Redressing the past is not just about quotas and numbers, it is about changing mindsets and attitudes, says George Devenish.
Durban - Are racial quotas compatible with our constitution and its values?
Section 9(2) of the constitution makes provision for affirmative action by declaring: Equality includes the full and equal enjoyment of all rights and freedom. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
The constitution sets out the values on which the South African state is founded as, inter alia: human dignity, equality and freedom; non-racialism and non-sexism.
Therefore both the above provisions, inter alia, need to be carefully considered in the crafting of affirmative policies for South Africa that are compatible with the constitution and its values.
In light of the above, it must be asked whether racial quotas are compatible with the constitution, which in section 9(2) states that “legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken”, and which uses the term “disadvantage” as a criterion and does not refer to race.
Furthermore such affirmative action must be carried out in a “non-racial” way as required by section 1.
In the light of this, the judgment of the Supreme Court of Appeal on November 28, in which it declared invalid the employment of racial quotas in deciding on professional and work appointments, is seminal, holding that it was inequitable to endeavour to achieve employment equity through the rigid application of a quantitative formula based on race.
This epochal judgment has profound implications for the public service because several departments have been using inflexible demographic quotas to determine placements and promotions.
Furthermore, it brings a welcome measure of clarity to the construction of the controversial Employment Equity Act and its proposed amendment, which has been debated by the public in recent weeks, with claims made by the DA that the draft law enforces racial quotas, the constitutional validity of which are questionable.
UCT is also considering a new admission policy, premised on disadvantage as a criterion as opposed to the extant one, based on rigid racial quotas.
Of cardinal importance is that the judgment of the Supreme Court of Appeal holds that the law specifically prohibits the use of rigid quotas.
This important case was brought by trade union Solidarity, acting on behalf of police Captain Renate Barnard, who on two separate occasions was withheld promotion on the grounds of race, despite being the most suitable candidate.
As an applicant for promotion, she was strongly recommended by the interviewing panel as the best candidate on both occasions, but was rejected by the national commissioner, who advanced the argument that white women were already over-represented in the occupational category concerned.
As a consequence of this reasoning, the commissioner decided not to appoint anyone. Subsequently, on her third attempt, when Captain Barnard applied for the same position, the post was summarily withdrawn.
With great tenacity and perseverance, she pursued her struggle for justice over a period of eight years. Although she won her case, based on unfair discrimination, in the Labour Court in 2010, the Labour Appeal Court overturned the judgment two years later. She then appealed to the Supreme Court of Appeal.
It is significant that the judgment on November 28, by a full Bench of the court, was unanimous. As a result, her right to be treated equitably was vindicated and furthermore the court ordered that her costs, which were not inconsiderable, be paid and that the SAPS compensate her for loss of income.
As was to be expected, an executive spokesman for the Solidarity Union, Dirk Hermann, was elated and as a result described the ruling as “a huge victory for Solidarity and Captain Barnard”.
The court held that if an employer’s numerical employment equity targets effectively become quotas, unfair discrimination must result.
In its reasoning, the court argued cogently that “against the statutory background and the policy documents, it was never contended, nor could it be, that numerical targets and representivity are absolute criteria for appointment.
Adopting that attitude would turn numerical targets into quotas which are prohibited in terms of the Employment Equity Act”.
It must be noted that section 15 (3) of the Employment Equity Act of 1998 states that the equity measures that an employer must implement “include preferential treatment and numerical goals, but exclude quotas”. Although the act was amended last month by the Employment Equity Amendment Bill, section 15 (3) of the principal act, which the Supreme Court of Appeal describes as “prohibiting quotas”, remains unaltered.
It must be noticed, as pointed out by Paul Benjamin, a prominent labour lawyer, that “where targets that are flexible are applied as rigid quotas, the court has in the past struck them down”.
However, there is profound disagreement as to whether the amendment bill introduces racial quotas.
This is the view of several commentators and the DA, because the bill has removed some of the criteria for assessing compliance, such as the need to make reference to the pool of qualified people.
However, in contrast with this view it is argued that these criteria are replaced by a general “catch all” phrase, which could have the same effect, by, for instance, requiring the consideration of the availability of skills.
Judge Mohammed Navsa, who authored the Supreme Court of Appeal judgment, declared that while endeavouring to create a non-racial society, the use of rigid racial quotas are “like a throwback to the grand apartheid design” and its use of race classification.
He made a poignant appeal to people on all sides of the divide to do their utmost to overcome past inequalities in a fair manner.
“If we are to achieve success as a nation, each of us has to bear in mind that wherever we are located, it will take a continuous and earnest commitment to forge a future that is colour-blind.
“This necessarily includes serious and sustained efforts… in order to build a cohesive and potentially glorious rainbow nation.
“For now, ironically, in order to redress past imbalances with affirmative action measures, race has to be taken into account. We should do so fairly and without losing focus and reminding ourselves that the ultimate objective is to ensure a fully inclusive society – one compliant with the constitutional project.”
These are indeed wise words by a sagacious judge. They are echoed by Professor Ben Turok, an ANC MP, and one of the authors of the Freedom Charter, who in a column in Business Day (November 20) has opined that the redressing of racial disparities requires a national consensus.
The last word has, however, not been spoken on affirmative action as the Constitutional Court will ultimately have to pronounce on this contentious and important issue.
* George Devenish is a professor emeritus and senior research associate at the University of KwaZulu-Natal and one of the scholars who helped chart the Interim Constitution in 1993.
** The views expressed here are not necessarily those of Independent Newspapers.