Abstract

This essay juxtaposes Deputy Chief Justice Moseneke’s judgment in Barnard with the Campbell judgment of the Southern African Development Community (‘SADC’) Tribunal, to underscore the vital role of judges in the quest for substantive racial equality in southern Africa. This essay situates Barnard in an antisubordination tradition. It calls attention to Justice Moseneke’s transformative vision of substantive racial equality and the doctrinal path he forges to this end. It then argues that Campbell — which should be read in important part as an affirmative action case — represents a missed opportunity for setting the region on an analogous course. On the specific issue of racial discrimination, Campbell’s rejection of the relevance of historical racial subordination and its lack of doctrinal nuance in assessing racial discrimination risk charting a course towards formal notions of equality that Barnard rightly repudiates. By making this argument, this essay offers the first detailed legal critique of Campbell as an affirmative action case.