Equality and Social Rights: An Exploration in Light of the South African Constitution

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Abstract

In both academic commentary and judicial decisions a connection is frequently drawn between substantive equality and social rights. This article explores this relationship in light of South African constitutional law. The first part of the article introduces the concepts of social rights and substantive equality. Thereafter, the focus turns to the social rights judgments of the South African Constitutional Court which, it is suggested, can be read in light of principles of substantive equality. However, this interpretation leaves many questions unanswered. Firstly, drawing a connection between social rights and substantive equality would seem to imply that 'poverty' or 'social condition' can be constructed as a ground of discrimination. Secondly, in making sense of substantive equality the Constitutional Court has referred extensively to dignity. What role can this value play in the adjudication of social rights? Thirdly, what is the relationship between substantive equality and positive action? Finally, if social rights are co-extensive with substantive equality what is their 'added value' in a Bill of Rights? The article argues that the key to understanding these questions is that social rights extend principles of substantive equality to the fields of poverty and welfare.
Original languageEnglish
Pages (from-to)748-769
Number of pages21
JournalPublic Law: the constitutional and administrative law of the commonwealth
Publication statusPublished - 2007

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