Paving the ways? : gender and equality in a new South Africa

Abstract

As the new Constitutional order of South Africa came into being in the course of democratic transition, the need for a concept of (gender) equality different from its traditional liberal understanding became obvious. Realizing the limits of formal Aristotelian equality based on comparison and contrast, South Africa’s approach was guided by the purpose of transforming existing social inequalities and power imbalances. Thus, it takes account of the heterogeneous context of its citizens and the intersection of public and private spheres, and aims at the construction of substantive justice. This work explores, within the parameters of feminist legal scholarship and the experience of South African jurisprudence, how the constitutional right and value equality, as a basis of all other fundamental rights, can be used to address women’s realities. This means arguing for the expansion of the right to cover issues traditionally outside its scope, like gender-based violence, and to allow equality to guide the interpretation of other rights, the legislation and the development of common law. It also means that the notion of substantive equality becomes the very foundation of state action on all levels, from the judiciary to the executive and the legislature, to use its inherent power for the creation of a less relative and a more absolute equal society.