Legal evaluation of affirmative action in South Africa

Abstract

With its equality jurisprudence only in its infancy stage, affirmative action will provide a difficult challenge to the Constitutional Court. Employment equity and affirmative action, like other projects of social transformation translated into law, need to be balanced with individual and collective needs of security, continuity and national integration. The specific challenge facing the court will be to integrate its approach to affirmative action with its endorsement of the notion of substantive equality and the normative standards it has developed for the determination of unfair discrimination. It is submitted that the latter do provide at least a rudimentary focus, which is sensitive and open-ended enough to accommodate the complex array of competing interests at stake in affirmative action disputes. In this article, the implications of the court's equality approach for affirmative action are considered, with reference to some pertinent issues, such as the applicable standard for the constitutional review of affirmative action, and the fairness and proportionality of affirmative action measures (including the problem of the over- or underinclusiveness of affirmative action). The present state of South African case law on the subject is considered, with comparative references to approaches adopted in other jurisdictions. (J. for Juridical Science: 2001 26 (3): 12-28)