9 September 2014

It is not easy to have a reasoned and intelligent discussion about the legal scope of affirmative action measures. The many agitated (but completely uninformed) responses to the recent affirmative action judgment of the Constitutional Court illustrate this point. Perhaps it may be helpful to begin to dissect the judgment and to analyse the fascinating and subtly different opinions on affirmative action expressed by various justices of the Constitutional Court.

Anyone familiar with the text of the equality clause in the South African Constitution (section 9), equality theory developed over the past 70 years and well-settled international human rights law on equality and non-discrimination will know that there is nothing legally or conceptually controversial about the implementation of affirmative action measures based on race, sex, gender or other grounds like sexual orientation and disability.

This does not mean that academics, lawyers and judges with a basic knowledgeable of equality and non-discrimination law do not engage in serious and important debates about the limits of affirmative action measures and the interplay between various forms of disadvantage and discrimination. In the judgment of South African Police Service v Solidarity obo Barnard various judges of the Constitutional Court begin to engage with some of these issues.

But to understand the judgment, it is first important to state what the case was not about.

The Barnard case was not about whether race-based affirmative action measures are permissible in South Africa. (It has long been settled by our courts that they are – not surprisingly, as section 9(2) of the Bill of Rights explicitly says so.) Neither was the case about the constitutionality or the legal validity of the employment equity plan devised by the police. (The validity of the plan was never challenged.) Neither was the constitutionality of the Employment Equity Act in issue. (Solidarity wisely decided not to challenge the provisions of the Act.)

The narrow question in the Barnard case was whether the National Commissioner of Police acted lawfully when he twice declined to appoint Renate Barnard as superintendent in order to ensure the effective pursuit of the numerical goals for racial representativity set out in the SAPS affirmative action policy. (The question of why other suitably qualified black candidates who also applied were not appointed was not raised or considered by the Court.)

It is also important to note that the SAPS affirmative action policy does not prevent the promotion of white applicants. Nor did it prevent Barnard from being promoted. In fact, after the National Commissioner declined to appoint Barnard to the post in question, she was promoted to Lieutenant Colonel in the National Inspectorate Division of the SAPS.

The judgment contains four different opinions by various judges of the Constitutional Court. All the justices agreed that the implementation of the employment equity plan by the National Commissioner of the SAPS complied with the requirements of the Employment Equity Act, but offered slightly different reasons for their decision.

All the judgments once again confirmed the importance of addressing the effects of past racial discrimination through the implementation of affirmative action measures. It affirmed that affirmative action measures are required to achieve equality and, implicitly, that such measures are not a departure from the right to equality, but a necessary requirement for its achievement.

Equality cannot be achieved by always treating all people in exactly the same manner, because all people in South Africa have not (and do not now) enjoy equal privileges and benefits. (In any case, the very essence of legal regulation is to authorise the different treatment of different groups of individuals for a salutary or valid purpose.) In the words of Deputy Chief Justice Moseneke, the Constitution “has a transformative mission. It hopes to have us re-imagine power relations within society”.

Importantly, in the main judgment Moseneke reminded us that affirmative action measures cannot do all the work to advance social equity. Moseneke therefore confirmed that affirmative action is an important mechanism to effect transformation, but that more is required from the state than to oversee its implementation.

A socially inclusive society idealised by the Constitution is a function of a good democratic state, for the one part, and the individual and collective agency of its citizenry, for the other… In the words of our Preamble, the state must help ‘improve the quality of life of all citizens and free the potential of each person’. That ideal would be within a grasp only through governance that is effective, transparent, accountable and responsive. Our public representatives will also do well to place a premium on an honest, efficient and economic use of public resources.

Moseneke thus reminds us that where the government is not effective, transparent, accountable and responsive, that government hampers transformation. Those who justify government secrecy, maladministration or tardiness are therefore the enemies of transformation.

All the justices also agreed that the transformative ethos of the Constitution means that those who have been (or continue to be) privileged because they are white or male (or because of other attributes such as their heterosexuality or able-bodiedness) might sometimes have to bear a limited burden associated with redress.

In the pursuit of correcting past injustices and achieving substantive equality, which may allow all South Africans to enjoy equal life chances (something that is still far from the case) the law may burden the privileged in ways authorised by the Constitution. Justice van der Westhuizen – implicitly drawing a comparison between white South Africans and post-Second World War Germans – best explained the reason for this:

So it may be a historical fact that the innocent often have to account for sins committed before they were born or able to act independently. However, ‘innocence’ of conduct by one’s ancestors or predecessors that in hindsight are widely recognised as morally repulsive, does not mean that the innocent have not over time benefited from injustice. One can benefit from a wrong without being guilty of wrongdoing.

All the justices further agreed that the Employment Equity Act does not allow strict and rigid quotas to be enforced but does allow an employment equity plan to set targets to be pursued by an employer. Rigid quotas would in effect place an absolute bar on the employment or promotion of a member of a privileged group. The SAPS employment equity plan did not impose such rigid quotas and neither did the manner in which the plan was being implemented.

There was also agreement that the Employment Equity Act does not allow for the employment or promotion of a person who is not suitably qualified for the job. To hold otherwise would be insulting to many black South Africans who only got their fair chance to shine and succeed because of redress measures. As Moseneke explained:

I pause to underline the requirement that beneficiaries of affirmative action must be equal to the task at hand. They must be suitably qualified people in order not to sacrifice efficiency and competence at the altar of remedial employment. The Act sets itself against the hurtful insinuation that affirmative action measures are a refuge for the mediocre or incompetent. Plainly, a core object of equity at the workplace is to employ and retain people who not only enhance diversity but who are also competent and effective in delivering goods and services to the public.

Where the justices seemed to have differed is on the exact standard imposed by the Employment Equity Act to measure whether a constitutionally valid employment equity plan was implemented lawfully.

In the main judgment Moseneke did not finally answer this question, but found that when an employment equity plan is implemented in a capricious manner or for an ulterior or impermissible purpose it would be unlawful.

As a bare minimum, the principle of legality would require that the implementation of a legitimate restitution measure must be rationally related to the terms and objects of the measure. It must be applied to advance its legitimate purpose and nothing else. Ordinarily, irrational conduct in implementing a lawful project attracts unlawfulness. Therefore, implementation of corrective measures must be rational. Although these are the minimum requirements, it is not necessary to define the standard finally.

However, on this score there are important differences between the main judgment written by Justice Moseneke and one of the concurring judgments written by Cameron, Froneman and Majiedt. (The other concurring judgments seem to agree with the main judgment of Moseneke on this point.)

The judgment of Cameron, Froneman and Majiedt holds that a valid employment equity plan must not only be implemented rationally but also fairly.

The third judgment of Van der Westhuizen raises questions about the wisdom of imposing this “fairness” standard to measure whether an employment equity plan was implemented lawfully. For reasons that are complicated to explain in short, Van der Westhuizen worried that introducing such a standard may lead to internal inconsistencies and may seem incoherent, given the fact that valid affirmative action measures are not subject to the fairness test in terms of section 9 of the Constitution.

In this case nothing turned on this possible disagreement because all the justices agreed that as the employment equity plan was not implemented in an overly rigid fashion, as there was no evidence that it placed an absolute barrier on the appointment of white SAPS members and as there was a clear need for affirmative action measures in the unit of the SAPS under discussion, the decision of the National Commissioner was lawful.

I do detect a slight difference in tone between the judgment of Cameron, Froneman and Majiedt on the one hand and the other justices on the other hand as the former emphasises the so-called “intersectionality” of different forms of disadvantage.

In laymen’s terms, this means the judgment highlighted the fact that a person can be severely disadvantaged because he is black, while being relatively advantaged because he is male or heterosexual or able-bodied. A person can also be more disadvantaged because she is a poor, black woman living in a rural area and not a middle-class, black man living in Sandton.

In line with this concern about the “intersectionality” of different forms of disadvantage, justices Cameron, Froneman and Majiedt stated that although race is still a vitally important measure of disadvantage and must be considered when employment equity targets are formulated:

We should also be careful not to allow race to become the only decisive factor in employment decisions. For this may suggest the invidious and usually false inference that the person who gets the job has done so not because of merit but only because of race. Over-rigidity therefore risks disadvantaging not only those who are not selected for a job, but also those who are.

These differences of emphasis in the various judgments did not affect the outcome of the case. However, the judgments illustrate that it is possible to have an informed, intelligent discussion on the scope and content of affirmative action measures and about the best way to ensure that each South African has equal life chances while also protecting the human dignity of all.

But this can only really happen if we agree on the incontrovertible fact that many South Africans still do not enjoy equal life chances because of past (and on-going) racial and other forms of discrimination. If we refuse to acknowledge this injustice and if we attempt to deny that some of us have been (and continue to be) privileged because of such injustice, an informed debate about the matter remains impossible.