Abstract
The author critically examines the organising principle of the affirmative action provisions of the Employment Equity Act (or EEA), as well as the implications of the recent judgment by the Constitutional Court in its first case involving the application of affirmative action in the employment context (and in terms of the EEA) – SAPS v Solidarity obo Barnard. While reiterating the need for restitutionary measures such as affirmative action in South Africa, the author concludes – probably quite controversially - that the EEA's treatment of affirmative action has nothing to do with the equality right in the Bill of Rights, and that the Act pursues a different (and omnipresent) social engineering agenda by the state. The author calls for this realisation to prompt future affirmative action cases arising from the application of this Act to be removed from the scheme of (and potential defences available under) the equality jurisprudence, and for the courts to critically interrogate the constitutionality of the EEA's affirmative action scheme within its own context. The author believes that Chapter III of the Act is unconstitutional in this sense, and he calls for the scrapping of its provisions. He also calls for a (more) constitutionallycompliant exposition from the Constitutional Court of the parameters of legitimate affirmative action under the Bill of Rights, and adds his voice to the numerous calls for reconsideration of the "rationality test" expounded in Minister of Finance v van Heerden. More generally, the author considers the apparently all-pervasive application of the government ideology of the pursuit of demographic representivity in "transformation" of employment and other contexts (expressing grave doubts about its constitutionality along the way). This article forms Part 1 of this piece and the author considers the constitutional requirements for a legitimate affirmative action programme or measure. He then examines the affirmative action scheme of the Employment Equity Act, and explains his views on why such scheme is, in fact, unconstitutional. In Part 2 of this piece (which follows in this edition), the author continues to critically evaluate the Constitutional Court judgment in the Barnard case, and he highlights the biggest areas of disappointment of this judgment within the context of South Africa's equality jurisprudence. After a very brief consideration of the recent amendments to the Employment Equity Act, the author concludes by providing reasons why the Act's approach to affirmative action needs to be rejected, and soon.
Highlights
As I write this, many pundits are probably still reeling – in disappointment, if nothing else - from reading the various, variegated and sometimes verbose judgment(s) in what promised to be one of the most important employment law cases to confront the Constitutional Court in recent years
Barnard's case is the first on affirmative action in the employment context to grace the hallowed halls of the Braamfontein court (following its landmark affirmative action judgment in Minister of Finance v Van Heerden6), it is a case that has run the gamut of our judicial system, having ended up before the Constitutional Court in Barnard (CC) after a protracted innings that included airings before the Labour Court, the Labour Appeal Court and the Supreme Court of Appeal
"consistent with the purpose of this Act". Within this scheme of justification for unfair discrimination, very interesting to consider the wording of section 2, which provides as follows: Section 2: Purpose of the Act The purpose of the Act is to achieve equity in the workplace by – (a)promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and (b)implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workplace.'[My emphasis]
Summary
As I write this, many pundits are probably still reeling – in disappointment, if nothing else - from reading the various, variegated and sometimes verbose judgment(s) in what promised to be one of the most important employment law cases to confront the Constitutional Court (or CC) in recent years. More will be said below about these differences, but for the point is that any affirmative action measure (or legislative or other instrument which mandates the application of affirmative action) must satisfy the requirements of either or both of these approaches to the differential treatment of persons on grounds listed as suspect in the equality right, in the sense of constituting (or leading to a presumption of the existence of) unfair discrimination. Unlike the rationality test, Harksen's fairness approach emphasises (or, at least, points towards) the position of the complainant in an unfair discrimination case It would, in an affirmative action complaint brought for example by a white male require that the impact of the relevant policy or measure on the complainant should be measured, with the benchmark being the effect of the exclusion from benefits. In s 4 of the text below I will briefly revisit the Van Heerden "rationality test", academic criticism of it, and its treatment in Barnard (CC)
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