"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

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4 The disappointment of Barnard (CC)

I referred (in Part 1 of this piece) to the "usual suspects" who are often found to criticise affirmative action and other aspects of transformation of our society. The Barnard (CC) judgment was roundly welcomed by another group of usual suspects on the other side of the fence, including the Black Management Forum (its rather controversial former head, Jimmy Manyi, who has never seemed really grounded to me, must now have finally flown the coop and be over the moon). But apart from its positive reception in such quarters, there is a significant number of commentators who have criticised it, and, for a significant proportion of them, the word "disappointment", apparently, best sums up their feelings. I was also disappointed in reading this judgment; not because of the outcome, but because this prominent and long-awaited case had promised so much more in the way of potential clarification of extremely important questions within the equality and affirmative action discourse. I will highlight just three aspects here, which I believe the judges of the Constitutional Court dealt with most disappointingly. These are the following:

  • the appropriate standard of review of the constitutionality of purported affirmative action measures;

  • more specific to the facts and context of this case, the court's treatment of the issue of the impact of the claimant's non-appointment on service delivery; and

  • more generally, and more in line with the theme of this piece, the court's treatment of the concept of representivity.

I will say something on each in turn.

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