Is a Right to Affirmative Action the Solution to the Orwellian Postulate That All are Equal But ..‪.‬

Abstract Legislation often prescribes the broad parameters of social development, particularly in the creation of socio-economic entitlements and rights. In some cases such prescriptions may even be quite detailed. However, it is through the courts that these parameters are defined, narrowed, broadened, given substance and, ultimately, applied. It is thus the courts that create the body of jurisprudence that helps us to understand, and thus to analyse, such legislation. This article adopts as its starting point legislation that has been enacted to address the issues of the pervasive inequalities inherent in South African society, goes on to analyse the approaches adopted to solve similar problems in other jurisdictions, and then analyses the approaches adopted by South African courts in interpreting the legislation and giving content to the will of the legislature; ultimately addressing the question of whether affirmative action can now be described as a right.