Affirmative Action is Just

by Vuyani Ngalwana

What is it about affirmative action that gets some people aploplectic and others apologetic? I venture to say it's lack of understanding, that's what.

A challenge to the implementation of affirmative action measures can never concern its philosophical basis, or its virtues or vices in whatever setting. It can also never concern an enquiry into its legal and moral rectitude.

The simple reason for this is that the debate as regards the philosophical, legal or moral rectitude of affirmative action was put to bed on 4 February 1997 when the Constitution, 1996, became law.

By sections 9(2) and 217(2) of the Constitution, the multi-party Constitutional Assembly (which adopted the final draft of the Constitution) and the Constitutional Court (which certified its provisions as being in compliance with all 34 constitutional principles) acknowledged that equality is an ideal whose achievement must be promoted through "legislative and other measures" if South Africans are to live by the constitutional values of human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism, non-sexism, the supremacy of the Constitution and the rule of law.

While the Constitution accords everyone equality before the law (including the full and equal enjoyment of all rights and freedoms) and the right to equal protection and benefit of the law, it also allows for preferential treatment, by law, of persons or categories of persons who have been disadvantaged by unfair discrimination of the relatively recent past. That measure finds expression in s9(2) and s217(2) of the Constitution. s9(2) says

"To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimation may be taken."

s217(2) says while organs of state and government in all its spheres must procure goods and services in a manner that is fair, equitable, transparent, competitive and cost-effective, they are nonetheless not precluded from implementing a procurement policy that prefers persons or categories of persons disadvantaged by unfair discrimination with a view to protecting and advancing those persons.

These two constitutional provisions constitute the fons et origo of affirmative action. The "legislative measures" contemplated in the section come in the form of numerous Acts of Parliament intended to give content to the constitutional imperative of which the sections speak. These Acts of Parliament include the Employment Equity Act, 1998, (and regulations promulgated thereunder), the Preferential Procurement Policy Framework Act, 2000 (and its regulations) and the Broad-Based Black Economic Empowerment Act, 2003 (and regulations).

The express purpose of the Employment Equity Act is:

"to achieve equity in the workplace by ... promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and ... implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational levels in the workforce."

In short, affirmative action is what it is. It is a measure that is intended constitutionally to prefer black people above white people both in employment and in the procurement of goods and services. The idea is to redress the effects of unfair discrimination over decades of apartheid. Beneficiaries of this measure should stop either being apologetic or in denial about it. White people who feel (whether genuinely or by design) adversely affected by it should learn to live with it and stop being aploplectic about it. This is a constitutional imperative - until the Constitution is amended.

There is nothing in any of these legislative measures that requires the promotion of incompetence above competence. The parallels that tend to be drawn between affirmative action and incompetence are simply mischievous.

For example, s15 of the Employment Equity Act defines "affirmative action measures" as being:

"measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer."

The Constitutional Court has on numerous occasions acknowledged that remedial measures (such as affirmative action) will, as they must if they are to be effective, affect those advantaged by apartheid (white people) adversely. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) the Court said:

"The emasures that bring about transformation will inevitably affect some members of the society adversely, particularly those coming from previously advantaged communities. It may well be that other considerations may have to yield in favour of achieving the goal we fashioned for ourselves in the Constitution."

That goal is the "constitutional commitment of achieving equality" through "affirmative action measures".

In Bel Porto School Governing Body and Others v Premier, Western Cape, and Another, the Counstitutional Court said:

"[I]n order to achieve the goals set in the Constitution, what has to be done in the process of transformation will at times inevitably weigh more heavily on some members of the community than others."

  

Put plainly, white people (because they generally benefitted from apartheid) will inevitably bear the brunt of constitutional redress of past racial inequalities the effects of which are still being felt today. There is absolutely no need to be pusillanimous about this. It is what it is. The Constitution and the Constitutional Court say so.

The Constitutional Court has also acknowledged the inordinate harm caused by apartheid to black people and that it is imperative that this be redressed not simply by passing laws by which racial discrimination is ended but rather by taking positive steps to extirpate the effects of that discrimination. It said in Bato Star:

"Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it."

Affirmative action gives content to that commitment to end the effects of racial discrimination.

To similar effect, the Court said the following in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others:  

"It is insufficient for the Constitution merely to ensure, through its Bill of Rights, that statutory provisions which have caused such unfair discrimination in the past are eliminated. Past unfair discrimination frequently has ongoing negative consequences, the continuation of which is not halted immediately when the initial causes thereof are eliminated, and unless remedied, may continue for a substantial time and even indefinitely." 

Thus, as South Africans we need to take our heads out of the sand and accept the fact that without affirmative action (more frankly, the preferential treatment of black people over whites generally in relation to employment opportunities and the procurement of goods and services) South Africa will never achieve achieve the constitutional goal for which the Constitution enjoins all of us to strive - substantive equality. Absent that, we shall have created fertile ground for disaffection which will in turn breed violent crime, corruption and the death of the rule of law.