination) when the dignity of the person is violated. Although this approach has been criticised as being narrow in that it shifts emphasis from equality to dignity, it demonstrates that there is a close relationship between equality and dignity.