The dilemma of achieving equality in post-apartheid South Africa : balancing affirmative action with equal Protection Under the Law

Abstract : South Africa is an unequal society, owing to the legacy of the apartheid system where the state undertook to disempower the majority of the population on the basis of race. This has resulted in systemic economic and social subjugation that would outlive apartheid’s formal institutional infrastructure. The depth of inequalities created under the apartheid system was a major hindrance towards building an inclusive society based on freedom, fairness and justice. It is because of persistence of inequalities in the post-apartheid dispensation that the Constitution (Act 108 of 1996) undertakes that to “promote the achievement of equality, legislation and other measures designed to protect or advance persons…disadvantaged by unfair discrimination may be taken”. The Constitution provides for affirmative action as a means through which substantive promotion of equality is possible. The Constitution also prohibits unfair discrimination on the basis of race or gender, for example. This thesis explores how the courts evaluate competing claims for equality under constitutions namely, the right to benefit from affirmative action as a measure aimed at extending equality to those who suffered unfair discrimination on one hand, and the right to equal treatment by the state. These claims emerge whenever affirmative action programmes are brought to court following disputes that such measures constitute unfair discrimination on the basis of race, for example. Complaints are often brought to court by those who are excluded from benefiting from affirmative action. When such contests reach the courts for resolution, the courts are expected to assess which of the competing claims deserve constitutional protection, on the basis of the given facts. Since affirmative action is a policy aimed at achieving social justice, the courts’ ruling on the matter is an expression of an understanding of equality as provided for in the constitution. This thesis evaluates the approach followed by the courts in assessing the constitutional permissibility of affirmative action measures. By studying some of the key decisions made by the courts thus far, the thesis explores the question as to whether the courts employ fair, transparent and accessible criteria in deciding the constitutionality of affirmative action. In order to evaluate the emerging jurisprudence on affirmative action, the thesis carries out an in-depth review of some selected decided affirmative action cases. This 5 provides insights into the interpretative exercise followed by the courts, and its reflection on the meaning of equality and justice in a constitutional democracy. By drawing on political theory, the thesis is then able to conclude how the courts construe the meaning of equality.D.Litt. et Phil. (Political Studies