‘We the people’: the relationship between the South African constitution and the ANC's transformation policies

Abstract

This paper engages current policies of social transformation in South Africa from a political theoretical point of view. As the transformation project purports to serve the ideal of equality, conceptions of equality that might justify or underwrite a policy of affirmative action are considered. On the basis of the political rhetoric behind South Africa's current affirmative action policy and the nature of the Employment Equity Act itself, it is argued that a very particular conception of equality lies at the heart of that policy, and that this conception is closely allied to communitarian and Rousseauean notions of the politics of the common good. It is submitted that the question of how, if at all, this communitarian understanding of equality coheres with the rest of the South African legal order, and especially the right to equality enshrined in the Constitution, cannot be satisfactorily answered. The theoretical consistency of current affirmative action policies with the Constitution must therefore be doubted.

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