The South African Equality Act

Abstract

Abstract provided by author

This dissertation is premised upon the proposition that the manner in which equality is understood determines its application in practical situations. It focuses on the connection between the understanding and the application of equality. More specifically, it addresses two sub-issues. First, it addresses the issue of discrimination on grounds not enumerated in the Namibian Constitution. Second, it challenges the relationship between affirmative action and unfair discrimination. To resolve the identified equality problem and the issues flowing therefrom, the provisions of the South African Equality Act are used. In essence, the question posed by this dissertation is whether Namibia should enact an equality-specific piece of legislation. The in-depth analysis of Namibian equality jurisprudence in the light of the South African Equality Act reveals three major points. The first point concerns effective remedies. The issue is the extent to which the common law is constitutionally reviewable when relied upon by private litigants. The common law generally provide remedies that are more suitable to private disputes. These remedies unfortunately are not always adequate or do not operate systematically. Hence the need for the general codification of equality in Namibia. Furthermore, the right to equality is substantially influenced by the broader interpretation of the Constitution, which is ethical and value-orientated in the sense that interpretation is done so purposively and liberally as to give expression to the values of the Constitution and the people of Namibia. Finally, the challenge, as far as affirmative action and equality are concerned, is to move beyond affirmative action to a policy that would effectively address the issue of redistributing resources in socio-economic terms.