Unpacking the affirmative action equation from a constitutional perspective

May 1st, 2017
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By Gideon Tapanya

South Africa (SA) has a rich history of racial divisions that affected people of colour (African, Coloured, and Indian people) at all levels of the society, be it socially or in employment. However, the advent of the Constitution marked the beginning of a democratic dispensation, which ushered a new lease of life to the dejected masses of SA. Significantly, s 9(1) of the Constitution provides a formal equality clause to the effect that all people are equal and that they should be guaranteed the equal protection and the benefit from the law. However, s 9(2) of the Constitution goes a step further to provide for a substantive equality clause comprising of affirmative action measures, which are meant to eradicate the aforementioned socio-economic disparities caused by Apartheid.

The Employment Equity Amendment Act 47 of 2013 (EEA), a legislation enacted to guide the implementation of constitutional affirmative action measures deviates from the general equality notion and the affirmative action standard stipulated in ss 9(1) and 9(2) of the Constitution respectively. Section 2 of the EEA, which provides the EEA’s aim adopts a new standard of affirmative action measures that reads in equitable representation as a requirement of substantive equality, which in itself is a deviation from the s 9(2) constitutional affirmative action measures. The practical consequence of utilising the equitable representation notion stipulated in s 2 of the EEA is the potential application of the concept of demographic representivity, a mechanism that operates the same way as racial quotas.

However, ss 174(2), 193(2), 195(1)(i) and 205(2) of the Constitution that provide for the concept of broad representivity may be the missing link, which is meant to direct the procedure to be adopted when implementing the s 9(2) constitutional affirmative action measures. This article distinguishes the concept of broad representivity from the concept of demographic representivity.

Broad representivity and demographic representivity defined

Some reading into ss 174(2), 193(2), 195(1)(i) and 205(2) of the Constitution denote that ‘broad representivity’ is only the presence in an employer’s workforce, of the race and gender classes, which are represented in SA’s national demographic profiles. While, Koos Malan (‘Observations on representivity, democracy and homogenisation’ (2010) 3 TSAR 427) defines ‘demographic representivity’ as the norm in ‘which institutions and organised spheres of people are required to be composed in such a manner that they reflect the national population profile, particularly the racial profile of the national population.’ Coincidentally, s 9(2) of the Constitution provides for affirmative action measures only sets a standard, which the contemplated measures should conform to, however, omitting to provide the procedure that must be adopted when implementing those measures. However, considering that the enforcement of the equality guarantee is not only limited to the literal interpretation of s 9 of the Constitution, it is imperative to consider other parts of the Constitution. Sections 174(2), 193(2), 195(1)(i) and 205(2) of the Constitution are discussed in turn.

Section 174(2) of the Constitution

Section 174(2) of the Constitution provides for an affirmative action procedure of appointing judicial officers that is akin to the concept of demographic representivity. Section 174 of the Constitution came under spotlight when it was inappropriately applied by the Magistrates’ Commission in Singh v Minister of Justice and Constitutional Development and Others 2013 (3) SA 66 (EqC). However, the section provides for a peculiar procedure comprising broad representivity. Section 174(2) of the Constitution states that whenever judicial officers are appointed, the racial and gender profiles of SA must be broadly reflected. Moreover, the section goes further to state that ‘any appropriately qualified woman or a man who is a fit and proper person may be appointed as a judicial officer.’

The significance of s 174(2) of the Constitution in providing for the concept of broad representivity is that it displays that the procedure that is contemplated by s 9(2) constitutional affirmative action measures, which was never to impose rigid racial and gender quotas as provided for by the concept of demographic representivity, a mechanism created by the EEA. Section 174(2) of the Constitution is clear in its wording that not even race and gender quotas can preclude any appropriately qualified man or woman from appointment as a judicial officer once he or she has been certified a fit and proper person. Thus, the presence of the race and gender classes represented in SA’s demographic profiles suffice without a mathematical requirement for the appointment of judicial officers to mirror the demographic profiles.

Section 193(2) of the Constitution

Section 193(2) of the Constitution provides that democratic institutions established in terms of Chapter IX of the Constitution must reflect the race and gender profiles of SA. This section’s requirements are akin to those of s 174(2) of the Constitution discussed above. Thus, this section will not be dwelled on much. However, s 193(1)(c) of the Constitution is significant because it is the only section of all the aforementioned sections on broad representivity, which reads in a consideration that can potentially negate s 193(2) of the Constitution. Section 193(1)(c) of the Constitution requires compliance with national legislation when recruiting staff in democratic institutions created in terms of Chapter IX of the Constitution. The application of the concept of demographic representivity, a mechanism of affirmative action, which is empowered by the EEA may find justification in terms of s 193(1)(c) of the Constitution. However, the application of the concept of demographic representivity can be challenged in terms of Harksen v Lane NO and Others 1998 (1) SA 300 (CC) and the fairness test, which requires proportionality in all affirmative action measures.

Section 195(1)(i) of the Constitution

In Munsamy v Minister of Safety and Security and Another [2013] 7 BLLR 695 (LC) at para 65 s 195(1)(i) of the Constitution is mentioned as an integral section, which ensures broad representivity in public administration appointments. Section 195(1)(i) of the Constitution requires public administration institutions to broadly reflect the composition of the South African people. The extent to which this section provides for in public administration appointments might also be implied to apply by extension into private sector appointments. Section 195(1)(i) recommends ‘employment and personnel management practices based on’ the following factors in order to achieve broad representivity:

  • Ability

The literal meaning of ‘ability’ from the Colour Oxford English Dictionary 3rd ed (New York: Oxford University Press 2011) is ‘the power or capacity to do something’. Thus, prospective employees or prospective candidates for promotion must possess a certain degree of competence in the job concerned before they can be hired. In South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC) placing prospective job seekers and candidates for promotion on competence tests was justified on the basis of the ability factor. However, ability cannot be solely considered to qualify a prospective employee for a particular job. The ability factor has to be complemented by the other factors.

  • Objectivity

‘Objectivity’ means ‘considering the facts about something without being influenced by personal feelings or opinions’ as per the Colour Oxford English Dictionary (op cit). Thus, in the context of affirmative action, objectivity means the allocation of available employment placements based on the real needs of the department concerned without being influenced by race and gender animosity. However, Mildred Oliphant, the incumbent Minister of Labour expressed in her speech on the Employment Equity Amendment Bill, 2013 to the National Council of Provinces in Cape Town on 21 November 2013 that the African National Congress’s Affirmative Action Policy is marred with racial animosity against white people. This animosity is deeply rooted in the implementation of the concept of demographic representivity which is devoid of the objectivity that is envisaged by s 195(1)(i) of the Constitution.

  • Fairness

In Du Preez v Minister of Justice and Constitutional Development and Others (2006) 27 ILJ 1811 (SE) at para 40, ‘fairness’ is defined as the consideration of all competing interests in the decision-making process. The Harksen case at para 52 concurs by reading in some degree of proportionality holding that fairness entails considering the severity of any decision on the rights and legitimate interests of prospective employees or candidates for promotion excluded from any affirmative action benefits. Moreover, in Public Servants Association of South Africa and Others v Minister of Justice and Others 1997 (3) SA 925 (T) at para 989A – B, it was held that rationality requires that if mechanisms of affirmative action like the concept of demographic representivity are to be regarded as alternatives of equality, a reasonable link must exist between executing such measures and the achievement of equality.

  • The need to redress imbalances of the past

The need to redress imbalances of the past requires affirmative action measures to be implemented in compliance with the threefold inquiry formulated in Minister of Finance and Another v Van Heerden 2004 (6) SA 121 (CC) at para 37. The three legs of inquiry formulated were whether:

– The measure targets persons or categories of persons who have been disadvantaged by unfair discrimination.
– The measure is designed to protect or advance such persons or categories of persons.
– The measure promotes the achievement of equality.

While it is easy for affirmative action measures to satisfy the first and the second legs of inquiry, the third leg of inquiry is often overlooked. Even the then Acting Chief Justice, Dikgang Moseneke, when he adjudicated in the South African Police Service case, he seemed to have been swayed by the need to defend his earlier judgment in the Minister of Finance case where he overlooked the need for affirmative action measures to have the achievement of equality as their objective.

Section 205(2) of the Constitution

Section 205(2) of the Constitution provides that: ‘National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces.’ While s 205(2) of the Constitution specifically applies to the police service, it might be inferred to apply to other public administration departments. The significance of s 205(2) of the Constitution is that it provides a challenge to s 42 of the EEA, which accords designated employers the choice to either use the national or the regional economically active population profiles of SA. There has been serious debate over this enfettered power, which is accorded to designated employers by s 42 of the EEA. However, s 205(2) of the Constitution seeking to improve efficiency in the police service adopts a realistic approach, because whether a company or an organisation is nationally based, employment always occurs regionally as far as employees are concerned.

Conclusion

Sections 174(2), 193(2), 195(1)(i) and 205(2) of the Constitution could be read to create an exception to s 9(2) of the Constitution, so as to restrictively accommodate instances of broad representivity, which entail social inclusiveness without a strict mathematical reliance on SA’s demographic profiles. Sections 174(2), 193(2), 195(1)(i) and 205(2) of the Constitution provide an ideal affirmative action procedure, which should be followed whenever instances of demographic representivity are encountered in legislation. The sections complement merit with other competing interests. Thus, ss 174(2), 193(2), 195(1)(i) and 205(2) of the Constitution are the only instances in which limited versions of demographic representivity are permitted to exist constitutionally.

Gideon Tapanya LLB (WSU) LLM in Labour Studies (UKZN) is a pro bono attorney in Durban.

This article was first published in De Rebus in 2017 (May) DR 32.

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