Section 9 of the South African constitution provides that:
"(1) Everyone is equal before the law and has the righttoequal protection and benefit of the law.
(2) Equality includes the full and equal enjoymentof allrightsand freedoms. To promote the achievement of equality,legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminatedirectly or indirectly against anyone on one or more grounds, including race, gender,sex, pregnancy,marital status,ethnic or social origin, colour, sexualorientation, age,disability,religion, conscience,
66 Unit for Gender Research in Law Unisa Women andthe Law in South Africa-Empowerment through Enlightenment(1998) 197.
67Ibid.
belief, culture, language and birth.
(4) No person may unfairly discriminate directly orindirectly against anyone on one or more grounds in terms of subsection (3).National legislation must be enacted to prevent or prohibit unfair discrimination
(5)Discrimination on one or more of the grounds listedinsubsection (3)is unfair unless it is established that the discrimination is fair."
The South African Constitution emphasizes the right to equality and the right to human dignity as the basis of a democratic society." The problem with the right to equality however, is that there is no yardstick for judging who should be equal to whom. The concept of cultural and religious diversity does not make this determination any easier because all groups have some things that distinguish them from the whole society and persons of those groups have been granted the right to live according to what they believe in.59 Pierre De Vos argues that the right to equality can be interpreted in a myriad of different ways, and any investigation into the nature and scope of such right will invariably produce far more questions than
answers."
Some of the questions that may arise include:• Against which individual, group or other yardstickshould the position of the affected subjects be measured to determine whether equality has been attained or not?
• What is the relationship between the right to equality and the right not to be discriminated against? Are these two concepts merely two sides of one coin or should they be viewed as two distinct concepts with distinct fields of operation?"
68Section 1(a) of the Constitution Act 108 of 1996 proclaims that'human dignity, the achievement of equality and advancement of human rights and freedoms' to be values on which the Republic of South Africa is founded.
69Section 31 (1) of the South African Constitution.
70 P. De Vos "Substantive equality after Grootboom: the emergence of social and economic context as a guiding value in equality jurisprudence" Equality Law: Reflections from South Africa and elsewhere (2001) 54.
71D. RaeEqualities (1981) 72.
These questions might be asked when one deals with the right of individuals belonging to cultural groups to practice their culture as compared to the right of women within those cultural groups to gender equality. Does equality as envisaged by those women mean equality with males in their cultural groups or equality with a typical South African man who was never a victim of being treated as a sub-citizen because of the policies of the apartheid regime?
There are two approaches to dealing with the right to equality: the formal approach and the substantive approach. The formal approach to equality normally demands the equal treatment of individuals regardless of their circumstances. It presupposes that all persons are equal bearers of rights within a just social order. According to this view inequality is an aberration that can be eliminated by extending the same "neutral" norm or standards." This approach treats people in the same way despite their past and present positioning in the society. The substantive approach to equality on the other hand views equality as encompassing an approach to analysis or evaluation of the impugned conduct or law. It requires the courts to have regard to the context of the alleged violation, including its social and historical context, and its relationship to systematic and structural forms of domination within a society, with a view to remedying disadvantage and subjuqatlon." A substantive equality approach permits and reveals the justifications for positive steps to be taken to redress patterns of disadvantage. In the context of the right to gender equality within cultural groups, the justification of a custom versus the effect on the right to inherent dignity of the
72 P, De Vos "Substantive equality after Grootboom: the emergence of social and economic context as a guiding value in the equality jurisprudence" Equality Law- Reflections from South Africa and Elsewhere (2001) 59.
73 S. Cowen "Can dignity guide South Africa's equality jurisprudence?" (2000) 17 South Africa Journal on Human Rights 37.
affected woman must be the guiding factors, rather than how the other groups conduct themselves, as that comparative approachgoes against the promotion of cultural diversity.
Despite all the technicalities associated with the right to equality, it can be said that it is the right enjoyed by an individual based on being human despite any other attributes that distinguish them from other human beings. However, denial of the right to equality based on the requirements of a certain right does not amount to unfair discrimination.