[59]There is no substance in this last submission. Whatever the proper construction of section 9 as a whole may be, the addition of the words “and benefit” in section 9(1) has not resulted in any change of substance in its objectives. Section 9(1) makes clear what was already manifestly implicit in section 8(1) of the interim Constitution, namely, that both in conferring benefits on persons and by imposing restraints on state and other action, the state had to do so in a way which results in the equal treatment of all persons. It was indeed so decided in Hugo’s case, where a benefit granted to the mothers of children below the age of twelve years, but not to the fathers of such children, was held to constitute discrimination for purposes of section 8(2) of the interim Constitution and presumed to be unfair, because the discrimination was based on a combination of grounds listed in section 8(2).[1]
[60]Before dealing with Mr Davis’s remaining submissions, it is necessary to comment on the nature of substantive equality, a contested expression which is not found in either of our Constitutions. Particularly in a country such as South Africa, persons belonging to certain categories have suffered considerable unfair discrimination in the past. It is insufficient for the Constitution merely to ensure, through its Bill of Rights, that statutory provisions which have caused such unfair discrimination in the past are eliminated. Past unfair discrimination frequently has ongoing negative consequences, the continuation of
- ↑ Above n 17 at paras 32 and 108.
