Affirmative action: a decidedly middle-class problem
- Pierre de Vos
- 07 Nov 2012 01:18 (South Africa)
Forget about widespread hunger and unemployment; police brutality, torture and even murder; endemic misogyny, homophobia, racism and xenophobia; an education system that condemns the majority of South Africans to a life without any meaningful opportunities; or even ever-increasing corruption and abuse of power by the rapacious political and business elite. Instead of focusing on these shocking problems, some middle-class South Africans (who are mostly, but not exclusively, white) focus obsessively on affirmative action, which they seem to view as the greatest injustice perpetrated in modern day South Africa.
This group firmly believes that affirmative action “punishes” so-called “innocent” young whites, whose relative privilege has absolutely nothing – nothing, I tell you – to do with Apartheid and the concomitant privileges their parents or grandparents reaped at the expense of black South Africans. They would like us to believe that their parents all worked very hard for their money (and some must have worked almost as hard as the black people who dug up the gold, tilled the fields and built the roads – at a pittance of the pay of their white bosses). They tell us that their parents and grandparents were not advantaged in any way, despite the fact that they never had to compete with the overwhelming majority of South Africans for access to educational opportunities, jobs and property.
Most of us who do not leave comments on the News24 website (and mostly avoid reading those comments in order to retain our sanity), know that this fantasy has nothing to do with reality. We know that it has everything to do with a delusional and self-justificatory avoidance of reality, based on either a deeply sublimated sense of guilt about the fact that all white people benefited from Apartheid and that most did little to overthrow the regime that enforced it (voting for the PFP, donating old clothes to the women working in your house and once helping out at a soup kitchen in a township do not really count), or a sense of entitlement that springs from the deeply embedded but often unacknowledged sense of cultural and racial superiority.
It is therefore very difficult to have a sensible and nuanced discussion in South Africa about affirmative action and its constitutionally mandated limits. But in my view it is important to have such a discussion. How else will one be able to mount a plausible and necessary defence of race-based affirmative action while pointing out that support for structured, principled, race-based affirmative action must not be confused with support for the corrupt or nepotistic abuse of affirmative action by racial essentialists?
It is in this context that I wish to explore the potential weaknesses of the Labour Appeal Court judgment of Judge Mlambo (Judges Davis and Jappie concurring) in South African Police Services v Solidarity.
The Labour Court had previously found that Mrs Barnard had been discriminated against in contravention of section 6(1) of the Employment Equity Act because on two occasions she was not promoted despite the fact that she was recommended for the job and in both cases the post was not filled.
In the lower court, it was established that where a post could not be filled owing to the paucity of suitable candidates from an underrepresented category, promotion to a post should not ordinarily and in the absence of a clear and satisfactory explanation be denied to a suitably qualified candidate from another group. This finding was based on a reading of section 6(2) of the Act (which confirms that it would not be discriminatory to take affirmative action measures in the workplace), read with section 15(3) of the Act (which states that affirmative action measures could include preferential treatment and numerical goals, but had to exclude the imposition of rigid quotas).
The lower court ruling did not prohibit an institution from implementing affirmative action measures which reserved targeted posts for designated groups (as Woolworths had done recently). Neither did it prohibit an employer from ever leaving a post open instead of appointing a white candidate. It did find that in the absence of a good explanation to justify its decision, a blanket refusal to promote a white candidate even where no suitably qualified black candidates were available for appointment would not comply with the Employment Equity Act, read with the right to equality in the Constitution.
The lower court’s flexible pro-affirmative action stance seems about right.
Nevertheless, the Labour Appeal Court seemed to have rejected this general approach, perhaps because it second-guessed the appointments panel and the National Commissioner who had all decided not to appoint anyone to the position. Because the court turned a factual disagreement into a legal one, it made bad law. That is perhaps why the re-interpretation of the facts led the court to a rather absolutist view on affirmative action which cannot easily be squared with the Constitutional Court jurisprudence on the matter.
The Labour Appeal Court correctly emphasised the fact that affirmative action was not an exception to equality but a requirement for its achievement, stating that:
“our Constitution, and in particular section 9 thereof, read as a whole, embraces for good reason a substantive conception of equality inclusive of measures to redress existing inequality. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.”
However, disappointingly, the Labour Appeal Court took a rather stark and simplistic view of the limits of affirmative action by arguing that the “implementation of restitutionary measures cannot be made subject to an individual’s right to equality” as this would defeat the very purpose of having restitutionary measures in the first place. It seemed to suggest – quite wrongly, in my view – that if a court demonstrated any concern for those excluded from the benefits of affirmative action measures, a court would always have to find that those measures “fall short” of the demands of non-discrimination, “due to the reality that there will always be adverse effects on persons from non-designated groups” and would have to nullify the affirmative action measures.
The judgment criticised the lower court because Mlambo mischaracterised that court’s decision as one in which the prohibition on non-discrimination would always trump the need for structured affirmative action measures. But this is not what the lower court actually held. Instead the lower court had held – in line with the Constitutional Court jurisprudence – that a balance must always be struck between the various interests at stake in affirmative action cases.
On the one hand, one could not have too strict a test for affirmative action as this would derail well-devised and targeted affirmative action measures aimed at transforming the workplace. On the other hand, affirmative action measures which in effect placed an absolute bar on the appointment or promotion of all white candidates in the workplace would diminish the human dignity of white applicants and would not be constitutionally permissible.
The Constitutional Court struck this balance by developing a specific test for valid affirmative action programmes. This test developed by the Constitutional Court does not completely ignore the interests of those who were not benefiting from an affirmative action programme. Yet the Labour Appeal Court ignored this jurisprudence and suggested that a court must choose: either it must always invalidate affirmative action measures because these would be found to be discriminatory, or such measures must always be deemed legal – no matter how harsh and permanent the effect of the measures on the previously advantaged might be.
For the Appeal Court there seemed to be no middle ground. But this approach cannot be squared with the Constitutional Court’s jurisprudence on affirmative action and I would not be surprised if that court overturns this decision.
The Constitutional Court has stated on several occasions that when one is dealing with a structured affirmative action programme, one would first ask whether such a programme constituted an abuse of power or imposed such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened. To impose rigid quotas would do exactly that. This test strikes the balance between recognising the need for targeted affirmative action measures while also recognising that the measures could not permanently exclude white people from advancement in the workplace.
The problem with the judgment of the Labour Appeal Court is that it failed to deal with this jurisprudence. Instead it questioned the decision of the authorities not to appoint any of the black applicants “who were by all accounts appointable”. It found that the black candidates had an unquestionable claim to be appointed over Barnard in keeping with the Employment Equity Plan.
It cannot be argued on the facts of this matter that the appellant’s Employment Equity Plan seeks the appointment of only black employees irrespective of other criteria. One of the criteria set out in the plan is the suitability of candidates. That to me suggests that should a black candidate be unsuitable, that candidate will not be appointed. This is also defined in National Instruction 1. Clearly, as was aptly argued by counsel for the amicus, the Employment Equity Plan does not sanction mediocrity or incompetence. Manifestly this was not the case with the two black candidates in this case.
I would guess that the Labour Appeal Court’s re-interpretation of the facts stood in the way of a legally sound judgment, forcing it to develop affirmative action jurisprudence that cannot be squared with the affirmative action jurisprudence of the Constitutional Court.
It must be said that if the Labour Appeal Court’s view of the facts are correct and if one or more of the black applicants were indeed appointable and should indeed have been appointed, then Mrs Barnard would not have a legal leg to stand on. This is because where a black candidate is appointable and when that appointment would advance the numerical goals of an affirmative action policy, then there could not be any legal problem with an employer selecting the appointable black candidate over the white candidate who might have better qualifications on paper.
A problem will only arise when the employer refuses to appoint a white candidate in the absence of any appointable black candidates and where the employer has no valid justification for this refusal to appoint the suitably qualified applicant.
The problem in this case was that for reasons that are unclear, no one wanted to appoint the black applicants to the post for which Barnard applied. The original interviewing panel stated that to appoint the black candidates would compromise service delivery. They left the position open, instead of appointing Barnard. The Labour Appeals Court obviously disagreed with this assessment, but it is unclear on what basis they did so. To get around the problem, it second-guessed the Police Commissioner and developed affirmative action jurisprudence that cannot be squared with the more nuanced approach taken by the Constitutional Court. DM
- Freedom of hate speech? No, thanks.
- With Mbete and Modise not protecting the Parliament, who will protect our democracy?
- SONA2015: The legal side of the Moon
- SONA: Can the EFF be prevented from questioning the president?
- De Kock: The blood is not on his hands alone
- Xenophobia and the remnants of Apartheid: The terrible twosome
- The DA’s SMSes: Judgment Day, and its likely impact
- Freedom of Speech, Limited
- Turmoil at the Hawks: A birds eye view of the legalities
- The surrealism of Key Point secrecy
- The fight against corruption: In human hands alone
- Constitution is clear: President must answer questions in Parliament
- Nkandla and the National Assembly: Little more than a sideshow
- Tough luck, Mr Hofmeyr
- Death penalty: It’s not even the beginning of a solution
- The powers of the Public Protector: What the High Court actually found
- When some rights are more equal than others
- Afriforum, jou ma: Who’s likely to win the ‘Larney’ battle?
- Spy tapes: Still no reason to drop charges
- How now, Ad Hoc Nkandla Committee?
- The Speaker's dilemma
- The President’s reply to Public Protector: Why it won’t hold water
- Pistorius and dolus eventualis: do the facts support the finding?
- Affirmative action: It’s simpler than you think
- EFF vs. the National Assembly: Where to now?
- Nkandla: Zuma’s convoluted series of Houdini moves
- Nkandla: That drinking-thinking
- Women’s month, beyond lip service
- The multiplicity of freedom
- Home Affairs vs The Constitution
- Hlaudi weather: The fog is even thicker than it looks
- Wishful thinking: If the public protector were helped to do her job
- White, Afrikaans universities – when will they truly transform?
- NPA crisis: Open warfare was just the beginning
- Censoring Malema: Tempting, perhaps, but not legally valid
- Tlakula: Stark truth, stark choice
- The law vs. religion: Let’s try that again
- Evictions: 0 out of 10, SANRAL – try again
- Gay Cabinet ministers: So what’s the big deal?
- Rights and law: The untold, human stories
- Nkandla report in court: Zuma's interest above the law
- Democracy: let the real work begin
- May the Seventh be with You
- Critical thinking: the vital sign more important to democracy than your vote
- Elections: How can we level the playing field?
- Oscar’s ‘involuntary action’: Thin ice, Mr Pistorius
- That Nkandla SMS: Why the ANC won’t have its way in court
- The unbearable lightness of being a Nkandla Report critic
- Nkandla – unlawful to the last
- The president and Nkandla: No ignorance, no bliss
- The Public Protector’s Report: Who’s got the power and what is at stake?
- Why EFF election challenge would not fly
- Pistorius and that controversial Twitter ruling: questionable at best
- Uganda: why quiet diplomacy is a devastating betrayal of gay men and lesbians on the continent
- All hail independent thought
- Pistorius on TV: The public's interest vs. the public interest
- In the age of consent, the buck stops with Number One
- DA vs. ANC: The importance of political tolerance
- Campaign fever: the ground rules
- Let’s talk about freedom of speech
- DAgang's divorce: The finer sticking points
- Challenging IPID’s appointment: Always a bridesmaid, never a McBride
- Democratic internal party processes? Hmmm, unlikely.
- Why redress measures are not racist
- News flash, folks: discrimination IS illegal
- Water is life, but the struggle for it is deadly
- Changing the Constitution: much ado about nothing
- Mandela legacy: Reconciliation – a process, not a once-off event
- To call Mandela a saint is to dishonour his memory
- Love me tender: Why ‘it’s complicated’ applies to corrupt private tender processes too
- Nkandla report - the incontrovertible facts no smokescreens can cover
- The colonial roots of conferring silk on advocates
- Structural racism: the invisible evil
- E-toll civil disobedience reveals lack of respect for democracy
- We recognise sex and gender as classifications, so why not race?
- Nkandla Report blackout: It is all about PW Botha's law
- Elections are coming: Can we have some substance, please?
- The JSC: It’s not all bad, and here’s why
- The remembrance and forgetting of things past
- Nkandla: Untangling that rather sticky web
- Employment equity: the trick is in how it’s implemented
- Justice: that elusive prize, and how to get it
- Elections: The tightrope of fairness
- Teen sex: The law can’t replace parenting
- The Hlophe conundrum, revisited
- Khayelitsha policing: among the shambles and turf wars, it’s the residents who suffer
- Media freedom is a right that benefits all
- Attempts to discredit Madonsela could backfire
- The Mdluli matter: Nxasana’s first big test
- Sparing the rod: what it really entails
- Secrecy Bill: a touch more confusion, and a glimmer of hope
- Zuma's Secrecy Bill move: The Darker Side
- Hoffman’s complaint: why it was bound to fail
- Freedom of expression – and the quest for living meaningfully
- When a joke is not a joke
- The bad news: Qwelane’s constitutional challenge might just work
- Restoring the Electoral Commission: What happens next?
- A vote of no confidence is not to be taken lightly, by majority or minority
- The murky marriage of money and politics
- FF+ vs. EFF: doomed to fail
- Spy Tapes: A clear and simple case
- Hell is other people (trolling the Internet)
- Colour me irrational
- Women’s day – just another day for men to call the shots
- Arms Deal Commission: It’s the moment to make or break
- Marikana Commission: More questions than answers
- The court of individual identity
- Pius Langa: A man who knew the meaning of change
- Dear Film and Publications Board, please review your own rules
- Animal antics, and the separation of powers doctrine
- Hypocrisy fit for a king
- Take care with those ‘insults’
- ‘Top secret’ Nkandla report: On the highway to embarrassment
- Traditional leadership: Cat can look at a king
- Equal Education: The Minister doth protest too much
- Willing buyer, willing seller works… If you have a lifetime to wait
- Polygyny: Our human rights half-job
- Trial by media? Actually, that’s impossible
- Pistorius: The horror of a broken (white) body
- Oh what a tangled legal quagmire... when first we practise an NDPP to hire?
- Breytenbach: too little fear, favour and prejudice?
- The curious case of the pastor punished for honesty
- What’s that smell? Must be the name droppings.
- KZN University: A storm in a (Zulu) teacup
- Nkandla: The details will, and should, be made public
- Great speech vs. hate speech: how it really works
- Cape Town evictions: Brutal, inhumane, and totally unlawful
- The new, tamer Secrecy Bill: Still not constitutional
- Zuma and the Guptas: the ‘symbiosis’ continues
- Discrimination is illegal. When will we learn this?
- It’s not a democracy if our children aren’t equal
- An upside-down world: What would happen if we cared about the ‘others’?
- JSC: Let’s inject some common sense, shall we?
- Rose-tinted amnesia: The struggle to ‘rebrand’ SA’s Apartheid past
- Cardinal Napier: the plot thickens
- Redefining ‘merit’: first task for a transformed JSC
- The dating race
- Putting the ‘dread’ into ‘dreadlocks’
- Liars, damn liars, and the SA government
- Constitution clear on troops in the CAR: Zuma must talk to Parliament
- SA in CAR: the questions that remain
- Why are South African soldiers dying in CAR?
- Covering up sexual abuse is a crime, Cardinal
- Nkandla: Oh, what a tangled web we weave…
- The education MEC, children's heads, and a knobkerrie
- In black and white: the truth about ‘unconstitutional’ race quotas in universities
- Losing battles: Why the FMF doesn’t stand a chance
- Democracy vs. traditional leadership: the delicate ballet
- Police brutality comes as a surprise? Really?
- Sometimes a Tweeter is just a Twit
- Lady Justice’s scales appear to be faulty
- Pistorius trial: The legal principles that will decide the case
- Oscar Pistorius case: Bail isn’t denied as easily as you think
- Public opinion: Is there really any danger of prejudice against Oscar?
- All we know is that a woman is dead
- The secret history: Unearthing the mysterious Presidential Manual
- Sexwale abuse allegations: Very much our business
- SA’s rape epidemic: The limitations of outrage
- Will the real freedom of expression please stand up?
- But what of the people of Khayelitsha?
- WWE Smackdown: Zille vs. TNA edition
- Nkandla: Everything that's wrong with the Zuma government
- Nkandla: The spinning, mincing, dicing - and the report we're not allowed to read
- Beyond all (t)reason
- Judicial transformation: South Africa's appalling non-commitment
- The criminal stupidity of criminalising teen sex
- Careful, Mr Mthembu: The re-emergence of Apartheid's 'volksvreemdes' mentality
- Unequal education: the problem with providing learning for all
- SA troops in CAR: Why we should all be worried
- Mulholland column: Ignorance squared is still ignorance
- Elective processes: Something is rotten in the kingdom of the ANC
- Outa application: Courts can't fix political processes
- Chaskalson, SACP and the Constitution: Don’t touch me on my liberalism
- Carlisle and car key confiscation: Don't go with the (traffic) flow
- Dear Contralesa, please approach your nearest healer for a diagnosis
- Simelane: You can't end what never truly began
- Playing by the rules: The balancing act of Judge Dennis Davis
- Sunlight is the best disinfectant
- Lenasia: The haunting abandonment of humanity
- Lies, damn lies, and Zuma's 'bond'
- Show us the money, Mr Zuma
- The opposition doth protest too much: Why the ANC is hellbent on crushing debate
- Note to Zuma: Try commanding respect, not demanding it
- Dear Nxesi, your fantasy is damaging South Africa’s reality
- Running the Gauntlett: Why the struggle for appointment?
- Affirmative action: a decidedly middle-class problem
- Hate crime: there is no such thing as an excuse - ever
- Mfeketo and Zuma: You scratch my back, I'll scratch yours?
- Ramaphosa: Where does corruption begin and end?
- The Zuma recordings: SA is the crayfish, corruption the boiling water
- No safety in numbers: Why a bigger opposition isn't a stronger opposition
- Specs, lies and audiotape - the hidden Zuma recordings
- The ANC on school closures: can they win?
- Thuli Madonsela: The difference between 'unpopularity' and 'misconduct'
- Democracy: it starts in Parliament
- The National Key Points Act: not just unconstitutional, but totally invalid
- Simelane and 'rational' thought
- Halt the witch-hunt, Minister
- Home is where the taxpayer's money is
- Will Malema's case stand up in court?
- South Africa's Striking Miners: A Menace to Society? Or just to the middle class?
- E-tolling judgement: Sorry for Gauteng, but it's perfectly lawful
- Silence is golden - if the speakers are criticising the State
- Malema at the SANDF: Inappropriate? Yes. Illegal? No.
- Freedom of religion: not so free after all
- Whites against Woolworths: doth they protest too much?
- From the NPA with fear, favour - and prejudice
- Marikana murder charge withdrawal: the first glimmer of sanity
- Abuse, Inc: The 'miners made us do it' murder charge
- A marriage made in hell
- Lonmin's Farlam Commission: not bad, not bad at all
- Marikana: Avoidable, unconstitutional… and entirely predictable