THE CONTRIBUTION OF THE JUDICIARY TO THE ACHIEVEMENT OF  EQUALITY IN SOUTH AFRICA 

Abstract 

This article examines the transformative role of the judiciary in promoting and achieving  equality in post-apartheid South Africa. It highlights the historical context of systemic  discrimination before 1994, where legislative authority perpetuated inequality and the judiciary  lacked the power to intervene. The paper critically analyses constitutional provisions,  particularly sections 1, 2, and 9, which enshrine equality as a foundational value and mandate  judicial oversight to invalidate discriminatory laws. Through landmark cases, including  Minister of Finance v Van Heerden, National Coalition for Gay and Lesbian Equality v  Minister of Justice, and Mayelane v Ngwenyama, the judiciary is shown to actively dismantle  legal, customary, and social barriers to equality. The analysis underscores the judiciary’s  practical and constitutional contributions to advancing substantive equality, promoting human  dignity, and ensuring that historical disadvantages are addressed through remedial measures  and legal innovation. 

Introduction 

Pre-1994, the legislature had vested the state authority to a point that it would pass laws that  do not contribute to the achievement of equality, and the judiciary had no authority to intervene  by overruling such laws. This has also been explained in Makwanyane,1 which further reveals  that everyone has been scarred, with some communities hit harder by violence and injustice,  and many people having lost loved ones or suffered personally. The advent of democracy and  the adoption of the 1996 Constitution fundamentally transformed South Africa’s legal  landscape, prioritizing equality as a foundational value. Section 1 of the Constitution  recognizes the Republic as a sovereign democratic state committed to human dignity, equality,  and advancing human rights and freedoms. Section 9 explicitly protects citizens from unfair  discrimination and promotes measures to remedy historical disadvantage.2 Empowered by  constitutional supremacy under section 2 and judicial authority under section 172, the judiciary  now plays a pivotal role in invalidating discriminatory laws, developing legal norms, and  enforcing substantive equality. This article explores the judiciary’s contribution to achieving  Shivambu Miyelani Forget, “THE COBRTIBUTION OF THE JUDICIARY TO THE ACHIEVEMENT OF  EQUALITY IN SOUTH AFRICA” [2025] ROL. equality, highlighting constitutional principles and landmark cases demonstrating its  transformative role in post-apartheid South Africa. 

Equality under the Constitution 

The preamble of the South African Constitution reveals that there were injustices and  inequalities pre-1994, and now the state seeks to improve the quality of life of all citizens and  free each person’s potential.3 

Section 1 of the Constitution states that the Republic of South Africa is one, sovereign,  democratic state. It provides for the foundational values of this state, the first value under  paragraph (a) is Human dignity, the achievement of equality, and the advancement of human rights and freedoms. This value highlights the achievement of equality.4 

Section 9 grants all citizens the right to equality. It states that: 

“(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2)  Equality includes the full and equal enjoyment of all rights and 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  discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex,  pregnancy, marital status, ethnic, social origin, colour, sexual origin, age, disability, religion, conscience,  belief, culture, language, and birth….”5 

It is submitted that the South African Constitution prioritizes equality as a fundamental right,  ensuring that all citizens are treated with dignity and protected from unfair discrimination,  while promoting measures to advance those who have been historically disadvantaged. 

This right is inherent from section 8 of the interim constitution, which provides that: 

“(1) Every person shall have the right to equality before the law and to equal protection of the law. (2) No person  shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this  provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour,  sexual orientation, age, disability, religion, conscience, belief, culture or language. (3) (a) This section shall not  preclude measures designed to achieve the adequate protection and advancement of persons or groups or  categories of persons disadvantaged by unfair discrimination to enable their full and equal enjoyment of all rights  and freedoms. (b) Every person or community dispossessed of rights in land before the commencement of this  Constitution under any law which would have been inconsistent with subsection (2) had that subsection been in Shivambu Miyelani Forget, “THE COBRTIBUTION OF THE JUDICIARY TO THE ACHIEVEMENT OF  EQUALITY IN SOUTH AFRICA” [2025] ROL. 

operation at the time of the dispossession, shall be entitled to claim restitution of such rights subject to and in  accordance with sections 121, 122, and 123. (4) Prima facie proof of discrimination on any of the grounds  specified in subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in  that subsection, until the contrary is established.”6 

This section establishes a fundamental right to equality, protecting individuals from unfair  discrimination on various grounds and allowing for measures to advance those disadvantaged  by past discrimination. It further provides for restitution of rights in land and outlines the  process for determining unfair discrimination. 

The extent of the judiciary`s duty in the achievement of equality 

Section 2 of the Constitution states that the Constitution is the supreme law, all obligations it  imposes must be fulfilled, and any law or conduct that contradicts the Constitution is  unconstitutional and must be declared invalid.7 This section explicitly indicates the  requirement of achieving equality because it includes all provisions of the Constitution in all  chapters, schedules, and sections. Therefore, any law or conduct against achieving equality  must be declared invalid. 

The duty to invalidate the laws or conduct that disturbs the achievement of equality is vested  in the judiciary. Section 172(1) of the Constitution provides that: 

“When deciding a constitutional matter within its power, a court: (a) must declare that any law or conduct  that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make  any order that is just and equitable, including (i) an order limiting the retrospective effect of the  declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.”8 

This is evident that it is the greater extent to which the judiciary has a greater duty to contribute  towards the achievement of equality in the republic by rigorously upholding the Constitution’s  supremacy, declaring invalid any laws or conduct that perpetuate inequality, and crafting just  and equitable orders that promote the realization of equality for all citizens in the Republic. 

Practical contribution of the judiciary to the achievement of equality 

Section 9(2) of the Constitution stipulates that, to promote the achievement of equality,  legislative and other measures designed to protect or advance persons, or categories of persons,  Shivambu Miyelani Forget, “THE COBRTIBUTION OF THE JUDICIARY TO THE ACHIEVEMENT OF  EQUALITY IN SOUTH AFRICA” [2025] ROL. disadvantaged by unfair discrimination may be taken.9 This section affects the judiciary`s duty  to take measures that could maintain equality in South Africa. 

Motal explains that Measures to address past discrimination can target specific disadvantaged  groups, and it’s not necessary for each individual within the group to have personally  experienced discrimination. Being part of the affected group is sufficient to qualify for  beneficial treatment.10 

In Minister of Finance v Van Heerden,11 the Constitutional Court clarified the scope of section  9 of the Constitution, holding that not all differentiation is unfair discrimination and that  affirmative action measures designed to advance those disadvantaged by unfair discrimination  are not only permissible but required for achieving substantive equality. The case concerned a  government pension fund scheme that gave members of the new democratic Parliament more  favourable benefits than those who had served under apartheid. The Court upheld the scheme, finding that it satisfied section 9(2) by being aimed at remedying past disadvantage, designed  to protect or advance a class of persons disadvantaged by unfair discrimination, and promoting  the achievement of equality. In doing so, the judiciary confirmed that equality under the  Constitution is substantive, not formal, and that remedial measures are a legitimate and  essential tool for building a non-racial, non-sexist democratic society. 

National Coalition for Gay and Lesbian Equality v Minister of Justice:12 

The Constitutional Court advanced the achievement of equality by striking down the  common-law crime of sodomy and related statutory provisions that criminalized  consensual sexual conduct between men. The Court held that these laws violated the  rights to equality, dignity, and privacy, as they unfairly discriminated against gay men  by stigmatizing their intimate relationships and perpetuating systemic disadvantage. By  affirming that sexual orientation is an explicitly protected ground under the  Constitution, the judiciary dismantled a key element of legal discrimination against  LGBTQ+ people and set a transformative precedent for the recognition of their rights,  thereby reinforcing South Africa’s constitutional commitment to equality, dignity, and  freedom for all. Shivambu Miyelani Forget, “THE COBRTIBUTION OF THE JUDICIARY TO THE ACHIEVEMENT OF  EQUALITY IN SOUTH AFRICA” [2025] ROL. 

Mayelane v Ngwenyama:13 

The dispute was between two women, Mayelane and Ngwenyama, who were in a  marital relationship with the deceased. The applicant claimed that the marriage between  her husband and the respondent was invalid because she (Mayelane) was unaware of  such a marriage. She argued that in terms of Xitsonga customary law, the first wife`s  consent is required to validate the subsequent marriage of her husband. On the other  hand, the respondent, Ngwenyama, argued that the consent of the first wife is not  necessary for the validity of the polygamous marriage. The court viewed the matter  through the lens of the right to equality14 under section 9 of the Constitution, together  with section 6 of the Recognition of Customary Marriage Act 120 of 199815 that  provides for the full and equal capacity between the spouses in a customary marriage, which led to the reasoning that the validation of the polygamous marriage without the  first wife could violate her right to equality in a manner that deprives her of enjoying equal participation in the events that affect her matrimonial. For that reason, to achieve  equality, the court upheld the application, declared the marriage between the respondent  and the deceased, and developed Xitsonga customary law to include the first wife’s  consent as a mandatory requirement to validate the subsequent marriage of her husband.  The court has made a greater practical contribution towards achieving equality. 

In Gumede v President of the Republic of South Africa,16 Mrs Gumede was married under Zulu  customary law, which used to vest the husband with ownership of all the matrimonial property.  Women had no power over their matrimonial property. Gumede challenged this Zulu customary  law on the basis that it discriminates against women based on gender and constitutes unfair  discrimination under section 9(3). The court did nothing but uphold the application to achieve  equality. 

In Ramuhovhi v President of the Republic of South Africa,17 the judiciary made a decisive  contribution to the achievement of equality by striking down discriminatory provisions of  customary law and Section 7(1), which stated that the proprietary consequences of customary  marriages entered into before the commencement of the Act would continue to be governed by Shivambu Miyelani Forget, “THE COBRTIBUTION OF THE JUDICIARY TO THE ACHIEVEMENT OF  EQUALITY IN SOUTH AFRICA” [2025] ROL. 

customary law. The RCMA denied women in pre-Act polygynous marriages any property  rights, thereby entrenching patriarchal domination. The Constitutional Court emphasized that  customary law is a living system that must evolve in line with constitutional values, notably equality and dignity, and it extended the equal proprietary consequences of marriage in  community of property to all customary marriages regardless of when they were concluded. In  doing so, the Court dismantled systemic gender inequality, secured women’s substantive  economic rights, and restored their dignity, thus affirming the judiciary’s transformative role in  ensuring that the constitutional promise of a non-sexist and equal society is realized in practice. 

Shilubana v Nwamitwa:18 

The matter was within the royal family at Valoyi village, whereby the applicant, Ms  Nwamitwa, was deprived of occupying the throne of being a village chief (hosi). This  was because of the historical and customary law of male primogeniture that prevented  daughters from inheriting their father`s throne. The applicant sought a court order to  overrule these laws; she wanted to occupy her deceased father’s throne. On the other  hand, the uncle appointed to act as chief after the death of Nwamitwa`s father, relied  on customary law and historical context to argue that the applicant could not lead the  village. The court adjudicated this matter in a manner that contributes to achieving equality, with the lens of section 1 and section 9 of the constitution and its power to  invalidate the historical context and customary law applied at Valoyi village to prevent  gender inequality. 

Bhe v Khayelitsha Magistrate (CCT 49/03) [2004] ZACC 17; 

The Constitutional Court made a significant contribution to achieving equality by  striking down the rule of male primogeniture in customary law succession and declaring  provisions of the Black Administration Act19 unconstitutional, as they excluded women  and female children from inheriting property. The Court held that this system  entrenched gender and child discrimination, violating equality and dignity, and  extended the Intestate Succession Act 81 of 198720 to all intestate estates as an interim  remedy. In doing so, the judiciary dismantled patriarchal inheritance practices, secured Shivambu Miyelani Forget, “THE COBRTIBUTION OF THE JUDICIARY TO THE ACHIEVEMENT OF  EQUALITY IN SOUTH AFRICA” [2025] ROL. equal rights for widows and daughters, and affirmed its transformative role in aligning  customary law with constitutional values of dignity, equality, and non-discrimination.21 

Daniels v Campbell:22 

The Judiciary contributed to the achievement of equality by holding that the term “spouse” in the Maintenance of Surviving Spouses Act23 and the Intestate Succession  Act24 included partners married under Muslim marriages, historically excluded from  legal recognition. The Court found that excluding surviving spouses of Muslim  marriages from inheritance and maintenance benefits unfairly discriminated on the  grounds of religion, marital status, and gender, violating equality and dignity. The  judiciary advanced substantive equality by interpreting laws in line with constitutional  values, protecting Muslim women’s rights in marriage and succession, and affirming  their dignity. 

Gory v Kolver:25 

The Constitutional Court advanced the achievement of equality by addressing the  unequal treatment of same-sex partners under the Intestate Succession Act. It ruled that  excluding same-sex partners from intestate succession rights was unfair discrimination  based on sexual orientation, violating equality and dignity. By extending these rights to  same-sex partners, the judiciary advanced substantive equality, affirmed LGBTQ+  dignity, and upheld the Constitution’s transformative mandate. 

Jana Jordaan v Minister of Home Affairs and Another:26 

The matter before the Constitutional court was about examining sections 26(1)(a)-(c)  of the Births and Deaths Registration Act 51 of 1992 and Regulation 18(2)(a), which  permitted only women to adopt their husband’s surname upon marriage. Regulation  18(2)(a) allowed the Director-General of Home Affairs to authorise a surname change  for “good and sufficient reason,” including a change in marital status, but this provision  applied exclusively to women. The applicants challenged these provisions on the basis Shivambu Miyelani Forget, “THE COBRTIBUTION OF THE JUDICIARY TO THE ACHIEVEMENT OF  EQUALITY IN SOUTH AFRICA” [2025] ROL. that they constituted unfair discrimination against men, in violation of section 9 of the  Constitution, which guarantees equality before the law and prohibits unfair  discrimination, and section 10, which safeguards human dignity. The Court held that  the statutory and regulatory framework entrenched patriarchal norms and denied men  equal legal recognition in post-marital surname changes, rendering both the sections  and the regulation inconsistent with the Constitution. Consequently, the Constitutional  Court declared sections 26(1)(a)-(c) of the Births and Deaths Registries Act 51 of  1992,27 and Regulation 18(2)(a)28 constitutionally invalid and allowed men the right to  adopt their spouse’s surname. The declaration of invalidity was suspended temporarily  to permit Parliament to amend the statutory and regulatory provisions in line with  constitutional values. The judgment illustrates the supremacy of the Constitution over  statutory law and regulations, demonstrating that they must comply with the  achievement of equality. 

It is submitted that the cases discussed collectively provide clear evidence of the judiciary’s  practical and transformative contribution to achieving equality in South Africa. Through its  interpretation and enforcement of the Constitution, the judiciary has dismantled discriminatory  laws and customs, protected historically disadvantaged groups, and promoted substantive  equality in statutory and customary contexts. By developing legal norms, validating remedial  measures, and ensuring that legislative and regulatory frameworks comply with constitutional  values, the courts have actively advanced gender equality, safeguarded human dignity, and  upheld the rights of marginalized communities. These examples demonstrate that the judiciary  exercises a greater and decisive role in achieving equality, not merely as an interpreter of law  but as a central agent in realizing the Constitution’s vision of a just, inclusive, and non discriminatory society. 

Conclusion 

The judiciary plays a pivotal and transformative role in achieving equality in South Africa,  serving as a key agent in realizing the Constitution’s vision of a just, inclusive, and non discriminatory society. Through its interpretation and enforcement of constitutional provisions,  particularly sections 1, 2, and 9, the judiciary has dismantled discriminatory laws and practices,  ensured protection and recognition for historically disadvantaged groups, and promoted Shivambu Miyelani Forget, “THE COBRTIBUTION OF THE JUDICIARY TO THE ACHIEVEMENT OF  EQUALITY IN SOUTH AFRICA” [2025] ROL. substantive equality across statutory and customary contexts. By developing legal norms,  validating remedial measures, and ensuring that legislation and regulations comply with  constitutional values, the courts have actively advanced gender equality, safeguarded human  dignity, and upheld the rights of marginalized communities. It is submitted that the judiciary  plays a crucial role in advancing equality, serving not just as a legal interpreter but as a  transformative force that helps build a society grounded in dignity, fairness, and human rights.29 Shivambu Miyelani Forget, “THE COBRTIBUTION OF THE JUDICIARY TO THE ACHIEVEMENT OF  EQUALITY IN SOUTH AFRICA” [2025] ROL. 

Reference(S):

1 S v Makwanyane Another CCT3/94 [1995] ZACC 3. 

2I M Rautenbach, “Rautenbach – Malherbe Constitutional Law” (2018, 7th edn) 235.

3 The Constitution of the Repupliv of South Africa, 1996. 

4 The Constitution of the Repupliv of South Africa, s1. 

5 The Constitution of the Repupliv of South Africa, s9.

6 Constitution of The Republic of South Africa, Act No. 200 of 1993, s8. 

7 The Constitution of the Repupliv of South Africa, s2 

8 The Constitution of the Repupliv of South Africa, s172(1)

9 The Constitution, s9(2). 

10 Motala v University of Natal [1995] 3 BCLR 374 (D) 382–383. 

11 Minister of Finance v Van Heerden [2004] ZACC 3 

12 National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] ZACC 15

13 Mayelane v Ngwnyama [2013] ZACC 14 

14 Constitution, s9 

15 Recognition of Customary Marriage Act 120 of 1998, s6. 

16 Gumede v President of the Republic of South Africa [2008] ZACC 

17 Ramuhovhi v President of the Republic of South Africa [2017] ZACC 41

18 Shilubana v Nwamitwa [2007] ZACC 14 

19 Black Administration Act 38 of 1927 

20 Intestate Succession Act 81 of 1987

21 Bhe v Khayelitsha Magistrate CCT 49/03 [2004] ZACC 17. 

22 Daniels v Campbell [2004] 5 SA 331 (CC). 

23 Maintenance of Surviving Spouses Act 27 of 1990, s1. 

24 Intestate Succession Act 81 of 1987, s1. 

25 Gory v Kolver [2007] (4) SA 97 (CC) 

26 Jana Jordaan v Minister of Home Affairs and Another CCT 296/24) [2025] ZACC 1

27 Births and Deaths Registries Act 51 of 1992, s26(1)(a)-(c) 

28 Regulation 18(2)(a)

29 Christo Botha, STATUTORY INTERPRETATION / An Introduction for Students (3rd edn) 175.