Reimagining power relations: hierarchies of disadvantage and affirmative action

The South African Constitution has embraced affirmative action as an aspect of substantive equality from its inception. There is therefore no need to enter into the arid debates in the US and UK as to how it might be reconciled with the equal treatment principle. Nevertheless, it remains a challenging concept. As Moseneke ACJ so pertinently pointed out in Barnard: ‘Our quest to achieve equality must occur within the discipline of our Constitution. … We must be careful that the steps taken to promote substantive equality do not unwittingly infringe the dignity of other individuals – especially those who were themselves previously disadvantaged.’ In this paper, I want to explore this last and particularly pressing issue, that of different and perhaps conflicting disadvantage. What do the principles set out by Moseneke DCJ in his judgments suggest as to how different and perhaps conflicting disadvantages can be reconciled, if at all, within the conception of affirmative action? In particular, I want to explore the role of class, and its interaction with identity categories or status. It is telling that in Barnard, Moseneke ACJ emphasised that: ‘At the point of transition, two decades ago, our society was divided and unequal along the adamant lines of race, gender and class.