What for me emerges quite clearly when one considers the subject matter of this piece is that we are dealing here with two quite distinct and probably irreconcilable concepts. The first is that of (substantive) equality, which is sanctioned, and, indeed, demanded by our Constitution. Our understanding of the role of affirmative action in this context is the redressing of disadvantage caused by past unfair discrimination through the means of remedial and restitutionary measures sanctioned under the Bill of Rights, in order to promote the achievement of the full and equal enjoyment of those hard-fought fundamental rights for all who share this beautiful country. The second is that of (demographic) representivity, which finds its only purported legitimacy in the transformational nature and objectives of our Constitution. If 'transformation' means to change things (possibly, cosmetically),89 then yes, government's virulent pursuit of representivity will achieve this (if it has not done so yet). Whether this last is what the drafters of our Constitution had in mind (or whether the "transformed' South African society we are in the process of creating is the one envisaged by them90 – although we should not lose sight of the long history of the ANC's National Democratic Revolution91) is a very different question. One thing that does stand out, however, is that representivity has virtually nothing to do with equality (just as it, probably, has nothing to do with unfair discrimination92). I suggest that it is time for our politicians and legal textbooks, and even the judges of our highest court, to stop implying that it does.
I should like to call on the legal fraternity to take a more active interest in these developments, which affect us all93 (and will doubtless affect many of our children – possibly a whole generation, at least94 - for years to come). If there is something that, doubtless, all of us trained in the law inherently abhor, it is injustice. There is one thing, though, that I think we all abhor even more: a clear injustice clothed as justice. The apartheid state, after all, plodded along quite successfully for many years within a system of parliamentary sovereignty and dodgy but ostensibly legitimate laws. Apart from the issue of affirmative action, I did not really in the preceding discussion touch on some of the most controversial aspects of our current government's drive for demographic representivity and for the race-based transformation of society, public institutions and the economy (including the much-maligned broad-based black economic empowerment policies).95 I refrained from doing so in the firm conviction that the redress of past disadvantage, especially in a society so scarred by systemic unfair discrimination on the basis of race and other arbitrary grounds, is a valid (and admirable) constitutional objective on its own. Leaving aside the practical and other objections regarding implementation, policies relating to, for example, the redistribution of wealth, land reform and the like are all valid manifestations of this (which is why I think no thinking South African can seriously and validly ignore the political platform of Mr. Malema's Economic Freedom Fighters). What is more worrying, however, is that when it comes to the application of affirmative action in employment (and in other, even more problematic contexts, such as sport), the means chosen significantly impacts on the rights of those specifically excluded by such measures (the "previously advantaged"). Even this would not be overly troublesome, though, if it occurred under the flag of redress as a valid constitutional objective. In the matter of the affirmative action scheme of the Employment Equity Act, it does so by invoking that other very valid constitutional objective – the achievement of substantive equality – but it does so really only in name.96
We have seen how the Act by definition elevates demographic statistics to the status of an ultimate objective when it comes to affirmative action. Instead of identifying the redress of past disadvantage as a separate and independent constitutional objective, the Constitutional Court has told us repeatedly, and quite adamantly (in its interpretation of the text of the Bill of Rights), that affirmative action resorts squarely under the equality right; it is not an exception to the guarantee of equal protection for all, but part and parcel of the pursuit of substantive equality. This complicates matters somewhat when one considers the impact of some forms of affirmative action measures (notably those that are in line only with the stated purpose of the EEA) on those excluded from its benefits. While some judges of the CC reminded us in Barnard that "[f]requently the goals of transformation are more important" than the impairment of the dignity of these souls,97 this seems to ignore the fact that our Constitution also pursues very important goals other than transformation. The promotion of dignity and equality (also in the sense of equal worth for all), non-racialism and non-sexism are all expressly written into our Constitution and comprise equally important fundamental values which underlie it.98
If the legislature intends to create a stratification of classes of citizens in the interests of redressing the disadvantage of those unfairly discriminated against in the past, they may do so by all means, but do so without subterfuge and with the realisation that ultimately this will promote a different (although possibly still valid) constitutional objective. [It will also, as mentioned, most probably create a quite different society to that envisioned by the drafters of our Constitution. We will, after all, very soon be able to fly the friendly skies assured that the ladies and gents in the cockpit are "fully transformed"99 - I think George Orwell would have loved this!] But do not clothe measures that directly and intentionally disadvantage certain classes or categories of persons (and may for all intents and purposes reduce them to little more than collateral damage) as actually promoting equality when they do so at the terrible expense of human dignity for some. This our Constitutional Court recognised well before it was first faced with affirmative action in Van Heerden:
The prohibition on unfair discrimination in the interim Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked. [My emphasis]100
Mlambo J (in the Labour Appeal Court in Barnard) – who, apparently (and intriguingly), could not see how the impact of an affirmative action measure on those excluded from its benefits could conceivably have an effect on the legitimacy of the measure101 - declared that it is a misconstruction "to render the implementation of restitutionary measures subject to the right of an individual's right to equality (sic)". Interestingly, in the process (and in the course of a clear application of the van Heerden rationality approach), he admits that such restitutionary measures may potentially be unfair.102 On a general note, I think McGregor sums up at least one overarching problem with this last judgment well in declaring that "[e]quality did not find its place here; representivity was more important".103 Any denial of the fact that even a legitimate restitutionary measure can be unfair in its application would be facetious. And surely the Constitution calls for us to always ensure a prominent place for fairness in the equation when evaluating any potential limitation of rights. After all, Cameron J et al in Barnard (CC) tell us that "fairness is a foundational constitutional value".104 In the always-eloquent words of Sachs J:
It would, in my view, do a disservice to section 9(2) to treat it as a fantastical constitutional device for leaping over the gritty hurdles of hard social reality and escaping from basic equality analysis. It is not a magic analytical slipper which, if no toes protrude, converts the wearer into a sovereign princess unrestrained by any notions of fairness and beyond the bounds of ordinary constitutional scrutiny.105
This is really all I am calling for: ordinary constitutional scrutiny of affirmative action (as it is applied under the EEA).106 Mlambo J's approach in Barnard (LAC) seems to treat potential unfairness as irrelevant, and it is submitted that such an approach is simply untenable when dealing with efforts at redress under the Constitution.107 This brand of remedial action (or "transformation") is more appropriate – as the saying goes - when one is making omelettes, and less so when one is building a nation based on the fundamental principles of Ubuntu and non-racialism. In response to this approach one must ask whether the equality court's interpretation of the affirmative action provision of the Promotion of Equality and Unfair Discrimination Act108 (or PEPUDA, the "sister statute" to the EEA, also enacted in terms of the dictate contained in section 9(4) of the Bill of Rights) in Du Preez v Minister of Justice and Constitutional Development109 should not be seriously considered here.110 In the course of his judgment, Erasmus J referred to section 9(2) of the Bill of Rights and had the following to say regarding the constitutional obligation to consider the potential negative impact of affirmative action on non-beneficiaries:
It is relevant to the interpretation of [PEPUDA's affirmative action provision] that although affirmative action measures do not necessarily disadvantage any other persons, inevitably some measures will have that effect such as when one person is preferred over another on the basis of race or gender in the appointment to a position for which both had applied. To escape constitutional invalidity such measures must come within the protection afforded affirmative action by s 9(2) of the Constitution. What is the nature and extent of that protection? If the provisions of ss (2) of s 9 were to be interpreted as constituting an exception to the unfair discrimination proscribed by ss (3), then persons disadvantaged by affirmative action measures would have no protection under the equality rights guaranteed by the Constitution. If the Constitution were an ordinary legislative measure, such a construction of s 9 would be permissible. But the Constitution is not an ordinary statute. It is the supreme law which defines and reveals the ethical principles which underlie all law. Those principles are absorbed into and reflected in the values that inform the fundamental rights enshrined in the Bill of Rights. When applying the Bill of Rights, a court must promote all those values, and will therefore not readily accept an exclusion or diminution of a fundamental right even by another constitutional right, and certainly not by any other statute. The Constitution is therefore not subject to the canons of construction that govern the interpretation of ordinary statutes. A flexible and comprehensive approach is called for, acutely sensitive to all constitutional values and objectives. An interpretation of s 9(2) of the Constitution that sees its implicit approval of affirmative action measures as excluding or negating the right to equality, will therefore offend constitutional principle.111 [My emphasis]
This approach echoes what the CC advised us in Van Heerden, namely that restitutionary measures within the meaning of section 9(2) are not an exception to equality. But it also reminds us that non-beneficiaries of affirmative action may also lay claim to a right of equality. By implication it also recognises that these same beneficiaries may also rightfully claim the constitutional protection of their inherent dignity.112 Section 9(1) of the Bill of Rights, of course, also tells us this (as does the first sentence of section 9(2)). And, lo and behold, so does Van Heerden.113 Such an approach is more balanced than that of Mlambo J, and it does not, inexplicably (and as an apparent knee jerk reaction) privilege equality over all other fundamental rights and foundational values of the Constitution (in the process, apparently, seeking to remove it from the broader scheme of the Bill of Rights – including the provisions of the limitations clause). And it does not constitute, as Malan reminds us, such an apparently unthinking endorsement of the ideological homogenisation of our society under a majoritarian democracy (in a notably obvious blurring of the separation of powers). Yes, the court in Van Heerden reminded us that, due to our past, "the achievement of equality preoccupies our constitutional thinking".114 And yes, there are obvious and understandable tensions here115 when we deal with potential conflict between individual rights and interests and constitutionally-mandated measures premised on the pursuit of the greater good at the potential expense of individuals. In this specific context of the application of affirmative action, "fighting fire with fire gives rise to an inherent tension".116 But this does not mean that the former must necessarily, automatically and unquestioningly, bow to the latter. Wiechers, in response to Barnard (CC), reminds us that while the pronouncements on upliftment and equality in this judgment are laudable, when the rights of the individual are sacrificed by such ideals the moral basis of those objectives are fundamentally undermined:117
Upliftment, equality and non-racialism start with the individual, and if the individual's entitlements and rights must be sacrificed to serve a claimed greater good of equality, we are on the verge of an orchestrated denial of human rights. The old aphorism that the individual does not exist for the state, but the state exists for the individual and his or her rights and interests, is the central tenet of a free state.118
This view also resonates in the words of Malan (relying on Dworkin), who points out that:
... 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.119
The court in Barnard (CC) may very well have misconstrued its role or, at least, to an extent defaulted on the constitutional promise of the potential for justice in individual cases, which must still apply even to the previously advantaged. After all, to quote Sachs J again, "the rich too have rights".120 Taken to its inevitable conclusion, the approach of the Labour Appeal Court, by way of Mlambo J, would inevitably deny the previously advantaged any such right to constitutional protection and, in effect, relegate them to an underclass to the extent that their place in society and in the Constitution is denigrated.121 As van der Westhuizen J warned, even the perception of such a situation "may threaten the pursuit of our constitutional goal of a society in which everyone, regardless of their differences, is equally valued and at home".122 It would thus, in fact, threaten the pursuit and ultimate achievement of equality, not to mention other important constitutional rights and values that will always be in the firing line when faced with the insidious ideology of racial representivity pursued as a "programme of homogenisation", whereby not only the underclass of minority groups, but our very democracy is at threat.
Such homogenisation programmes that require individuals to change their cultural, linguistic and religious characteristics/identities in order to be absorbed into the so-called national identity constitute an iniuria to those against whom they are directed and they are thus an assault against their individual identity. Within a human rights paradigm they are an obvious offence against human dignity and freedom of expression and the right to freedom of association. If carried out wholesale against a whole cultural community, that is subjected to forced assimilation, such programmes would constitute attempted cultural genocide. This flies in the face of basic minority rights protection, which, apart from prohibiting discrimination against minorities, also seeks to guarantee the survival of the distinctive identities of minority cultural, religious, linguistic and national communities.123
I find it increasingly difficult to reconcile the disparate pronouncements of our highest court on these (and other) issues. As referred to earlier, we were told in Barnard (CC) that "[f]requently the goals of transformation are more important" than the impairment of the dignity of those who do not benefit from such measures124 (ie especially the white minority). This same court, in Minister of Homes Affairs v Fourie,125 however, said as follows:
Majoritarian opinion can often be harsh to minorities that exist outside the mainstream. It is precisely the function of the Constitution and the law to step in and counteract rather than reinforce unfair discrimination against a minority. The test, whether majoritarian or minoritarian positions are involved, must always be whether the measure under scrutiny promotes or retards the achievement of human dignity, equality and freedom.126
Which is it, exactly? Or is it enough simply to sweep the glaring inconsistency in these positions under the rug through the rather bald assertion (repeated by Moseneke ACJ in Barnard) that affirmative action measures that comply with the almost negligible rationality standard set in Van Heerden just cannot be unfair?127 There are other examples of this disparity in the views of our Constitutional Court judges, one of which is very germane to the issues under discussion here. I have referred to the fact that Jafta J, surprisingly and quite disappointingly, appeared to endorse the practice of race-based job reservation in his concurring judgment.128 Yet we find Moseneke ACJ expressly (in the context of his brief and rather disappointing discussion of the role of quotas) stating that "[q]uotas amount to job reservation and are properly prohibited by section 15(3) of the [EEA]".129 Frankly, I am sometimes at a loss to explain how the judges of this court can agree on anything to the point of writing concurring judgments. And the problem is sometimes most starkly illustrated in comparing the judgments of the same jurist in different cases. Startling (for me) here, is the case of Justice Moseneke. We have seen that he did not take issue with the hegemony of demographics in the application of affirmative action under the Employment Equity Act in Barnard (CC). I referred earlier (only in passing) to the potential relevance of Ubuntu in this present debate. In Everfresh Market Virginina v Shoprite Checkers130 (a contract law case) this same judge declared as follows in the context of the impact of this foundational value system on the application of the principle of good faith in contracts:
Indeed, it is highly desirable and in fact necessary to infuse the law of contract with constitutional values, including values of ubuntu, which inspire much of our constitutional compact. On a number of occasions in the past this Court has had regard to the meaning and content of the concept of ubuntu. It emphasises the communal nature of society and carries in it the ideas of humaneness, social justice and fairness, and envelopes the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity.131
Yet, this same judge does not see that the EEA's numbers game may very well be the antithesis of Ubuntu in the context of affirmative action. Where is the fairness, group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity in this form of cold and insensitive numerical target-chasing? Unless, of course, "group solidarity" envisages only the interests of one predominant group. The ideology of demographic representivity, with its fundamental racial focus, privileges the most numerous racial group as constituting the norm, and group solidarity equates to conformity to this basic norm to the exclusion of other groups. This, I would suggest, runs counter to the principles of Ubuntu, unless Ubuntu is reduced to an "Afro-centric country club" ideal which would rubbish the underlying ethos of our democratic (and human rights-based) Constitution.
The judiciary, more generally (and including the Constitutional Court), if it aims to endorse the numbers-driven species of affirmative action promoted by the Employment Equity Act, should have the courage of its convictions while being honest with us all. It should then rather tell us that (in practice if not in the often elaborate rhetoric of Constitutional Court judges) the form of affirmative action as conceived and applied under the EEA actually is an exception to the equality guarantee. At least then such measures may eventually be realised as having a limited life-cycle.132 As things currently stand, seeing that the equality right is a central and hopefully permanent feature of our Bill of Rights, there simply can and never will be an end to affirmative action.133 As respected Stanford economist Thomas Sowell, a staunch opponent of the idea that demographic representivity can ever be achieved (except by the means of highly artificial quotas), put it:
In short, the even representation of groups as a norm is difficult or impossible to find anywhere, while the uneven representation that is regarded as a special deviation to be corrected is pervasive across the most disparate societies. People differ – and have for centuries. It is hard to imagine how they could not differ, given the enormous range of differing historical, cultural, geographic, demographic, and other factors shaping the particular skills, habits and attitudes of different groups. Any "temporary" policy whose duration is defined by the goal of achieving something that has never been achieved before, anywhere in the world, could more fittingly be characterised as eternal.134
If we remove the application of (and disputes about) "affirmative action" under the Employment Equity Act from the paradigm of equality, at least then these provisions could be challenged on the basis of the constitutionally illegitimate representivity objective that they are designed to pursue (and their authors or defenders will not be able to hide behind the equality clause, as they invariably do).135 In fact, if we think back we'll recall that the Employment Equity Act is actually quite honest about this in so brazenly declaring its purpose (in section 2) explicitly to be the pursuit of representivity.136 So all we really need is for those defenders of measures pursued in terms of this policy, and our judges, it seems, to be more honest and to drop the pretence of the purported pursuit of substantive equality when it comes to defending this odious exercise of counting heads.137
Let me be controversial: The Employment Equity Act – or, at least, its provisions dealing with affirmative action - is little more than a mangy wolf in sheep's clothing.138 The Act is a plebeian placebo enacted by an all-powerful majority party whose support base is overwhelmingly aligned along racial lines, largely for the benefit of the supporters of that party at the expense of just about all others (irrespective of their political affiliation, or any other attributes except race and sex, and to a lesser extent, disability). It is a shining example of the legislative advancement of majoritarian democracy,139 and it makes perfect sense in the context of any democracy, as (presumably) reflecting an expression of the will of the majority, a fact which makes it especially unlikely to be repealed.140 Apart from its provenance under a liberation government with such a large, racially-aligned support base, the form and nature of this legislation, and the fact that it is still with us even after a decade of torrid, race-based social engineering of our workplaces, makes even more sense when one considers its innocuous reception on the world stage. This, of course, is only truly understandable if that stage is lit from the perspective of Apartheid as a crime against humanity (and if one also understands the psychology behind the resultant hero's welcome to be expected for any 'restorative' policy authored by a populist liberation movement which has always billed itself as the saviour of millions by ridding the world of such a crime against humanity). But what shady villain waits in the wings?:
"Racism" is commonly understood as the doctrine of racial superiority of one race over the other. However … some of the Nazi's most effective propaganda against the Jews appealed to the principle of "racial equality". (Equally, much anti-Semitic legislation adopted by European states in the 1930s and early 1940s was directed towards enforcing an "equality of outcomes" in the professions, economy, press and cultural life of their countries.) This helped open the door to widespread, and ultimately open-ended, societal acceptance of severe and escalating discrimination against individuals of Jewish descent. For, if society (or world opinion) accepts the principle, upfront, that 6 out of 7 individuals should be ejected from their occupation, in pursuit of the goal of racial proportionality, it is difficult to see at what point it will recover its sense of right and wrong. By the time the 5th or 6th individual is pushed aside society will be so compromised by what it has already acceded to, and so habituated to injustice, that it is hardly likely to lift a finger in protest when, as invariably happens, the 7th gets thrown out as well, and so on and on. The question is why this wind [of "demographic representivity"], which has brought with it to so much destruction and misery across Europe and Africa, is still not recognised by so much intellectual opinion as smelling deeply rotten?141
The bitter irony, of course, is that the Employment Equity Act – this purported saviour of the broken - offends some of the most fundamental underlying values and founding principles of our Constitution, not least non-racialism, non-sexism, the promotion of human dignity and freedom, and the rule of law. I am not stating this with the intention of arguing that affirmative action (generally) is anything approaching "reverse discrimination" or the like; I know that it is not. But the way that this Act designs and delineates the framework for affirmative action programmes is unconstitutional, and thus does not qualify for the benefits of a presumption of fairness under section 9(2) of the Bill of Rights (or section 6(2)(a) of the Act itself). And it is the EEA's particular sphere of application of the ANC government's demographic representivity ideology (which is, arguably, acceptable to some limited extent and in much more watered-down form in the public administration)142 to the private sector and to private individuals, that is mostly attributable to the problems experienced in practice in application of the Act. The perpetuation of this notion of demographic representivity would lead to the "re-racialisation of the economy and of our society, down to the second decimal place. It would disempower minorities by confining them to shrinking demographic pens in virtually every facet of their lives".143
The Employment Equity Act should be viewed as a significant blight on our progressive constitutional democracy, although it constitutes the manifestation (in the employment sphere) of a fundamental doctrinal pillar of our governing party's central ideology of transformation and its dearest held policies, and as such will remain largely sacrosanct unless a higher power (the judiciary, one would hope) intervenes. The Act's apparent immunity in academic and other circles results largely from a misplaced sense of political correctness, and from the fear that it invariably awakes in its opponents (of being labelled a racist, a colonialist, a "counter-revolutionary", or a "bloody agent" - or all of the above …). Twenty years into our democracy we must be able to air such views as these, free from fear of persecution. We should also be allowed the space to attempt to convince those with different views that action needs to be taken. Yes, opposing this Act may be unpopular, but since when has popularity ever been a guarantee of good sense? Both my young nieces just love the music of that Bieber kid.
Our liberal-egalitarian constitutional project – and its avowed emphasis on accountability and on speaking truth to power - requires more than just kow-towing to the majority view. The rule of law is so much more than "this is the rule, and therefore it is law" (Just ask anyone who experienced the ludicrous but obscene practices of the erstwhile dispensation in this country about the trials and tribulations of the "dompas"). As has been observed (echoing Mureinik's views on our Constitution's insistence on a culture of justification rather than a culture of authority):144
Constitutional legitimacy does not rest solely on equal voting rights. The idea of Socratic contestation underlying proportionality-based judicial review 'expresses the commitment that legitimate authority over any individual is limited by what can be demonstrably justified to the person burdened in terms of public reason. If a legislative act burdens an individual in a way that is not susceptible to a justification he might reasonably accept, then it does not deserve to be enforced as law.145
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