Equality, dignity, and the politics of interpretation : post-apartheid fragments : law, politics and critique
CITATION: Botha, H. 2004. Equality, dignity, and the politics of interpretation : post-apartheid fragments : law, politics and critique. SA Publiekreg = SA Public Law 19(1):724-751.
The original publication is available at https://journals.co.za/content/journal/sapr
The equality standard articulated by South Africa's Constitutional Court is premised on a substantive concept of equality, and purports to be sensitive to context and mindful of past patterns of discrimination, systemic inequality and the role of harmful social stereotypes. However, the emancipatory potential of the Court's general approach to equality is not always reflected in its judgments. In fact, the reasoning in some of these judgments strikes me as formalistic and uncritical of existing power relations. The disjuncture between the constitutional promise and the reality of the enforcement of the equality guarantee, is a recurring theme in legal scholarship. According to some authors, the dignity-based approach of the Constitutional Court lies at the heart of the problem. In their view, the notion of dignity is not only completely indeterminate and thus allows judges to give almost any content to it, but the focus on dignity (rather than disadvantage) also results in an overly individualistic emphasis, which tends to blind judges to systemic inequality and material disadvantage. Others have countered that the notion of human dignity is not as devoid of meaning as claimed by the critics, and that there is nothing inherently individualistic about it.