ALITUHA NIVES.

SUBSTANTIVE AND FORMAL EQUALITY.

Equality before the law refers to the status or condition of being treated fairly according to
regularly established norms of justice1

Article 21(1) of the 1995 constitution provides for equality and freedom from discrimination
and it states that all persons are equal before and under the law in all spheres of political ,
economic, social and cultural life and in every other respect and shall enjoy equal protection of
the law.

The concept of equality is traditionally understood to mean “the right to be equal to men”. This
becomes problematic when it is extended to the understanding that women must be treated
exactly like men if they are to gain equality with men. It implies that women must be treated
according to male standards, obscuring the ways in which women are different from men and
how they will be disadvantaged because of these differences

Substantive equality is a substantive law on human rights that is concerned with equality of the
outcome for disadvantaged and marginalized people and groups and generally all subgroups in
society.

Substantive equality recognizes that the law must take elements such as discrimination,
marginalization, and unequal distribution into account in order to achieve equal results for basic
human rights, and access to goods and services.

Sandra Fredman has argued that substantive equality should be viewed as a four-dimensional
concept of recognition, redistribution, participation, and transformation.

The redistributive dimension seeks to redress disadvantage through affirmative action, while the
recognition dimension aims to promote the right to equality and identify the stereotypes,
prejudice and violence that affect marginalized and disadvantaged individuals.

The concept of substantive equality arose out of the recognition that formal equality may not be
sufficient to ensure that women enjoy the same rights as men. An ostensibly gender-neutral
1
Black’s law dictionary 9th edition page 616
policy, while not excluding women per se, may result in a de facto discrimination against
women. It does not consider.

This approach was put into place because the feminist laws argued that the failure to accord
women maternity benefits was a form of gender discrimination2.

The substantive equality approach recognises that women and men cannot be treated the same,
and for equality of results to occur, women and men may need to be treated differently. The
challenge is to know when to take note of difference, and to decide on appropriate measures for
different treatment that will facilitate equal access, control and equal result. Such measures will
have to be assessed to ensure they promote autonomy rather than protection or dependency. This
has to be done without compromising the claim for equal rights and equality as a legal standard.

An example of substantive equality in the workplace would be hiring protected status veterans
or giving preference to other minority groups, like members of the LGBTQ community

The Pillay case is an example where the Constitutional Court passed the ‘test of tolerance’,
as the Court adopted a substantive approach to equality as they recognised and addressed indirect
discrimination. The respondent successfully instituted a law suit against the school’s Code of
Conduct (Code) and the Department of Education (who supported the school’s approach) not to
allow her daughter to wear a nose stud at school as an expression of her Hindu religion and
South Indian culture as it conflicted with the Code. Upholding the High Court’s decision, the
Constitutional Court held that the Code conflicted with respondent’s daughter’s religious and
cultural rights and also violated her right to freedom of expression. In particular, for the purposes
of this article, Chief Justice Langa, writing for the majority, held that the prohibition of wearing
jewellery had the potential for indirect discrimination because it allowed certain groups of
learners to express their religious and cultural identity freely, while denying that right to others

In the Du Toit case, the Constitutional Court, with relative ease, was able to find a violation of
the right to equality due to a finding of direct discrimination. The Constitutional Court
unanimously held that certain provisions of the Child Care Act 1983 and the Guardianship Act
2
Page 87
1993, which prevented a lesbian couple in a permanent relationship from jointly adopting
children, violated the equality provision on two grounds: sexual orientation and marital status.
The latter was violated as the legislation confined the right to adopt children jointly to married
couples.

Formal equality or equality as consistency requires that all persons who are in the same
situation be accorded the same treatment and that people should not be treated differently
because of arbitrary characteristics such as religion, race or gender. This formulation resonates
with the original Aristotelian conception of equality, that like cases should be treated alike. It is
the most widespread and least contentious understanding of equality and forms the conceptual
basis of the legal concept, direct discrimination.

According to Elsje Bonthys & Catherine Albertyn3 formal equality is based on the idea that
inequality is irrational and arbitrary and therefore this approach cannot tolerate irrational
differences hence it struggles to perceive affirmative action measures as forms of equality.

Under this formal notion of discrimination, as long as there is consistency in treatment, there will
be no discrimination. A formal approach to equality therefore only requires equal application of
the law without further examination of the particular circumstances or context of the individual
or group and, consequently, the content and the potential discriminatory impact of the law and/or
policy under review. In other words, it is a symmetrical concept. Direct discrimination also
requires a comparator. The comparator in proving direct discrimination tends to be the ‘dominant
norm’: white, male, able-bodied, and heterosexual. Such a limited notion disregards all aspects
of group membership, and tends to individualise everything so that patterns of group-based
oppression and subordination are rendered invisible.

Formal equality, which is a belief that, for fairness, people must be consistently or equally treated
at all times. Substantive equality, which goes beyond the basics of recognizing the equality of
everyone and identifies differences among groups of people with the long-term goal of greater
understanding
3
Gender, Law and Justice at page 87
For example, if we are looking at the ground of sex, men and women should be treated
identically in all spheres of life.

According to the case of Geduldig V Aiello4 court stated that pregnancy was a result of
biological difference and that differentiation on this basis could not amount to discrimination.

Inconclusion, the substantive equality was introduced in order to provide a solution for the
loopholes that formal equality could not solve.

4
417 US 484.