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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Substantive equality and transformation in South Africa
Author:Albertyn, CatherineISNI
Year:2007
Periodical:South African Journal on Human Rights
Volume:23
Issue:2
Pages:253-276
Language:English
Geographic term:South Africa
Subjects:social inequality
constitutional courts
jurisprudence
Abstract:This paper considers whether 'substantive equality', as a transformative idea and legal mechanism in the South African Constitution, can generate legal solutions and court decisions that may result in transformative change. It does so by establishing a framework for analysing the 'inclusionary' or 'transformatory' effects of equality cases in relation to gender and sexual orientation. It argues that the idea of substantive equality is capable of addressing diverse forms of social and economic inequality, and that the legal form of substantive equality adopted by the Constitutional Court, emphasizing context, impact, difference and values, has some potential for achieving meaningful social and economic change by and through courts. However, the manner in which the Court has engaged with this legal form suggests that the transformative possibilities of equality are constrained by a number of factors. These include institutional concerns, the capacity and willingness of judges to recognize and address the multiple systemic inequalities that still pervade society as well as their ability to develop a consistently transformative jurisprudence that applies the ideas of substantive equality to the concepts and doctrines that underpin many equality claims. Notes, ref., sum. [Journal abstract]
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