Affirmative action based on race is highly controversial both in South Africa and the United States. Moreover the South African Constitutional Court, as shown by its ruling in Hugo (see Chapter 4), analyzes affirmative action differently than does the U.S. Supreme Court. This chapter compares leading racial affirmative action cases from these countries to learn more about their approaches and to assess whether the decisions facilitate social progress.

There are important national differences. For example, South Africa's apartheid ended more recently than American slavery or American segregation, and South African blacks are a political majority. South Africa's recent history of oppression therefore makes it surprising that the country's courts have been tough on affirmative action, requiring that those burdened receive procedural and other protections. The U.S. Supreme Court's decisions in this area are also surprising in that acceptable American plans must support First Amendment values, not equalization. The Supreme Court's recent rejection of public school racial assignments highlights this limitation. Thus, the strong differences in social context do not result in precisely the distinctions in constitutional doctrine that one might expect.

SOUTH AFRICAN JURISPRUDENCE

The Bill of Rights affirmative action provision, section 9(2), reads as follows: