Poverty discrimination under the Promotion of Equality and Prevention of Unfair Discrimination Act: A transformative substantive equality approach

Abstract

Abstract This article considers the implications of a transformative substantive equality interpretation of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) for the interpretation stage of a claim of poverty-based discrimination. It draws from the work of the critical social and global justice theorist, Nancy Fraser, to briefly develop and extend existing transformative accounts of substantive equality that are faithful to the constitutional text and its legislative expression in the Equality Act. The article shows that the Equality Act could be interpreted to capture poverty discrimination that manifests along three intersecting axes, namely ‘misrepresentation’, ‘maldistribution’, and ‘misrecognition’. These axes highlight the political marginalisation, material disadvantage and pervasive prejudices, violence and stigma that characterise the disadvantages of poverty. The article then proposes three inquiries of an unfair discrimination analysis under the Equality Act that provide adjudicators with a critical legal framework to interpret the various stages in line with a transformative substantive equality approach.