- Title
- Substantive equality and the individual right to affirmative action
- Creator
- Bothma, Deon
- Subject
- Affirmative action programs -- South Africa
- Subject
- Labor laws and legislation -- South Africa
- Subject
- Equality -- South Africa
- Date Issued
- 2025-04
- Date
- 2025-04
- Type
- Master's theses
- Type
- text
- Identifier
- http://hdl.handle.net/10948/72063
- Identifier
- vital:79182
- Description
- The value of- and right to equality is important in all democracies. Equality discourse is particularly important in South Africa considering its unequal colonial and apartheid past. For centuries, certain categories of people have been excluded from fully participating in the economy and in social life while others benefitted substantially. The advent of democracy has called for a new constitutional order and the rule of law with a human rights focus underpinned by the values of non-racialism, freedom, and equality. Dismantling the architecture of oppression would not be possible without placing positive duties on the state and private individuals to redistribute economic and other opportunities from which those previously disadvantaged by unfair discrimination had been excluded. The right to equality is a contested concept, and the holistic understanding and application of formal and substantive notions of equality are often misunderstood and misapplied in the courts, business, political debates, and academia. This treatise focuses on the constitutional right to equality, with a specific focus on affirmative action measures and their application in the labour market and employment relations. The conventional notion of equality in the form of formal equality, that is not to be discriminated against, seems to be a stumbling block to the achievement of equality, since it often neglects the duty to provide in the form of substantive equality and positive measures. The Employment Equity Act, which has been enacted to give effect to the constitutional right to equality, distinctly provides provisions regulating the prohibition against unfair discrimination and the promotion of positive measures through affirmative action provisions. Affirmative action provisions in the Employment Equity Act have been a contentious matter among all races, men and women, and people with disabilities who contend for work opportunities in a labour market plagued by high levels of unemployment. Equality jurisprudence has been developing since the advent of democracy under a constitutional order and the subsequent promulgation of the Labour Relations Act and the Employment Equity Act. However, the body of case law has not been consistently developed and has resulted in more divergence in debates around equality provisions in various pieces of legislation. The divergent approaches to equality adjudication have necessitated a critical review of the equality provisions in the Bill of Rights and national employment legislation, and furthermore, an evaluation and critique of the application of relevant legislative provisions. Finally, to contribute to the existing body of literature, recommendations will be advanced for consideration by courts and other bodies empowered to decide disputes involving unfair discrimination and affirmative action.
- Description
- Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2025
- Format
- computer
- Format
- online resource
- Format
- application/pdf
- Format
- 1 online resource (82 pages)
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
- Rights
- All Rights Reserved
- Rights
- Open Access
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NMU Department of Mercantile Law
| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | BOTHMA, D.pdf | 862 KB | Adobe Acrobat PDF | View Details Download |