|4.1 The appropriate standard of review of the constitutionality of purported affirmative action measures
Before I include discussion of the appropriate standard for the constitutional review of affirmative action programmes (as treated in Barnard (CC)), I should just mention that I will later call for the complete removal of affirmative action disputes under the EEA from our equality jurisprudence in terms of section 9 of the Bill of Rights. Accordingly, what follows has little to do with the EEA, which, as I argue ad nauseum in this piece, should bow out sooner rather than later. However, this being said, I expect that Barnard (CC) will generate some academic commentary regarding the court's treatment of the standard of review of affirmative measures, and I will also weigh in briefly in this regard.
In respect of the standard of review issue, and when considering the differences in opinion between the various judges in Barnard (CC), it might not be inaccurate to characterise this judgment as providing little more than an amplification of consternation. Some academic commentators have written, very convincingly, in criticism of Van Heerden's rationality test.5 Yet, the judges of the Constitutional Court dealt only cursorily with such criticism, if at all – notably, Moseneke ACJ, writing the majority opinion, did not refer to it at all; neither did Cameron J et al. Van der Westhuizen J refers to one of the pieces written in this regard in a footnote, without apparent approval or comment (with the terse remark that "[t]he Van Heerden test has been criticised for failing to incorporate a fairness standard").6 I believe that the academic criticism of Van Heerden's test deserves proper consideration by the courts. I will not elaborate here beyond providing what I believe to be the main points of criticism against the "rationality test" (others have written in more detail on this issue, and I will refer to such views where relevant):
A rationality standard of review, as explained by Moseneke J in Van Heerden, pays an inappropriate measure of deference to decision-makers in respect of the formulation of affirmative policies and measures. Pretorius makes the point that there is an intimate relationship between the standard of review of an affirmative action measure and the degree of justification (and therefore accountability) required of decisions which impact on constitutional rights and interests.7 I tend to agree with the author that the Van Heerden approach's measure of deference paid towards state actors involved in drafting and implementing affirmative measures is out of line with the more general standard of review set by the drafters of the Constitution, and as contained in section 36 of the Bill of Rights.8 On my reading of Van Heerden it does not provide a clear reason for this discrepancy (apart from the frequent emphasis placed, in the various judgments in this case, on the apparently "special" place and role for the equality right within our constitutional dispensation). But within the greater scheme of the Constitution the potential cost of such an ill-justified approach is just too high: "By adopting a deferential standard, courts protect the state from having to explain a decision in the first place, thereby circumventing the need to develop a judicial standard of scrutiny commensurate with the demands of the principles of openness and accountability, implicit in the s 36 norm of an open and democratic society".9 Pretorius also explains how a fairness approach leaves much broader scope for inclusive adjudicative reasoning ("since fairness review also involves the balancing of competing claims, it opens discursive avenues for a wider spectrum of relevant concerns to influence judicial deliberation"10). Malan points out that rationality review may also implicate the separation of powers when one considers the role of the courts in respect of constitutional adjudication (and their discrete oversight role over the conduct of the executive).11 Rationality review may impair the courts' role of providing justice in individual cases (Malan explains how the Labour Appeal Court's judgment in Barnard is an example of this). Accordingly, there may be a case to be made for arguing that such a rationality review may in fact be incompatible with the fundamental right of access to courts as guaranteed in section 34 of the Bill of Rights).
A second reason why Van Heerden's rejection of a role for fairness (and proportionality) appears strange in that it seems to ignore the clear text of the equality right. What makes this especially strange is the fact that Moseneke J in Van Heerden specifically emphasised that the respective sub-sections of section 9 should be read together12 (an "intra-textual" reading of the equality right). But the exposition of the rationality standard of review based on section 9(2)'s internal test for the compliance of an affirmative measure would appear to follow a different approach; it ignores the content of a significant part of this sub-section, particularly its first sentence (i.e. it fails to recognise an "inter-textual" approach). Such an approach ignores the fact that this first sentence tells us that "[e]quality includes the full and equal enjoyment of all rights and freedoms". Malan explains:
Following the basic tenets of contextual interpretation, section 9(2) must be read as a whole. It cannot be interpreted as if its first provision is not in existence. In fact, measures for remedial equality, including affirmative action adopted in terms of section 9(2), are indeed regarded as expressions of the right to equality and not exceptions thereto, because the provision (the second sentence of s9(2) follows on the first) includes into the right to equality the full and equal enjoyment of all rights and freedoms. This underscores the importance of reading section 9(2) as a whole.13
The importance of this point is, of course, that a proper reading of the first sentence of section 9(2) would seem to demand the consideration, in reviewing any affirmative measure which purports to comply with section 9(2), of the "full and equal enjoyment" of all rights and freedoms – ie it demands consideration of the impact of any such measure on those disadvantaged by it.14
I would suggest that Moseneke ACJ in Barnard (CC) himself exposed the possible inappropriateness of the rationality standard of review, in his remarks regarding the importance of the lawfulness of the implementation of affirmative measures (even though such remarks were made in the context of or with reference to rationality).15 I would suggest that the lawfulness of a policy or measure is largely moot until such time as it is implemented. The emphasis on the lawfulness of implementation (a measure must be applied to advance its legitimate purpose and nothing else, and implementation of corrective measures must be rational) would suggest that a perfectly rational measure can be abused. And the consideration of such potential abuse naturally implicates the impact of the measure on those it serves to disadvantage. If the mere rationality of the measure in terms of Van Heerden's interpretation of the internal test for compliance as found in the text of section 9(2) is truly sufficient to mark such a measure as being constitutionally compliant, then these considerations regarding its implementation must surely be irrelevant? Accordingly, the buck simply cannot stop at the point of merely measuring the rationality of the measure. After all, in the context of demographic representivity as not only the yardstick for success but also as the clearly stated legislative objective16 of affirmative measures under the EEA (which, for the first time faced and then, puzzlingly, withstood the scrutiny of the Constitutional Court in Barnard), it is submitted that it is patently clear that one finds here a system that unashamedly displays "naked preference" for one or more (but, in practice, it is invariably and by definition one) race groups in the process of differentiating between persons. Is this to serve a "legitimate governmental purpose"?17 If not, this same court warned us in the past that this is unacceptable under our Constitution.18 But one must then ask: what is the standard for the determination of the lawfulness of implementation? Moseneke ACJ says it is rationality (implementation must be for the purpose of achieving the legitimate objective of the measure and "nothing else"). But we cannot remove this determination from the context of affirmative measures, whose legitimate purpose (Van Heerden tells us, and this is confirmed in Barnard (CC)) is "remedial", "restitutionary" or "corrective". The only logical implication is that the determination of the lawfulness of the implementation of such an otherwise rational measure must be its fairness and/or the impact of such implementation on the rights of those disadvantaged by it. I would suggest that this is borne out by the words of Moseneke J in Van Heerden:
[A] measure 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.19
The reference to substantial harm on those excluded from benefits simply cannot refer merely to the lawfulness of the implementation of a measure being measured with reference to rationality; it must require interrogation of the fairness of such implementation. In fact, Pretorius, Klinck and Ngwena have highlighted the fact that the court in Van Heerden, even after pronouncing on the aptness of the rationality standard, in effect applied a form of fairness review to the case at hand.20 Cameron J et al in Barnard (CC) tell us that fairness is a foundational, constitutional value.21 As observed elsewhere, Moseneke ACJ, however, tells us that a rational measure which complies with the test in section 9(2) cannot be unfair, but his own wording is confusing (or, at best, ambiguous) and it would appear as if he is referring only to the fact that such a measure cannot be presumptively unfair in the meaning of section 9(5)). The question for me remains: can an affirmative measure that complies with the internal requirements of section 9(2) still be unfair? I would suggest that the answer is yes, as borne out by the example of the background to the litigation in Naidoo v Minister of Safety and Security:22 A member of a designated group (who is also a woman, and thus "doubly disadvantaged" by past unfair discrimination) is faced with an absolute bar to advancement in employment for the simple reason that her group constitutes a minority (and its numerical representation in the broader population disqualifies her from benefitting from a demographically-based target). She has no control over this, and is faced with a highly arbitrary (and as I've argued, irrational) ground of differentiation, on the basis of an immutable characteristic (her membership of the group). The measure would apparently qualify as rational under Van Heerden's test, as would its implementation for the purpose of advancing designated groups in the workplace. But it is grossly unfair and constitutes a grave limitation of Ms Naidoo's rights. The abuse inherent in the implementation of this measure lies not (solely) in its irrationality, but in its inequity.23
Apart from the above, there are other reasons why the Van Heerden approach might be objectionable. One of these reasons is what I view to be its inappropriate focus on and hegemonic treatment of the equality right (and, more specifically, section 9(2)). Even though section 9(2) has been characterised as "[p]erhaps the most pivotal of the transformation-orientated provisions in the Bill of Rights",24 is there a hierarchy of rights in the Bill of Rights which means that this section (or, the equality right, more generally) trumps other fundamental rights, without more?25 One must ask, what about the other specifically entrenched rights? Earlier landmark case law from this same court placed great emphasis on the role of the fundamental human dignity of all South Africans (Harksen, of course, but compare also Hoffmann v SAA:26 one might ask whether Barnard (CC)'s implied approval of the EEA's numbers game on the basis of its application of a rationality standard of review might lead to future complainants relying on being members of a "vulnerable group in society" – similar to HIV-positive persons in the words of Ngcobo J - and based on the impairment of their dignity when faced with such arbitrary and irrational demographic target-setting). Would there be merit in such a claim? Maybe not if it concerns a white male, but what about the probably more sympathetic case of an Indian female (such as in Naidoo's case)?
A final reason why I believe the Van Heerden approach is inappropriate is that it appears to seek to remove the equality right from the broader scheme of the Bill of Rights; it privileges equality over other fundamental rights and foundational values (e.g. non-racialism);27 and it ignores the scheme of the limitations clause (where rationality is just one of the broader range of relevant factors to consider in the weighing up of rights and interests).28 And too many judges (even of the Constitutional Court) have by now highlighted the importance of our constitutional project and its foundational values (including non-racialism and the promotion of human dignity), either expressly or by implication, for us to say simply that the rationality of the source of an affirmative measure (be it a provision of the EEA, or the Act's chapter III more generally, or an employment equity plan that purports to implement the provisions of the Act) should be determinative of its legality and constitutionality. We have seen too many examples of illegitimate "affirmative" measures – compare du Preez's irrational race-based scoring system for applicants;29 Naidoo's ludicrous calculations of race and gender representation to the third decimal;30 Coetzer's non-filling of essential posts in a clearly essential service;31 and Jafta J's (in Barnard (CC)) approval of job reservation "for black officers".32 If recent history has shown us anything, it is that the toxic mix of the Employment Equity Act, the principle of demographic representivity and Van Heerden's rationality test are nothing short of a weapon of mass destruction in the hands of (public service) human resource managers. Our Constitution (if not the judges of our Constitutional Court33) demands that we draw the line somewhere, and a useful place to do so is at the point where anyone – white male or member of a minority designated group – is faced with an absolute barrier to employment or advancement in employment (or any other form of access to benefits). And the reason, very clearly, must be because of the self-evident, unconstitutional unfairness of such practices. After all, when we consider that the application of affirmative action under the EEA occurs in our workplaces, would/should the right to fair labour practices in section 23 of the Bill of Rights (which is available to "everyone") not provide additional justification for the arguments that a requirement of fairness testing should be a sine qua non?
Despite these and other possible objections to the Van Heerden standard of review, and whilst no single judge in Barnard (CC) would definitively reject it, it is interesting that a few of the judges provided us with teasing indications that they might be willing to do so (by implication). Most striking is Moseneke ACJ's above-mentioned remarks regarding the requirement for the lawfulness of the implementation of a rationally designed affirmative action measure.34 Of course, this notwithstanding, Moseneke ACJ was not willing to take the leap and reverse his earlier finding on the rationality standard as expressed in Van Heerden. Cameron J, Froneman J and Majiedt AJ were more forthcoming in this regard, when they declared that "adjudicating Ms Barnard's challenge requires us to apply a less deferential standard than mere rationality".35 However, in doing so, they display what I view to be an inappropriate deference to the CC's earlier decision in Van Heerden. The judges tell us why they view the rationality standard as inappropriate in this case:
[Barnard's] complaint was that she had been unfairly discriminated against, in contravention of the [Employment Equity] 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.36
While I would suggest that these members of the court were (finally) on the right track, it is disappointing to see that they imply that the EEA imposes some standard different to that of rationality, but they then (it is submitted) do a rather shoddy job of explaining what this standard is (without really explaining how/where the Act imposes such a standard):
Alleged discrimination under the Constitution … raises its own problems. We must therefore formulate a standard specific to the Act, one that is rigorous enough to ensure that the implementation of a remedial measure is "consistent with the purpose of [the] Act" – namely, to avoid over-rigid implementation, to balance the interests of the various designated groups, and to respect the dignity of rejected applicants. For these reasons, we consider the appropriate standard to be fairness.37
In the light of the preceding discussion in this piece I would suggest that much more detailed explanation is required. These last three mentioned judges based their claim on such a "special" call for fairness sourced from the Employment Equity Act on the provisions of a section we have encountered before – section 2 (which deals with the purpose of the Act). They relied on the wording of section 2(a), and its recognition of "the importance of 'fair treatment in employment'".38 Let's leave aside the specifics of this case (and the question of whether Ms Barnard or anyone similarly placed would recognise this notion of fair treatment in its application through the numbers game). More generally, the EEA is, apart from its grand claims to "equity" and "equitable" representation, hardly a poster child for the promotion or application of fairness in its operation. Apart from its nonsensical obsession with raw statistics as a proxy for equality (which is the main theme of this piece), we have also seen that the Act not only provides such a convoluted and ambiguous "prohibition" of the use of quotas in its section 15(3) that one might be excused for questioning the (rightful) condemnation of the legality of quotas by various judges in Barnard (CC). It also displays a significant measure of ambivalence in its "prohibition" on an affirmative measure functioning as an absolute bar to the appointment or advancement of persons who are not from the designated groups (in section 15(4)).39 Where do these judges find some special standard of fairness in this Act that is not to be found in the Constitution? Or was this just a way to avoid direct rejection of the majority's approach in Van Heerden (within the paradigm of the equality right and the Bill of Rights, rather than invoking the Employment Equity Act as some "special case")? These same three judges of the court also expressed what I view to be a puzzling degree of deference to the EEA elsewhere in their judgment.40
Following Barnard (CC), we are probably no closer to a definitive answer on the appropriate constitutional standard for the review of an affirmative action measure. The majority view confirmed Van Heerden's rationality standard (albeit, as already noted, with some interesting apparent riders). Cameron J et al rejected rationality as too deferential and suggested (a rather vague and general conception of) fairness. Van der Westhuizen J rejected this fairness standard (as too vague and general) and suggested proportionality loosely based on the use of this concept under the limitations clause of the Bill of Rights. That notwithstanding, and despite the judge's consideration of the role of Ms Barnard's dignity in this case, it was held that the pursuit of (racial) representivity trumped it all – again, without proper explanation. We are, I would submit, not really any closer to determining the appropriate standard for review, and this I view to be Barnard (CC)'s single biggest failing and source for justifiable disappointment.
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