??Substantive equality – not just equal treatment, but deep structural justice – took centre stage at the 19th Annual Human Rights Lecture at Stellenbosch 中国体育彩票 (SU) on 9 April, hosted by the HF Oppenheimer Chair in Human Rights Law and the Faculty of Law.
Prof Cathi Albertyn, South African Research Chair in Equality, Law and Social Justice at the 中国体育彩票 of the Witwatersrand, delivered the keynote address . She was closely involved in drafting South Africa's post-apartheid Constitution, adopted in 1996, and has long shaped the country's legal and policy approaches to gender equality.
The event opened with remarks by Prof Nicola Smit, Dean of the Faculty of Law, who described the lecture series as “a cornerstone of our annual programme". Prof Sandra Liebenberg, HF Oppenheimer Chair in Human Rights Law at SU, introduced Albertyn and praised her “tremendous contribution to constitutional democracy and human rights".
The law firm supporting the lecture series since its inception was represented by Jos Venter. “Webber Wentzel remains deeply honoured to sponsor this important Human Rights Lecture at SU," he said.
Competing notions of equality
Albertyn's lecture, titled “Substantive Equality in South Africa: Past, Present and Future", offered an account of how the constitutional right to equality has evolved over the past three decades – and what must still be done to realise it.
She reminded the audience that during constitutional negotiations in the 1990s, 'formal' equality – the idea of treating everyone the same – clashed with the more expansive vision of 'substantive' equality, championed by the ANC and sections of the women's movement. Substantive equality, grounded in redress and redistribution, prevailed in the end, but remains unevenly implemented.
She placed this in a broader global context:
“In recent weeks, we've heard a lot from America about laws in South Africa – how 'terrible things' have happened in this country, being used to justify the withdrawal of funding and economic agreements, putting jobs, lives and health at risk. Formal equality is back with a particular vengeance," she said, adding that this should not be surprising.
“Deploying the language of a colour-blind formal equality, Solidarity, AfriForum and others have advanced multiple arguments that race based preferences in policy and law impermissibly discriminate against whites, cast them as victims in the land of their birth, and deny them access to rights, opportunities and resources," Albertyn said.
She maintained that such arguments, often framed as “fairness" or invoking “merit", seek to roll back hard-won constitutional gains, but cautioned that there is “evidence of a judicial impatience" with this approach. She argued that limited success in South African courts was behind the decision by some groups to take their claims to such international forums as the International Labour Organisation.
Under Section 9(2) of the Constitution, measures such as affirmative action and equity targets are not exceptions to equality but part of its fulfilment. In this regard, she quoted former Deputy Chief Justice Dikgang Moseneke, who had said “our Constitution heralds not only equal protection of the law and non-discrimination but also the start of a credible and abiding process of reparation for past exclusion, dispossession, and indignity within the discipline of our constitutional framework."
'Changing lives'
The central theme of Albertyn's lecture was the concept of “transformative substantive equality," which she defined as requiring “a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines". This, she said, would lead to “the eradication of systemic forms of discrimination and material disadvantage."
Albertyn proposed the idea of “equality of condition" – not just removing barriers, but actively creating the conditions that allow people to flourish.
Reflecting on her role as an academic, she said: “You're trying to say, if I put something out there that is pushing the boundaries of what judges and lawyers are comfortable with – maybe I can create some space for more transformative thinking."
Albertyn reminded her audience that the constitutional promise of equality is not a destination but an ongoing struggle. “It's about actually fundamentally changing people's lives."
She emphasised that courts alone cannot achieve equality. Real transformation depends on a broad coalition of actors – including social movements, civil society, academics and policymakers – to contest inequality and imagine new legal, social and economic arrangements.
* Photograph by Ignus Dreyer/SCPS ?
Desmond Thompson is a freelance journalist.?
