“We need, therefore, to develop a concept of unfair discrimination which recognises that although a society which affords each human being equal treatment on the basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting upon identical treatment in all circumstances before that goal is achieved. Each case, therefore, will require a careful and thorough understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall impact is one which furthers the constitutional goal of equality or not. A classification which is unfair in one context may not necessarily be unfair in a different context.”[1]
It is in this latter way that we have encapsulated the notion of substantive as opposed to formal equality.
[62]Section 9 of the 1996 Constitution, like its predecessor, clearly contemplates both substantive and remedial equality. Substantive equality is envisaged when section 9(2) unequivocally asserts that equality includes “the full and equal enjoyment of all rights and freedoms.” The State is further obliged “to promote the achievement of such equality” by “legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination,” which envisages remedial equality. This is not to suggest that principles underlying remedial equality do not operate
- ↑ Above n 17 at para 41. In a footnote to the above passage the following is stated:
“It is the logical corollary of the principle that ‘like should be treated like’, that treating unlike alike may be as unequal as treating like unlike. See the discussion in Kentridge ‘Equality’ in Chaskalson et al Constitutional Law of South Africa (Juta & Co Ltd, Kenwyn 1996) at para 14.2.”
