It will take many years to address the corrosive effects of 350 years of colonialism and Apartheid and to rectify the profoundly unfair and unequal racial distribution of resources, opportunities and privileges that persists in South Africa to this day. Constitutionally required redress measures (also sometimes wrongly called “affirmative action”) are therefore a pre-requisite for the achievement of the equality guaranteed by the Constitution – not an exception to the guarantee of equality. Constitutionally, the only question – as a recent Labour Court judgment about the use of regional demographics in employment equity plans demonstrated – is how these redress measures should be implemented.
For many middle-class South Africans, Cape Town can feel like a foreign country. When we walk into a restaurant or bar in the city centre, or attend an opening of an art exhibition or film festival, my partner will often be the only black person in the room. Although the majority of Capetonians live in sprawling Apartheid created suburbs like Gugulethu, Khayelitsha and Mitchells Plain, this majority often remains socially invisible to those who easily and uncritically rely on their Apartheid created privileges to get ahead in the world.
I am always surprised about how unaware many privileged people are about how bizarre and morally disturbing this is. Given the fact that talents and abilities are equally distributed in the population at large, the fact that the middle-class spaces in Cape Town remain dominated by those who benefited from Apartheid (or continue to benefit from it as the children of Apartheid beneficiaries or the beneficiaries of whiteness), says much about the way in which deeply entrenched patterns of racial discrimination continues to reproduce a class of privileged white South Africans.
This is not a world in which talk of equal rights trips easily off the tongue. There can be no serious talk of equality and non-discrimination in a world in which racial discrimination is structurally built into the system and skews the way in which privileges and opportunities are distributed – mostly along racial lines.
It is in this context that arguments about the supposed “reverse racism” of redress measures can sound ludicrous and embarrassingly self-serving. In Solidarity and Others v Department of Correctional Services and Others, Solidarity and Others v Department of Correctional Services and Others, lawyers for Solidarity advanced just such an argument.
Wisely, Solidarity did not challenge the constitutionality of the relevant provisions of the Employment Equity Act (EEA). Such a challenge would certainly have failed, given the Constitutional Court jurisprudence on redress measures and not even Solidarity and its lawyer, Martin Brassey, were foolish enough to pursue that line of reasoning.
Instead Solidarity, in effect, attempted to sneak a challenge to the principle of redress measures in by the back door, arguing that any redress measures aimed at addressing the effects of past injustice and breaking the cycle of racially-determined disadvantage created by Apartheid, would be unfair and would not comply with the requirements of the EEA.
In terms of this argument, we have to ignore the past 350 years of racial discrimination and dispossession. We must disregard the manner in which privilege, accumulated over 350 years, remains deeply entrenched along racial lines and are carried over from parents to children through distribution of accumulated financial wealth to children, better schooling opportunities provided to children and the inheritance of social capital associated with being white and part of the socially dominant group in society.
For obvious reasons, the Labour Court rejected this argument. Pointing out that the Constitutional Court has found that redress measures are a prerequisite for the achievement of substantive equality, the court affirmed that the Employment Equity Act (EEA) itself mandated the imposition of redress measures in the workplace.
The restitutionary measures required by the EEA do not, as Solidarity argued, amount to equal opportunity for designated groups to compete “with the prime beneficiaries of past systemic and institutionalised discrimination”. After all, no one argued in the case that a level playing field had been reached for the enjoyment of these equal opportunities. In any case “no such submission would withstand scrutiny”. Referring to Census 2011, the court quoted the following analysis to illustrate the persistent inequality in our society:
“The labour absorption rate among black African men was 40,8% compared with 75,7% among white men, while the LFPR among black African women was 28,8% compared with 62,5% among white women…In terms of the other population groups, the labour absorption rate among men in the coloured population group was 52,0% and among women in that group it was 42,3% Among the Indian/Asian population group, the absorption rate was 64,9% among men and 43,9% among women.”
In short, the judgment once again affirmed that redress measures are not discriminatory. Redress measures are not a form of reverse discrimination, instead they are a prerequisite for the achievement of equality – something which we have not yet achieved and will not achieve for some time to come. It is exactly the absence of redress measures that would be discriminatory as this would perpetuate 350 years of racial privilege and would allow the status quo to continue.
These views are uncontroversial and only the uninformed and the anti-constitutionalists hold otherwise. However, the one interesting point raised by the judgment related to the question of whether the Department of Correctional Services (DCS) could make exclusive use of national racial demographics when it set numerical employment equity targets in the Department, when the racial demographics differ sharply from province to province. On this point the Labour Court found that the DCS employment equity plan fell short.
It is important to note that this judgment only relates to an interpretation of the EEA and does not deal with redress policies and plans (such as admissions policies of Universities) not regulated by the Act. Because of the unique wording of the Act, the court found that the failure of the DCS to take cognisance of the regional racial demographics in the Western Cape – where more than 50% of the population belongs to a group which during Apartheid was designated as “coloured” – rendered its Employment Equity Policy invalid.
Section 15 of the Act (read with section 6(2)) explicitly mandates “affirmative action” measures in the employment context. These measures are defined as:
“measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer.”
Section 42 of the Act further allows both the demographic profile of the national and regional economically active population to be taken into account when measuring compliance with the employment equity provisions of the Act.
The Labour Court found that, having regard to the Codes of Good Practice promulgated in terms of the Act, both regional and national demographics must be taken into account when devising and implementing an “affirmative action” policy in the workplace. The judgment thus strikes a balance between the need to address the different effects Apartheid had on groups differently defined and treated by the Apartheid state, while not ignoring the disadvantage suffered by black people not defined as “African”:
“I stress that the fact that national demographics must factor into all employment equity plans provides for a safeguard recognising that is was the African majority in this country that were most severely impacted by the policies of Apartheid. However, that regional demographics must be also considered, asserts the right of all who comprise black persons in terms of the EEA to benefit from the restitutionary measures created by the EEA, and derived from the right to substantive equality under our Constitution.”
All black South Africans were discriminated against during Apartheid and racism still negatively affects all black South Africans. It might not affect everyone in exactly the same manner, but an Employment Equity Policy had to recognise that continuing harmful effects of past (and on-going) racial discrimination. Besides:
“The necessity of restitutionary measures is part and parcel of a healing process… [I]t was the policy of successive white minority governments in our country to ‘divide and rule’ black South Africans, a policy which was long founded in British colonial policy. The Constitution’s injunction to heal the divisions of the past cannot contemplate law or conduct which add salt to the wounds caused by the divide and rule policy of by-gone eras.”
The judgment is less of a victory for Solidarity than widely reported in the media. It affirmed the importance and legal validity of employment equity measures and also accepted that groups who used to be defined differently in terms of Apartheid race categories, still often have different opportunities because of the varying degrees of past and on-going racial discrimination. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.