"I am not a number! I am a free man!" The employment equity act, 1998 (and other myths about the pursuit of "equality", "equity" and "dignity" in post-apartheid south africa) part 2 am louw1 summary

1 Andre M Louw. LLD (Stellenbosch). Faculty of Law, University of Stellenbosch. E-mail: alouw@sun.ac.za. The views expressed here are my own and do not reflect the views of my employer. I would like to express my sincere appreciation to my colleague, Christoph Garbers, for some enlightening discussions on some of the subject matter of this paper, which were of invaluable assistance.

2 A line from the introduction to a 1967 UK television series, The Prisoner (about a man who, after resigning from a government agency, is kidnapped from his London home and awakes in a strange village, where he is known only by the name Number Six).

3 The numbering of sections in the text and footnotes is sequential and follows on that of Part 1.

4 Andre M Louw. LLD (Stellenbosch). Faculty of Law, University of Stellenbosch. Email: alouw@sun.ac.za. The views expressed here are my own and do not reflect the views of my employer.

5 See, for example (all of the following having been referred to earlier in Part 1): McGregor 2013 TSAR; Pretorius 2013 SALJ; Pretorius 2010 SAJHR; Malan 2014 De Jure.

6 Van der Westhuizen J SAPS v Solidarity obo Barnard 2014 ZACC 23 (2 September 2014) para 160 and fn 159 (hereinafter Barnard (CC)).

7 Pretorius 2013 SALJ 37.

8 Pretorius explains: "The Constitution … commits itself to a standard of review which requires all rights limiting action to be 'reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom'. This is the standard prescribed by the Constitution a right in a particular context are justified. It is the standard that the drafters believed to be necessary to afford the fundamental character of constitutional rights its due recognition." Pretorius 2013 SALJ 38.

9 Pretorius 2013 SALJ 39. Pieterse calls s 36 (and the requirements it entails) "arguably the most significant provision enabling the fostering of a 'culture of justification'" under our Constitution – see Pieterse 2005 SAPL 163.

10 Pretorius 2013 SALJ 43.

11 "The central focus of the judicial function and primary responsibility of courts, unlike that of the legislature and the executive, are not these general collective social policies and goals, but the protection of individual (constitutional) rights … [Courts] must not primarily pursue policies deemed to advance or secure an economic, political or social situation for the benefit of all. That is the distinctive terrain of the legislature and the executive" (Malan 2014 De Jure 134-135).

12 Moseneke J declared as follows (in Minister of Finance v Van Heerden 2004 25 ILJ 1593 (CC) paras 28, 30 (hereinafter Van Heerden): "A comprehensive understanding of the Constitution's conception of equality requires a harmonious reading of the provisions of section 9 ... In other words, the provisions of section 9(1) and section 9(2) are complementary; both contribute to the constitutional goal of achieving equality to ensure 'full and equal enjoyment of all rights'. A disjunctive or oppositional reading of the two subsections would frustrate the foundational equality objective of the Constitution and its broader social justice imperatives."

13 See Malan 2014 De Jure 139.

14 Which is why Malan argues that, even if ss 9(3) and (5) were not applicable to the decision of the National Commissioner in Barnard (as Moseneke ACJ in Barnard (CC) para 51, held as the basis for rejection of the approach in Solidarity obo Barnard v SAPS 2014 2 SA 1 (SCA) (hereinafter Barnard (SCA)), and even if such a decision was to be considered solely on the basis of s 9(2), the Supreme Court of Appeal's reasoning and its conclusion would remain valid – see Malan 2014 De Jure 138-139.

15 Barnard (CC) para 39: "As a bare minimum, the principle of legality would require that the implementation of a legitimate restitution measure must be rationally related to the terms and objects of the measure. It must be applied to advance its legitimate purpose and nothing else. Ordinarily, irrational conduct in implementing a lawful project attracts unlawfulness. Therefore, implementation of corrective measures must be rational. Although these are the minimum requirements, it is not necessary to define the standard finally."

16 See, again, the wording of s 2(b) of the Employment Equity Act 55 of 1998 (the EEA), as referred to earlier.

17 President of the Republic of South Africa v Hugo 1997 6 BCLR 708 (CC) paras 24-26.

18 President of the Republic of South Africa v Hugo 1997 6 BCLR 708 (CC) paras 24-26.

19 Van Heerden para 44

20 Pretorius, Klinck and Ngwena Employment Equity Law 9-28.

21 Barnard (CC) para 98.

22 Naidoo v Minister of Safety and Security 2013 3 SA 486 (LC) (hereinafter Naidoo) as referred to earlier.

23 As Pretorius, Klinck and Ngwena, explain: "It is difficult to see how fairness considerations can be purged from the notion of substantive equality underlying the whole of section 9. The reasoning in the Naidoo case demonstrates that fairness and proportionality considerations cannot be excluded from the evaluation of affirmative action, if justice is to be done to the third Van Heerden criterion, namely that the measure must promote the achievement of substantive equality. It seems hardly contestable that unfair or unreasonably disproportional forms of affirmative action would be irreconcilable with realising the long-term ideal of equality based on the affirmation of equal worth and respect." Pretorius, Klinck and Ngwena Employment Equity Law 9-27.

24 Pieterse 2005 SAPL 162.

25 Some believe this to be the case – Partington and Van der Walt 2005 Obiter 608 declare that "Equality is the most important value in our fledgling democracy".

26 Hoffmann v SAA 2000 21 ILJ 2357 (CC).

27 In the process, I would suggest, ignoring at least one characterisation of our transformative constitutional project: "The challenge of achieving equality within this transformation project involves the eradication of systemic forms of domination and material disadvantage based on race, gender, class and other grounds of inequality. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships" (Albertyn and Goldblatt 1998 SAJHR 249). Replacing one systemic form of domination and material disadvantage with another (admittedly, probably more politically correct) such system is hardly desirable.

28 I would suggest that van der Westhuizen J's reliance on proportionality as the appropriate standard of review in Barnard (CC) – borrowing from the use of this concept in s 36 of the Constitution – might be indicative of a realisation that the rationality standard is inconsistent with the broader scheme of the Bill of Rights.

29 Du Preez v Minister of Justice and Constitutional Development 2006 27 ILJ 1811 (SE).

30 Naidoo v Minister of Safety and Security 2013 3 SA 486 (LC).

31 Coetzer v Minister of Safety and Security 2003 24 ILJ 163 (LC). Dupper, I would submit, is rather diplomatic in his assessment of the practice as exposed in this case: "The decision in Coetzer casts doubt on the lawfulness of what some studies indicate has become common practice in the public service, namely the refusal to fill positions even though qualified members of the non-favoured groups are available. If one takes into consideration the fact that the public service is experiencing an alarmingly high rate of vacancies, especially at senior management level, this judgment takes on additional significance." (Dupper 2008 SAJHR 438.)

32 Barnard (CC) para 227.

33 I refer, again, to the apparent express approval of race-based job reservation by Jafta J in Barnard (CC) para 227.

34 I include a montage of the judge's thoughts on the subject here. When reading it, please bear in mind the (rather diffident) expression of the "rationality test" as formulated in Van Heerden: "Our quest to achieve equality must occur within the discipline of our Constitution. Measures that are directed at remedying past discrimination must be formulated with due care not to invade unduly the dignity of all concerned. We must remain vigilant that remedial measures under the Constitution are not an end in themselves. They are not meant to be punitive nor retaliatory. Their ultimate goal is to urge us on towards a more equal and fair society that hopefully is non-racial, non-sexist and socially inclusive." (Van Heerden para 30); "Once the measure in question passes the test, it is neither unfair nor presumed to be unfair ... This however, does not oust the court's power to interrogate whether the measure is a legitimate restitution measure within the scope of the empowering section 9(2)" (Van Heerden para 37); and "As a bare minimum, the principle of legality would require that the implementation of a legitimate restitution measure must be rationally related to the terms and objects of the measure. It must be applied to advance its legitimate purpose and nothing else. Ordinarily, irrational conduct in implementing a lawful project attracts unlawfulness. Therefore, implementation of corrective measures must be rational. Although these are the minimum requirements, it is not necessary to define the standard finally." (Van Heerden para 39).

35 Barnard (CC) para 95.

36 Barnard (CC) para 95.

37 Barnard (CC) paras 97-98.

38 Cameron J et al in Barnard (CC) para 98 (and fn 108).

39 As for the fact that the wording of the EEA in both ss 15(3) re quotas and s 15(4) re absolute barriers to employment is so ambiguous that it probably would allow for the implementation of such measures by a designated employer, see Partington and Van der Walt 2005 Obiter 598.

40 Barnard (CC) para 89 fn 93, where they declare as follows (with reference to what was said in Van Heerden): "[Affirmative action measures] 'must be reasonably capable of attaining the desired outcome', may not be 'arbitrary, capricious or display naked preference' and 'should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened.' The Act has given additional content to this constitutional standard." [My emphasis]. In the light of what I have argued above I find the EEA to be the last place one would search for, and find, these constitutional requirements, and the judges did not explain the basis for this last aspect of their opinion.

41 See, for example, Stoman v Minister of Safety and Security 2002 23 ILJ 1020 (T); Coetzer v Minister of Safety and Security 2003 24 ILJ 163 (LC); McGregor 2003 JBL.

42 Pretorius 2013 SALJ 31.

43 See Barnard (CC) para 64.

44 See Barnard (CC) para 64 (per Moseneke ACJ); para 122 (per Cameron J et al); paras 187-189 (per van der Westhuizen J)

45 See Stoman v Minister of Safety and Security 2002 23 ILJ 1020 (T); Coetzer v Minister of Safety and Security 2003 24 ILJ 163 (LC); Fourie v Provincial Commissioner of the SA Police Service (North West Province) 2004 25 ILJ 1716 (LC); Inspector S Govender v South Police Service Unreported Case No PSSS 803-05/06; Public Servants Association obo Karriem v SA Police Service 2007 28 ILJ 158 (LC); Van Eden and SAPS 2010 31 ILJ 1286 (BCA); Munsamy v Minister of Safety and Security 2013 34 ILJ 2900 (LC); Naidoo v Minister of Safety and Security 2013 3 SA 486 (LC); Munsamy v Minister of Safety and Security 2013 34 ILJ 2900 (LC).

46 See Barnard (CC) para 227 of the judgment of Jafta J: "By not appointing Ms Barnard and reserving the post for black officers, the National Commissioner sought to achieve representivity and equity in the Police Service. This accords with its Employment Equity Plan and is consistent with the purpose of the Act. Therefore, the National Commissioner's decision cannot constitute unfair discrimination nor can it be taken to be unfair. Consequently, unfairness as a standard cannot be sourced from the Act." [My emphasis]

47 Kane-Berman 2014 http://www.politicsweb.co.za/opinion/why-south-africa-is-not-working.

48 Kane-Berman 2014 http://www.politicsweb.co.za/opinion/why-south-africa-is-not-working.

49 Even though the EEA, of course, compels designated employers in the private sector to implement its system of affirmative action, Dupper observes that there are differences when it comes to the role of merit (in this context of efficiency) between the private and public sectors: "Efficiency considerations in the private sector are largely self-enforcing, with financial incentives compelling employers to define 'merit' in a manner that advances their own interests. Private employers will therefore, as a matter of self-interest, sail quite close to merit principles despite the relatively open-ended definition of 'suitably qualified' contained in the EEA. However, because this mechanism is less salient in the public service, legislation has to step in to fill the void. In South Africa the need to balance equality with efficiency considerations finds expression in the Constitution. The Constitution states that the public service must be both 'broadly representative' and 'efficient', and the police service must discharge its responsibilities effectively." (Dupper 2008 SAJHR 437.)

50 McGregor quotes David Gleason as observing the following: "[The ANC] has made of it [affirmative action] a racial core issue inwhich white South Africans know they've been totally sidelined so far as permanent jobs in the public service are concerned. Those who've hung on have been repeatedly passed over for promotion for reasons that can only have their foundations in race … The result has been an extraordinary build-up in resentment and a near-collapse in some areas of government, notably the municipal sector where cadre deployment ... has been most often employed." (McGregor 2014 SA Merc LJ 91 (quoting Gleason Business Day); Sapa 2013 http://www.fin24.com/Economy/Cadre-deployment-contradicts-NDP-DA-20130508.

51 Woolman 2008 SALJ 11.

52 Pretorius 2013 SALJ 37.

53 Also see Dupper 2008 SAJHR 436-437.

54 Coetzer v Minister of Safety and Security 2003 24 ILJ 163 (LC). See, again, Dupper 2008 SAJHR 438.

55 See Barnard (CC) fn 211 to para 187 of van der Westhuizen J's judgment in Barnard (CC). Then read paras 187-188: "[P]ractically, temporary vacancies in certain positions may well be less damaging than in others to SAPS's ability to execute its core mandate to protect citizens. This differs from, for example, vacancies in the special explosives unit in Coetzer, which required highly trained and specialised candidates and was fundamental to SAPS' core mandate. There is nothing to suggest that the division [in Barnard] could not function effectively without filling this position."

56 Jackie Selebi, of course, was the serving National Police Commissioner who made the determination not to recommend the appointment of Ms Barnard in the matter under review in Barnard (CC), and who was later charged, convicted and jailed for corruption (although (not much later) controversially released on medical parole after serving a fraction of his sentence).

57 As observed with reference to the above-mentioned Coetzer case: "The decision in Coetzer casts doubt on the lawfulness of what some studies indicate has become common practice in the public service, namely the refusal to fill positions even though qualified members of the non-favoured groups are available. If one takes into consideration the fact that the public service is experiencing an alarmingly high rate of vacancies, especially at senior management level, this judgment takes on additional significance." (Dupper 2008 SAJHR 438).

58 Of course, this is official government policy: "Within national departments and provincial administrations, the implementation of affirmative action policies will be incorporated into individual managers' performance objectives and specifically, into the performance contracts between Directors-General and executing authorities. It is envisaged that the practice of developing performance contracts between the Director-General and the executing authority, also be extended to all managers into which affirmative action will be built as one of the criteria ... Central to the new affirmative action policy is the fact that responsibility for affirmative action is no longer the preserve of the affirmative action specialist but of every manager, supervisor and human resource practitioner who will be required to implement affirmative action plans and held responsible for these." (White Paper on Affirmative Action in the Public Service, 1998 (GN 564 in GG 18800 of 23 April 1998) (hereafter the White Paper), ch 4(v), p 17; para 3.1, p 33.

59 Pretorius 2013 SALJ 38 (with reference to Kumm 2010 Law and Ethics of Human Rights 154).

60 The White Paper ch 4(iii), p 16.

61 The White Paper para 1.10, p 23.

62 At Barnard (CC) para 189: "[C]ourts should be wary of making evaluations about service delivery – in the context of affirmative measures – from a distance. Without proper evidence or specialist institutional knowledge, it may be difficult for a court to draw conclusions about the precise impact a policy, an appointment, or even a vacancy will have on service delivery. This is the reason for the National Commissioner's wide discretionary powers, particularly in the context of affirmative measures, to appoint a candidate or to keep a post vacant. In this case, there is not enough evidence for this Court to impugn the decision on the issue of service delivery. It cannot be said that it was disproportionate for the National Commissioner to rank representivity higher than the possible impact on service delivery in this case." Is it really too much to ask a court to consider the possibility (the strong probability) that leaving a post vacant would in some way negatively impact on delivery of the service that the incumbent of such a post would have been expected to provide?

63 See, for example, the following observation: "Organisational culture, brain drain and resistance to change are some of the major challenges facing affirmative action [in the SAPS] ... It is clear that there is progress in the implementation of affirmative action and employment equity in the South African Police Service but some drastic steps need to be taken to prevent mass exodus of employees, especially those with special skills. A robust and extensive retention strategy is needed to address this mass exodus." (Montesh 2010 SACJ 77.)

64 Barnard (CC) para 54.

65 Barnard (CC) para 66.

66 Barnard (CC) para 66.

67 Barnard (CC) para 66.

68 Barnard (CC) paras 149-150.

69 Which may not be surprising, considering the experience of the transformation agenda in the public service (at least). As Wessels observes, in his analysis of the policy documents used in this context (specifically the 1995 White Paper on Transformation of the Public Service): "[T]here is confusion in the application of related concepts such as 'equality', 'employment equity', 'equal employment opportunity', 'affirmative action' and representativeness in the public service because these words are sometimes used as if they were synonyms." (Wessels 2005 Politeia 126).

70 Barnard (CC) para 186.

71 Barnard (CC) para 188.

72 Intriguingly, this same typo also turns up in the judgment of Moseneke ACJ in Barnard (CC), where he discusses the scheme of the EEA (in para 40): "Designated employers must ensure that suitably qualified employees from designated groups are equally represented in each working category of the designated employer."

73 Barnard (CC) para 110.

74 Barnard (CC) para 116-117.

75 The Supreme Court of Appeal has also indicated that representivity is not synonymous with fairness – see Gordon v Department of Health, KwaZulu-Natal 2008 6 SA 522 (SCA) para 28. Husain writes that representivity is not synonymous with transformation (but an aspect of it) – see Husain 2013 De Rebus 3.

76 Navsa JA, in Solidarity obo Barnard v SAPS 2014 2 SA 1 (SCA) para 23 (hereinafter Barnard (SCA): "The most virulent opponents of [measures to overcome historical obstacles and disadvantages and providing equal opportunities for all] will be hard put to argue against its noble purpose. Likewise, the most ardent supporters of such measures, I venture, would find it difficult to argue with any conviction that the end result [of such measures] can be obtained by the mechanical application of formulae and numerical targets."

77 See Naidoo para 209.

78 See s 15(3) of the EEA.

79 Barnard (CC) paras 180-183 (footnote references omitted).

80 Thomas Sowell would, I believe, have responded as follows to these and other examples of the failure of the judges in Barnard (CC) to use clear language and explain what they mean so that others can understand: "Whatever definition - and accompanying set of policies - one believes in, a serious discussion of racial discrimination or of racial issues in general requires that we lay our cards face up on the table and not hide behind ambiguous and shifting words that render any attempt at dialog futile and ultimately poisonous." (Sowell "Discrimination, Economics and Culture" 168).

81 Barnard (CC) para 161 (footnote references omitted).

82 Malan 2014 De Jure 125.

83 The trade union that took Ms Barnard's matter to court (and has also led the litigation in other prominent affirmative action disputes).

84 Hermann 2014 http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71639?oid=680718&sn=Detail&pid=71639.

85 Sowell 2003 http://capitalismmagazine.com/2003/04/the-grand-fraud-affirmative-action-for-blacks/.

86 As contained in s 16 of Employment Equity Amendment Act 47 of 2013.

87 As contained in the new s 42(1)(a) of the EEA.

88 Johnny Mercer and the Pied Pipers Accentuate the Positive, Capitol Records (© 1945).

89 The Oxford dictionary defines "transformation" as "a marked change in form, nature, or appearance".

90 As Dupper notes, some of the burning questions regarding affirmative action (although not necessarily the same questions I have tried to address here) raise "important questions about the society we wish to become, and it matters enormously which choices are made" – see Dupper 2008 SAJHR 443.

91 Some of the issues touched on in this piece are placed more clearly in context when one considers the analysis by Roger Southall regarding the development of the ruling party's National Democratic Revolution (or NDR). He explains (writing in 2008, prior to the start of the Zuma era): "[C]apture of the state and 'internal decolonisation' [by an ANC coming into power in a post-apartheid South Africa] would require, both in terms of social justice and the needs of the economy, the rapid growth of the black middle class – and indeed, the expansion of a class of black capitalists. After all, democratisation could not stop with the state: it also demanded popular control of the 'commanding heights of the economy'. It was not a huge step for this to be translated by influential forces within the party after 1994 into a call for 'demographic representivity', or for the 'blackening' of the corporate sector, a demand to which large scale capital was happy to accede (albeit within limits, and over time). In terms of the NDR, a black capitalist class is always suspect. Because its rise is dependent in part upon co-operation with established capital and upon opportunities provided by the state, it is likely to resort to corruption and to develop into a 'parasitic bureaucratic bourgeoisie'. To counter this, the NDR must cleave to the disciplines of 'patriotism'; that is, to remember its social obligations to the impoverished community from which it has come and remain guided by the ANC. However, while the notion of a 'patriotic bourgeoisie' has always sat uneasily with Marxian theories of class exploitation, its effective dilution since 1994 into the demand for 'representivity' has allowed for the upward mobility of blacks as individuals within the corporate sector to be presented as commensurate with the furtherance of the NDR. While the ANC's partners, the Congress of South African Trade Unions (COSATU) and the SACP may cling to more radical, activist interpretations of the NDR, the ANC leadership under Mbeki was to become increasingly bold in asserting that the ANC has never been a socialist organisation, and by implication, that the blackening of capitalism through BEE will be the revolution's end point. However, the problem facing an emergent black capitalist class was its lack of capital and capitalist expertise. The solutions were essentially twofold. First, from the moment it moved into office, the ANC viewed its control over the civil service and parastatals (which accounted for around 15 per cent of GDP) as the instrument for extending its control over 'the commanding heights of the economy'. This included the strategy of transferring state-owned enterprises on discounted terms to blacks via privatisation. In the event, this did not prove to be particularly successful simply because the amounts of capital required for the purchase of all but 'non-core' assets were too large for aspirant black capitalists to raise. In practice, therefore, the state sector served as the training ground in corporate management, knowledge and the expertise required by aspirant black capitalists for launching themselves into the private sector. Second, the ANC's demand for 'representivity' drew a response from large scale capital that was simultaneously creative and defensive. On the one hand, conglomerates proved responsive to the ANC's 'deployment' of influential senior personnel to the corporate sector, recognising that whilst they had the financial capital to fund BEE, they also needed the 'political capital' that only ANC loyalists could provide. On the other, when from around 2000, the ANC's BEE strategy became more assertive, large capital responded by pre-emptively negotiating 'transformation charters' which established targets for black share ownership, management, employment, and skills training by 2014. Today, most individual industrial sector charters are in the process of being subordinated to a generic code introduced by the Broad Based Black Economic Empowerment Act of 2003. This may result in a change in the face which corporates present over time. However, while this will be welcomed by the ANC, a possible accompaniment may be a weakening of the commitment of the black business class to the party as a force for transformation in favour of its reduction to a vehicle for promoting their material advance. It is clear that the NDR prioritizes control of the state as the essential instrument for transformation. However, in the context of South Africa's new democracy, this has posed the awkward necessities of funding the party and thrust it into a maw of controversy." (Southall 2008 Rev Afr Polit Econ 284-286.)

92 American economics professor, Thomas Sowell (who has done more empirical research on this subject than I have), explains this well in this context: "Many people believe that differences in life chances or differences in socioeconomic results are unusual, suspicious, and probably indicative of biased or malign social processes that operate to the detriment of particular racial and other groups. While there have certainly been numerous examples of discrimination - in the traditional sense of applying different rules or standards to different groups - in the United States and in other countries around the world, that is very different from claiming the converse, that group differences in prospects or outcomes must derive from this source. Intergroup differences have been the rule, not the exception, in countries around the world and throughout centuries of history … It would be no feat to fill a book with statistical disparities that have nothing to do with discrimination. What would be a real feat would be to get people to realize that correlation is not causation - especially when the numbers fit their preconceptions ... Some statistical disparities are of course caused by discrimination, just as some deaths are caused by cancer. But one cannot infer discrimination from statistics any more than one can infer cancer whenever someone dies. The absence of corroborating evidence of discrimination has forced some into claiming that the discrimination has been so 'subtle,' 'covert,' or 'unconscious' as to leave no tangible evidence. But this method of arguing - where both the presence and the absence of empirical evidence prove the same thing - would prove anything about anything, anywhere and any time." Sowell "Discrimination, Economics and Culture" 169-170.

93 Especially seeing that, well, we as a fraternity must, of course, also be demographically representative. Former Justice Minister Jeff Radebe's answer to a question in Parliament on the then Legal Practice Bill (18 October 2011): "The legal profession is still not representative of the demographics of South Africa and entry into the profession is, in many instances, determined by outdated, unnecessary, and overly restrictive prescripts. Access to legal services, especially by the poor, is limited ... It might be said that the Bill democratises the regulatory structures which, in turn, will pave the way in order to take the transformation agenda to its logical conclusion." (Radebe 2011 http://www.politicsweb.co.za/news-and-analysis/legal-profession-must-be-demographically-represent.)

94 Compare a university admissions affirmative action policy in India, which was implemented expressly as a temporary measure in 1949 and is still in force today – see Sowell Thomas Sowell Reader 288-289.

95 As I write this, there are continuous reports in the media about government's drive for transformation of the South African economy towards demographic representivity. The deputy-president, Cyril Ramaphosa, was quoted following a speech at the annual conference of the Association of Black Securities and Investment Professionals: "Government needed to work towards radical economic transformation and the economy needed to reflect the country's demography. 'Broad-based black economic development, skills development, supplier development and preferential procurement are parts of the package of measures we've employed over the past two decades to achieve this objective'." (Sapa 2014 http://www.timeslive.co.za/politics/2014/09/25/transformation-must-continue-ramaphosa.)

96 Which leads to some commentators seemingly losing sight of the constitutional framework for affirmative action in the face of the Act's obsession with the numbers: "It is apparent from the case law that some degree of consideration, planning and rationality must precede the implementation of affirmative action measures. It is not sufficient for an employer to merely assert that a measure amounts to an affirmative action measure. By the same token it is not necessary that affirmative action measures be part of an employment equity plan that complies with the provisions of the EEA. The fact that a measure is: (a) intended to contribute to the objective of equitable representation; and (b) capable of doing so; should be sufficient." (Partington and Van der Walt 2005 Obiter 602).

97 Per Cameron J, Froneman J and Majiedt AJ in Barnard (CC) para 89, note 93.

98 I have not, in this piece, paid any real attention to the issue of the implications of the EEA's numbers game for non-racialism (and the fact that the EEA has been criticised for its re-introduction/continuation of racial classification). While the point has been made that it would probably be unrealistic and disingenuous to ignore the reality of South African society as still being extremely race-conscious (see, for example, Dupper 2008 SAJHR, and the authorities referred to there) it bears mentioning that the nature (and effects) of the ANC's pursuit of the ideology of demographic representivity is out of kilter with its own guidelines for the negotiation and eventual creation of a South African Constitution – compare the following, as expressed by a then member of the ANC's legal and constitutional committee in 1989: "[T]he [Constitutional Guidelines for a Democratic South Africa, published by the African National Congress in March 1988] seek to protect the individual human rights of all South Africans. They also seek to protect the individual's religion, language, and culture - all essentially 'group' rights - but without the poisonous sting of racism or exclusive ethnicity." (Masemola 1989-1990 Colum Hum Rts L Rev 53.) The scenario of the Naidoo case (which I referred to extensively earlier) again provides a poignant counterpoint here.

99 A June 2013 posting on the FW de Klerk Foundation's website mentions that South African Airways has, reportedly, scrapped an absolute bar on the recruitment of white male cadet pilots. A spokesperson for SAA stated that the Cadet Programme was advertised "as an initiative to bring the demographics of SAA's pilots in line with the demographics of South Africa". It explains: "SAA has now stated that the final 40 candidates for the 2013 intake fall under the category of previously disadvantaged individuals as defined in the Employment Equity Act - and that not a single white man has been selected for the cadet programme. The group reportedly consists of 10 black men, four black women, nine coloured men, one coloured woman, seven Indian men, two Indian women and seven white women. In essence, it would appear that the ban on the employment of white male trainee pilots has not been lifted in practice. According to SAA spokesman Tlali Tlali, 'it is important to note this in the context of the current reality and measures that need to be taken'. Tlali further stated that 'the cadet programme is the airline's effort to transform not only its own but also the country's flight deck community, which is nowhere close to reflecting the country's demographics'." From a posting for the FW de Klerk Foundation authored by Jacques du Preez (on file with the author).

100 President of the Republic of South Africa v Hugo 1997 6 BCLR 708 (CC) para 41.

101 See SAPS v Solidarity obo Barnard 2013 1 BLLR 1 (LAC) (hereinafter Barnard (LAC)) para 20, where the learned judge declared: "Although extensive argument was also advanced by the parties in relation to affirmative action, the matter has, in my view, little to do with the legitimacy of affirmative action, but more with the implementation of such a programme in circumstances where persons from non-designated groups are adversely affected thereby."

102 In Barnard (LAC) para 24 the judge refers to the fact that "our Constitution enshrines the right to equitable treatment yet sanctions inequitable conduct" (in the context of affirmative action).

103 McGregor 2014 SA Merc LJ 88.

104 Barnard (CC) para 98.

105 Sachs J, in Van Heerden para 139.

106 Of course, this would appear to be anathema to the approach proposed by the Constitutional Court – compare the unambiguous stance displayed by Mokgoro J in Van Heerden para 87: "Section 9(2) is a unique constitutional provision which has been enacted to respond decisively to the particular history of inequality and the impact of that history on our society. It makes clear that restitutionary measures are part of the scheme for the realisation of substantive equality. A measure which is part of the framework for the advancement of equality cannot ever be said to discriminate unfairly. That being the case, once a measure can properly be said to satisfy the internal test in section 9(2) and fall within the ambit of the section, the scrutiny that other measures are subjected to in terms of section 9(3) does not apply. Once the state successfully demonstrates that a measure falls within section 9(2), that measure is constitutionally compliant without any further justification. That being the case, section 9(2) must be used only in appropriate cases and with great circumspection. The vision of substantive equality and the need for transformation cannot be underestimated. For that reason section 9(2), as an instrument for transformation and the creation of a truly equal society, is powerful and unapologetic." Pretorius 2013 SALJ 42, however, provides a powerful argument against Mokgoro J's views: "Mokgoro J argued that the main focus in s 9(2) of the Constitution is on the group advanced and the mechanism used to advance it ... Therefore, measures enacted in terms of s 9(2) ought to be assessed from the perspective of 'the goal intended to be advanced'. Fairness review would be out of place, because it would mean that undue attention is paid to those disadvantaged by the measure … This reasoning is perfectly aligned with a rationality paradigm. As the constitutional theorist Alexy pointed out in his criticism of the early equality jurisprudence of the German Federal Constitutional Court, rationality review is not about comparison as such and therefore does not provide a suitable normative yardstick to measure the legitimacy of differential treatment (Robert Alexy A Theory of Constitutional Rights (trans J Rivers) (2004) 265–6). If the contextual focus of judicial review is limited - as Mokgoro J in Van Heerden insists that it should be - to whether a measure is logically related to a given remedial goal, its differential impact as such is not addressed ... As argued elsewhere, this reduction of equality to rationality restricts the normative reach of the notion of substantive equality, since it is effectively deprived of the comparative contextual setting necessary to be able to function as an inclusive fairness-based standard for the assessment, evaluation and integration of competing equality claims."

107 Surely this is apparent from the words of Cameron J, Froneman J and Majiedt AJ, in their concurring judgment in Barnard (CC) para 95: "[A]djudicating Ms Barnard's challenge requires us to apply a less deferential standard than mere rationality. Her complaint was that she had been unfairly discriminated against, in contravention of the Act. In our view, that Act imposes a standard different from, and additional to, rationality. The important constitutional values that can be in tension when a decision-maker implements remedial measures require a court to examine this implementation with a more exacting level of scrutiny." [My emphasis]

108 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA). S 14(1) of the Act provides as follows: ''It is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination or the members of such groups or categories of persons."

109 Du Preez v Minister of Justice and Constitutional Development 2006 27 ILJ 1811 (SE).

110 After all, van der Westhuizen J in Barnard (CC) expressly referred to this judgment after declaring that "[i]f a measure is used to obliterate a person's chances at progressing in her chosen career, it would not pass constitutional muster" - Barnard (CC) para 180 (and fn 197).

111 Du Preez v Minister of Justice and Constitutional Development 2006 27 ILJ 1811 (SE) para 18.

112 See Barnard (CC) para 32.

113 See, for example, Van Heerden paras 27, 44 of Moseneke J's judgment; also see Barnard (CC) para 30 (per Moseneke ACJ); para 101 (per Cameron J et al); paras 143, 146 (per van der Westhuizen J).

114 Van Heerden para 23 (per Moseneke J).

115 Or "transformative tension", as it was called by Cameron J, Froneman J and Majiedt AJ in Barnard (CC) para 77.

116 Barnard (CC) para 93.

117 Wiechers Rapport.

118 Wiechers Rapport.

119 Malan 2014 De Jure 134-135.

120 Sachs J in Barkhuizen v Napier 2007 5 SA 323 (CC) para 149.

121 See Van der Westhuizen J in Barnard (CC) para 180.

122 Barnard (CC) para 180 (and see the authorities referred to there).

123 Malan 2010 TSAR 435.

124 Per Cameron J, Froneman J and Majiedt AJ in Barnard (CC) para 89, note 93.

125 Minister of Home Affairs v Fourie 2006 1 SA 524 (CC).

126 Minister of Home Affairs v Fourie 2006 1 SA 524 (CC) para 94 (as quoted in Malan 2010 TSAR 437-438).

127 Pretorius has highlighted that Van Heerden's rationality test is insufficiently rigorous to provide the standard for the testing of affirmative action measures under the equality right: "[R]ationality as such is ill-suited to fulfil the basic function of an equality actualising norm, since it lacks the normative content to be able to determine whether a differentiating measure actually promotes the overall purpose of s 9, which the court in Van Heerden described as the realisation of 'a non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity'. This is so because the rationality inquiry does not interrogate the comparative fairness of the impact of differentiating measures on the affected parties. A focus on impact has however been singled out by the Court itself as the hallmark of the promotion of substantive equality." In doing so, the author observes that other Constitutional Court judgments have required more in this context than this same court did in Van Heerden – see Pretorius 2010 SAJHR 565 (and the cases referred to there).

128 Barnard (CC) para 227.

129 Barnard (CC) para 54. And vice versa – the reservation of posts amounts to the application of a quota: "Some defenders of strong-preference affirmative action are clearly pursuing only goals and not quotas. However, other strong-preference affirmative action policies will most plausibly be understood as pursuing quotas rather than mere goals. The claim not to be defending quotas is least plausible when it emanates from defenders of set-asides. This is because a set-aside is a kind of quota. When one sets aside a specific number of positions or places for 'blacks' then, assuming these positions are all filled, one has met a quota. That quota may be only part of a broader goal if other forms of affirmative action are also employed. Nevertheless, the places set aside are reserved for 'blacks'. When some minimum number of places is reserved one has a quota." (Benatar 2008 SALJ 280.)

130 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 1 SA 256 (CC).

131 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 1 SA 256 (CC) paras 73-74.

132 Some believe that the EEA's affirmative action provisions have this characteristic: "[C]aution should be taken against perceiving affirmative action as an inseverable aspect of equality. Affirmative action is a temporary measure that will outlive its purpose whereas equality is a value without a shelf-life. Affirmative action is a measure that will be cast from our jurisprudence upon the 'normalisation of our society' or when 'a state of generalised equality' is achieved." (Partington and Van der Walt 2005 Obiter 596.)

133 Especially not in the light of the use of demographic representivity in this context. McGregor, writing on the question of when affirmative action will end, reminds us that "national demographics are not consistent and therefore targets may vary with time. It is submitted that it is not realistic to expect an end to affirmative action on this basis" - McGregor 2014 SA Merc LJ 75.

134 Sowell Thomas Sowell Reader 292.

135 I believe that, unfortunately, there is some truth in David Benatar's following observation regarding the apparent lack of a need for a rigorous defence of affirmative action (which is surely the case under Van Heerden's rationality test): "In the legal sphere, for example, affirmative action has been protected from questioning by a constitutional provision in the equality section of the Bill of Rights, which explicitly permits 'legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination'. Instead of allowing the courts to determine whether affirmative action laws and policies are compatible in principle with the right to equality, any judicial questioning of the matter is forestalled." (Benatar 2008 SALJ 275.) Pretorius et al also observe the following: "[The authorisation in section 9(2) of the equality right in the Bill of Rights] of the use of affirmative action for the purpose of protection and advancement of those disadvantaged by unfair discrimination does not preclude the possibility that affirmative action may be taken for other purposes. Should, however, affirmative action be taken for objectives other than that specified by section 9(2), such measures will be judged according to a stricter standard of review than are remedial measures. The onus will be on an employer to establish that a particular non-remedial objective is a compelling enough operational or institutional objective to justify preferential treatment." Pretorius, Klinck and Ngwena Employment Equity Law 9-25. In a footnote to this section, the authors explain how "racial or gender balancing" (the objective of achieving representivity for its own sake) has consistently been rejected in the United States of America as a legitimate affirmative action goal.

136 Maybe we should also stop talking about "affirmative action" under the Act (even though the Act, of course, uses this terminology) in the light of the fact that this term is traditionally used within the equality paradigm. I would suggest that the term "positive action policy" might be an alternative (even though this should not be read to imply the "positivity" of the potential outcomes of such policies aimed at pursuing demographic representivity). Nolan uses this term in the context of gender equality (and, interestingly, includes the use of quotas in this concept with no apparent qualms about their constitutionality) – see Nolan 2004 SAPL 382.

137 Pretorius 2013 SALJ 36, observes (in his discussion of the proper standard for the constitutional review of affirmative action measures) that the Labour Court judgment in Barnard only referred to Van Heerden in passing, in two footnotes. He finds this surprising and inconsistent with the importance of the constitutional equality jurisprudence for cases under the EEA: "Van Heerden is cited as authority for the proposition that 'the need for representivity must be weighed up against the affected individual's rights to equality and a fair decision made' …This citation sits uncomfortably with the whole tenor of the Constitutional Court's … reasoning regarding the standard of review." I would suggest that, in the light of the glaring inconsistency between the EEA and the equality right in the Bill of Rights, courts adjudicating future affirmative action cases under the Act should pay even less attention to Van Heerden (and now, Barnard (CC), and other equality cases).

138 The following words, used to describe the relevant employment equity plan at issue in the case of Naidoo, do well to also describe the EEA (as the legislature's chosen instrument to promote the equality right in our workplaces) and the ways in which its provisions have been implemented, especially in public sector employment: "While posing as a measure that is constitutionally compliant, it in fact discriminates unfairly and unlawfully. It may not have been the intended result to create barriers and patterns of disadvantage, but it does in practice have such effect. These effects undermine equal opportunity and the pursuit of substantive equality. They undermine too the constitutional objective of creating a non-racial and non-sexist egalitarian society." Naidoo paras 189-190.

139 Which Malan 2010 TSAR 436 describes as follows: "Majoritarian democracy gives full sway to the will and preferences of the majority, regardless of the impact that these might have on minorities. Seeing the views of the majority and those of the whole of the national population as one and the same thing, majoritarian democracy translates the will of the majority into official state policy, regardless of its harmful consequences for the minorities. Majoritarian democracy is premised on the crude utilitarian principle that state policy should be based on what behoves the strongest – on what pleases the majority – irrespective of how this might impact on the minority, who might suffer pain from that what pleases the majority, even though it does not concern any specific interest of the majority. Utilitarian democracy allows for the free reign of the strongest – the majority – in favour of whom all political power is monopolised. Conversely, it leaves the minority – delivered to the will of the majority – with no power at all, even in relation to questions that are of core interest to the minorities and of no interest to the majority. The majority is therefore the only sector of the demos with meaningful political and governing power – kratos. Majoritarian democracy premised on the utilitarian principle is at best democratic only in part, namely to the extent that the majority can govern their own interest, but it is glaringly undemocratic in that it leaves the minorities devoid of any kratos, and thus vulnerable to domination by the majority."

140 As Martin Brassey observed in his critical piece on the Act (which was, at the time, not yet in force): "A political challenge to the proposed Employment Equity Act seems doomed to fail. It provides a benefit for the majority at the expense of a minority and such initiatives always make good politics. Whatever hope exists of defeating the Act, therefore, lies in a challenge under the Constitution." (Brassey 1998 ILJ 1361.) Farrell, in his brief analysis of the legitimacy of the EEA in the light of South Africa's international obligations under the International Covenant on Civil and Political Rights (1966) (or ICCPR) views the role of black political dominance in South Africa as "problematic": "The ICCPR is a document intended to protect individual rights from abuse by one's own government. Any attempt by a state to favour the majority of the population when that majority is politically dominant might be viewed as contrary to the Covenant. The potential for discrimination against the white minority by the [South African] government strengthens this argument. One of the recognised limitations on affirmative action is that it may not lead to discrimination. A government that enacts affirmative action legislation that is detrimental to a non-dominant minority is clearly suspect, and such an action could certainly be viewed as actually or potentially discriminatory. This concern is heightened by an attitude that whites simply cannot be the subjects of discrimination. This is evidenced by the [White Paper on Transformation of the Public Service, 1998's] definition of 'unfair discrimination' as 'measures, attitudes and behaviours that obstruct the enjoyment of equal rights and opportunities in employment for black people, women and people with disabilities'." The author answers his own concerns by pointing out that the EEA is all about economic as opposed to political inequality, and that the use of preferential measures to advance, economically, members of a politically dominant group are justified. While he finds that "limited preferential treatment" through the means of the EEA probably does not violate the provisions of the ICCPR, he does, however, conclude that "[o]f course, it is imperative, particularly in this situation, that preferential treatment be used temporarily and that great care is taken to avoid impermissible discrimination against South Africa's white minority". (Farrell 2002 TCLR 221-223.)

141 Myburgh 2014 http://www.politicsweb.co.za/news-and-analysis/race-quotas-the-terrible-power-of-demographic-repr.

142 Malan explains how (demographic) representivity may have a legitimate role in this context. He believes that this is the case where the state deals with certain interests that might be regarded as equal stake common interests of the entire national population, which interests "are not peculiar to a particular community (culturally, linguistically, religiously etc), in contradistinction with the rest, which have a discernibly higher stake than any other community". He explains: "[T]he application of the representivity principle in the case of equal stake common interests also reflects a communitarian perspective of society. This is so because it recognises communities (by requiring representation for them) not only in the case where specific community interests are being dealt with, but also in cases where interests are the same and do not run along community lines. From a communitarian point of view the principle of representivity can therefore be regarded as commendable when it is applied to equal stake common interests." (Malan 2010 TSAR 438-439).

143 Steward 2012 http://www.politicsweb.co.za/opinion/the-arithmetic-of-racial-domination.

144 The author explained notion of a culture of justification as follows: "[A] culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force of its command. The new order must be a community built on persuasion, not coercion." (Mureinik 1994 SAJHR 32.) Also see Pieterse 2005 SAPL 161: "[One should not] deny the potentially destructive impact of public power on the achievement of substantive equality, social justice or private law justice, nor to say that societal transformation is possible without rethinking the manner in which public power is kept in check. Given the virtually untested (and uncontested) manner in which the organs of the apartheid state could encroach upon even the most basic freedoms of the majority of the population, it is necessary to ensure that every exercise of public power may properly be scrutinised for compliance with human rights standards."

145 Pretorius 2013 SALJ 40 (with reference to Kumm 2010 Law and Ethics of Human Rights 171).

146 One should at least question whether the new, democratic South Africa's treatment of minorities through "recognition without empowerment" might be in a process of flux (partly through the application of the ideology of demographic representivity) towards the disempowerment of the white minority and minority "designated" groups, and whether the following observations of Murray and Simeon, expressed as recently as 2007, are still or will remain accurate for long if such processes remain untested by our judiciary (and specifically by the Constitutional Court): "There is no suggestion that the African majority is riven by internal linguistic and ethnic differences. There is no suggestion of systematic exclusion or repression of minorities by the majority. The debates we have noted are no greater than one might expect in any other society as diverse as South Africa. Thus, the predictions … that, once apartheid rule was ended, new ethnic conflicts would polarize the country have proven unfounded." (Murray and Simeon 2007 ICON 726.)

147 Toyota South Africa Motors (Pty) Ltd v Radebe 2000 3 BLLR 243 (LAC) para 35.

148 Van Heerden para 87.

149 See, for example, Moseneke ACJ in Barnard (CC) para 4: "We are seized with a dispute over pressing constitutional concerns of equality and non-discrimination – matters of considerable personal and public importance. Moreover, the divergent reasoning and outcomes of the two appellate courts impel us to resolve the dispute." Also see Cameron J, Froneman J and Majiedt AJ in para 75: "This is the first case before this Court that deals with the standard to be applied in assessing the lawfulness of the individual implementation of constitutionally compliant restitutionary measures. It is important to give guidance on this difficult issue."

150 Wiechers Rapport.

151 See Davis 2010 SAJHR.

152 Malan 2010 TSAR 432 points to this issue, as highlighted by an esteemed former South African jurist: "On 18 August 2009 [in a public lecture at the University of the Witwatersrand] a former justice of the constitutional court, [Johann] Kriegler, noted that representivity has become the overriding principle applied in the selection of judges by the Judicial Service Commission, in spite of the fact that it flies in the face of the constitution. Kriegler observed: 'But, from where I look at the judiciary today, and the way I have been watching the Judicial Service Commission, this ethnic/gender balance in section 174 of the Constitution has become the be-all and the end-all when the JSC makes its selections. And if it is not the be-all and end-all, at the very least it has been elevated to the overriding fundamental requirement.'"

153 Malan explains: "Speaking in the national assembly [Minister] De Lange explained that transformation of the judiciary comprised two elements: first, the realisation of the objective equitable representation of blacks and women, described as 'diversity, personnel or symbolism transformation'; and, second, transformation relating to the intellectual or ideological approach adopted by judges and magistrates, which he referred to as 'intellectual content or substantive transformation'. Transformation therefore requires that the profile of the national population be reflected in the composition of the judiciary and, on the other hand, that judges must have particular convictions, namely to think in a particular way." (Malan 2010 TSAR 432.)

154 Wessels 2008 Politeia.

155 Wessels 2008 Politeia 23.

156 Wessels 2008 Politeia 23.

157 Which, of course, would not necessarily be a bad thing: "[I]n South Africa's current dispensation, there is a need for judicial transformation to embrace changes in judicial attitudes. Judges must embrace and enforce the principles of a fundamentally new legal order. Furthermore, the transformative nature of South Africa's Constitution means that judges can no longer cast themselves as defenders of the status quo. The judiciary must instead facilitate the creation of the new society that the Constitution envisages." (Wesson and Du Plessis 2008 SAJHR.) Of course, much of the legitimacy of this view depends on the meaning placed on "transformation" under our Constitution, and the hegemony of the governmental agenda of the pursuit of demographic representation, it is submitted, might cast such transformative ambitions in respect of what is expected in terms of judicial attitudes in a different (and less flattering) light.

158 S 197(1) of the Constitution.

159 S 165(2) of the Constitution.

160 Pieterse 2005 SAPL 166.

161 Pieterse 2005 SAPL 166.

162 Although doing something along these lines may justifiably be viewed as promoting "perverse race rivalry", and "inter-group contestation, conflict and protests amongst the designated groups" – see Shaik AJ in Naidoo paras 177, 188.

163 See Barnard (CC) para 172 (per van der Westhuizen J).

164 See De Vos 2012 SALJ.

165 See Benatar 2008 SALJ.

166 See Dupper 2008 SAJHR.

167 At the time of writing, there are some encouraging signs in this regard. Acting chair of the Public Service Commission, Richard Sizani, in addressing a Developmental State Conference in Pretoria, on 11 November 2014, suggested that the time has come for government to reconsider the application of affirmative action (and cadre deployment) in the public service – see Mbanjwa 2014 http://www.citypress.co.za/news/isnt-time-rethink-sas-transformation-policies/.

Directory: journals -> PER -> 2015
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