Fairness in Transformation: A Critique of the Constitutional Court's Affirmative Action Jurisprudence

Abstract

The Constitutional Court has contextualised its interpretation of the affirmative action clause of the Constitution in a manner which dogmatically isolated it from the broader normative framework of the equality guarantee and the Constitution as a whole. In the context of equality challenges to affirmative action, the Court opted to extract the constitutional conditions for validity from s 9(2) exclusively, to the exclusion of the fairness and proportionality requirements of ss 9(3) and 36 respectively. This approach, if consistently followed, stands to limit basic constitutional values and could undermine the ability of the Constitution to meaningfully integrate competing interests, in the context of affirmative action disputes, in a comprehensive and fair manner. An element of ambivalence, however, characterises the Court’s jurisprudence in this respect, which might serve to open the way for the development of a more integrated, fairness-based approach.

Keywords: affirmative action, substantive equality, unfair discrimination, rationality, fairness, proportionality

JEL Classification: J7