Towards a transformative approach to affirmative action in South Africa

The South African courts’ affirmative action jurisprudence lacks coherence and clarity on important issues that shape what is possible through affirmative action. In light of the importance of affirmative action to eradicating inequality and the courts’ powerful role, my thesis explores how the commitment to transformative constitutionalism and substantive equality should guide the courts’ affirmative action jurisprudence. Part I explores the contested meaning(s) of transformative constitutionalism and substantive equality. I argue that these should guide the development of a transformative approach to affirmative action. The core of this approach is a focus on eradicating group-based disadvantage. Part II draws from Part I’s foundation and suggests how the courts should grapple with several contested issues in its affirmative action jurisprudence. The first is the role that the courts should play in the judicial review of affirmative action. I argue for a value-driven proportionality assessment which is tilted in favour of preserving affirmative action measures. The second is whether there is a duty to take affirmative action. I argue that there is a duty to take positive steps to fulfil the right to equality, in some cases, through affirmative action. The third issue is whether the courts can order affirmative action as a remedy. I argue that affirmative action is available as one of the appropriate, just and equitable remedies available to courts. Still drawing on the foundation in Part I, Part III explores and provides guidance on four important issues which arise in the design and implementation of affirmative action: the purposes that these measures should pursue (for what?); the criteria for the demarcation of the beneficiary groups (for whom?); focussing on quotas, the range of permissible forms that affirmative action could legitimately take (through what means?); and whether there is an end-date for affirmative action (for how long?).