Prof Darcy du Toit’s most recent article The Right to Equality versus Employer ‘Control’ and Employee ‘Subordination’: Are Some More Equal Than Others? (2016) 37 ILJ 1-27 is erudite, interesting and important.  The right to equality, apart from being affirmed in numerous international instruments, is embedded in our Constitution as a value and not just a right.  This is important because only the rights contained in sections 7 – 39 (inclusive) in chapter 2 of the Constitution (Bill of Rights) are subject to limitation as provided for in s 36 of the Constitution. 

36     Limitation of rights.

(1)  The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a)        the nature of the right;

(b)        the importance of the purpose of the limitation;

(c)         the nature and extent of the limitation;

(d)        the relation between the limitation and its purpose; and

(e)        less restrictive means to achieve the purpose.

(2)  Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

As Darcy du Toit points out foundational values are not subject to the same limitation as explained in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 1999 (3) BCLR 280 (C) at 292:

‘As Mohamed DP (as he then was) said in Fraser v Children’s Court, Pretoria North 1997 (2) SA 261 (CC):

the guarantee of equality lies at the very heart of the Constitution [and] it permeates and defines the very ethos on which the Constitution is premised” (at paragraph [20]).

A breach of this right can only be sanctioned if there is a clear and sustainable justification therefor. This becomes a more difficult onus to discharge in the case of foundational values such as equality. To consider a limitation to be viable, it would have to represent in the first place an important purpose’. [Emphasis added]

Reference is also made to an important point made by Janet Kentridge in ‘Equality’ in M Chaskalson et al (eds) Constitutional Law of South Africa (Juta 1996) 14-3

‘Equality is not simply a matter of likeness.  It is, equally, a matter of difference.  That those who are different should be differently treated is as vital to equality as is the requirement that those who are like are treated alike.  In certain cases it is the very essence of equality to make distinctions between groups and individuals in order to accommodate their different needs and interests’.