Justifications and limitations of affirmative action
- Authors: Weinand, Lorentia Leana
- Date: 2019
- Subjects: Affirmative action programs -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/44077 , vital:37105
- Description: The main aim of this thesis is to establish whether affirmative action is justified and to consider the limitations imposed thereon. Regard had to be made to the past position, as affirmative action emanated from the apartheid era. This paper provides for an extensive discussion of what affirmative action entails and compares the past position of unfair discrimination towards the current position of affirmative action. It is important to have regard to the Constitution, legislation and case law relating to the application of affirmative action. Within this paper reference to the Constitution, LRA, EEA, case law, academic writings and journal articles is made in order to evaluate on what basis affirmative action is founded, justified and limited. The approach used in terms of substantive equality based on the Van Heerden1 and Harksen v Lane2 judgments. Provision is made as to whom affirmative action applies to. The process of implementation of affirmative action is visited with a view to give guidance on how affirmative action should be implemented, what the short comings are in the public sector with the implementation process and to provide guidelines to achieve a positive and effective affirmative action in South Africa Because certain people regard affirmative action as reverse discrimination, the contrary had to be analysed by way of legislation and authority from case law in order to provide for the correct position. It would become apparent from this paper that affirmative action does not only apply to designated employees, after the Van Heerden Judgment the courts have developed their approach in a number of authorities for example in Alexandre v Provincial administration of the Western Cape Department of Health3. India makes use of affirmative action that is in some instances similar to the South African approach. For a distinct reason I have chosen a comparison between India and South Africa. The reason is that, each individual’s personal circumstances that are to benefit from affirmative action have to be assessed before affirmative action applies to them. Further that I do not agree with the fact that a group as a whole should benefit, therefore recommendations have been made.
- Full Text:
- Date Issued: 2019
- Authors: Weinand, Lorentia Leana
- Date: 2019
- Subjects: Affirmative action programs -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/44077 , vital:37105
- Description: The main aim of this thesis is to establish whether affirmative action is justified and to consider the limitations imposed thereon. Regard had to be made to the past position, as affirmative action emanated from the apartheid era. This paper provides for an extensive discussion of what affirmative action entails and compares the past position of unfair discrimination towards the current position of affirmative action. It is important to have regard to the Constitution, legislation and case law relating to the application of affirmative action. Within this paper reference to the Constitution, LRA, EEA, case law, academic writings and journal articles is made in order to evaluate on what basis affirmative action is founded, justified and limited. The approach used in terms of substantive equality based on the Van Heerden1 and Harksen v Lane2 judgments. Provision is made as to whom affirmative action applies to. The process of implementation of affirmative action is visited with a view to give guidance on how affirmative action should be implemented, what the short comings are in the public sector with the implementation process and to provide guidelines to achieve a positive and effective affirmative action in South Africa Because certain people regard affirmative action as reverse discrimination, the contrary had to be analysed by way of legislation and authority from case law in order to provide for the correct position. It would become apparent from this paper that affirmative action does not only apply to designated employees, after the Van Heerden Judgment the courts have developed their approach in a number of authorities for example in Alexandre v Provincial administration of the Western Cape Department of Health3. India makes use of affirmative action that is in some instances similar to the South African approach. For a distinct reason I have chosen a comparison between India and South Africa. The reason is that, each individual’s personal circumstances that are to benefit from affirmative action have to be assessed before affirmative action applies to them. Further that I do not agree with the fact that a group as a whole should benefit, therefore recommendations have been made.
- Full Text:
- Date Issued: 2019
Mechanisms for implementing affirmative action
- Authors: Nongogo, Nqabisa Thandazile
- Date: 2018
- Subjects: Affirmative action programs -- South Africa , Minorities -- Employment -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/33475 , vital:32878
- Description: The aim of this study was to analyse the effective implementation of affirmative action. In South Africa. Affirmative action is seen as a means of correcting historical injustices and levelling the playing fields to enable all South Africans to gain equal access to opportunities from which they were previously restricted. This study observed that even though South Africa is now governed by a new democratic order historical workplace inequalities exists which still need to be addressed. Further it was noted that not only compelled to redress inequalities by the Constitution, the South African government was motivated by the ILO to enact laws that would prohibit discrimination and promote the economic advancement of the majority. Therefore, in an effort to narrow the gap between previously advantaged and disadvantaged individuals, the government passed a series of employment laws mandating, amongst other things, affirmative action. By doing so the South African government sought to ensure that all employers are compelled to take positive steps to redress disadvantage and inequality. Be that as it may, the study revealed that affirmative action is theoretically justifiable and has an important role in the achievement of equal opportunities and equality of outcome but in practice, various problems exist. Generally, the study reveals that notwithstanding the legislative framework of affirmative action in South Africa, inequalities continues to exist in employment, a clear signal of inadequate implementation of affirmative action. The study reveals that black people, women and unable persons are identified as primary victims of workplace inequalities. Continuity of work inequalities are statistically portrayed graphically in this year’s (2017) Quarterly Labour Force Survey (QLFS) conducted and published by Statistics South Africa on the Economically Active Population (EAP) still indicates no confidence to implementation of affirmative action measures nationwide. Reviews of implementation of affirmative action, recruitment strategies, retrenchment plans are strongly proposed to combat controversies and challenges surrounding the implementation of affirmative action. A sunset clause is highly recommended to projectize affirmative action. Similarly, with determined advocacy for affirmative action, the study anticipates progressive equality and sustainable justice in South African employment in the immediate future. Chapter five of this study recommends remedial measures to address the challenges and impediments for effective implementation of affirmative action.
- Full Text:
- Date Issued: 2018
- Authors: Nongogo, Nqabisa Thandazile
- Date: 2018
- Subjects: Affirmative action programs -- South Africa , Minorities -- Employment -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/33475 , vital:32878
- Description: The aim of this study was to analyse the effective implementation of affirmative action. In South Africa. Affirmative action is seen as a means of correcting historical injustices and levelling the playing fields to enable all South Africans to gain equal access to opportunities from which they were previously restricted. This study observed that even though South Africa is now governed by a new democratic order historical workplace inequalities exists which still need to be addressed. Further it was noted that not only compelled to redress inequalities by the Constitution, the South African government was motivated by the ILO to enact laws that would prohibit discrimination and promote the economic advancement of the majority. Therefore, in an effort to narrow the gap between previously advantaged and disadvantaged individuals, the government passed a series of employment laws mandating, amongst other things, affirmative action. By doing so the South African government sought to ensure that all employers are compelled to take positive steps to redress disadvantage and inequality. Be that as it may, the study revealed that affirmative action is theoretically justifiable and has an important role in the achievement of equal opportunities and equality of outcome but in practice, various problems exist. Generally, the study reveals that notwithstanding the legislative framework of affirmative action in South Africa, inequalities continues to exist in employment, a clear signal of inadequate implementation of affirmative action. The study reveals that black people, women and unable persons are identified as primary victims of workplace inequalities. Continuity of work inequalities are statistically portrayed graphically in this year’s (2017) Quarterly Labour Force Survey (QLFS) conducted and published by Statistics South Africa on the Economically Active Population (EAP) still indicates no confidence to implementation of affirmative action measures nationwide. Reviews of implementation of affirmative action, recruitment strategies, retrenchment plans are strongly proposed to combat controversies and challenges surrounding the implementation of affirmative action. A sunset clause is highly recommended to projectize affirmative action. Similarly, with determined advocacy for affirmative action, the study anticipates progressive equality and sustainable justice in South African employment in the immediate future. Chapter five of this study recommends remedial measures to address the challenges and impediments for effective implementation of affirmative action.
- Full Text:
- Date Issued: 2018
Affirmative action as a strategy for social justice in South Africa
- Authors: Sinuka, Zamile Hector
- Date: 2017
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Social justice -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Employment Equity Act -- 1998
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20362 , vital:29268
- Description: The purpose of this treatise is to develop a spirit of understanding affirmative action as a strategy that gives South Africa a human face of equality. The strategic development of affirmative action as part of Employment Equity Act is based on equality at workplace. This work takes note of the need to integrate human resource development for employment, productivity and education system that is based on formal education, prior knowledge education (RPL) and previous experience. The imbalances were designed to be of racial reflection therefore the redress process is racial in character but non-racial in content as the envisaged society is a non-racial society. The historical background of inequality and racial discrimination is noted in the environment of employment and on how other laws were enforcing the inequality. The arguments against affirmative action are debated and valid points of such arguments are noted as points of concern that must be considered in the process to attain equality. This work views affirmative action as a process that goes beyond employment relations and work as an instrument to change society by addressing social needs and services that have a reflection of inequality. Education is viewed as the out most important process to change the lives of people as affirmative action has a requirement of suitably qualified candidates to be affirmed. In South Africa problems of inequality were political designed but were enforced by various laws that were having material and psychological impact on the previously disadvantaged. The designated groups were divided into Africans, Indians and Coloureds, in Naidoo v Minister of Safety and Security this principle of defining designated racial groups was promoted in correction to the direction that was taken in Motala v University of Natal.Affirmative action is a legal process that addresses political designed problems. It is also a process that is exposed to abuse. Corrupt officials and managers appoint employees that do not qualify for posts on the bases of political affiliation or any other ground of discrimination. This is discussed with reference to the allegations of SADTU selling posts for principals, senior managers appointed in state co-operatives. The above mentioned tendencies are noted as part of negative indicators on the process that is meant to bring equality and non-racial society where all the citizens are given equal opportunities. This work views affirmative action as a strategy that is based on achieving a society that has a human face where race shall not be a point of reference.
- Full Text:
- Date Issued: 2017
- Authors: Sinuka, Zamile Hector
- Date: 2017
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Social justice -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Employment Equity Act -- 1998
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/20362 , vital:29268
- Description: The purpose of this treatise is to develop a spirit of understanding affirmative action as a strategy that gives South Africa a human face of equality. The strategic development of affirmative action as part of Employment Equity Act is based on equality at workplace. This work takes note of the need to integrate human resource development for employment, productivity and education system that is based on formal education, prior knowledge education (RPL) and previous experience. The imbalances were designed to be of racial reflection therefore the redress process is racial in character but non-racial in content as the envisaged society is a non-racial society. The historical background of inequality and racial discrimination is noted in the environment of employment and on how other laws were enforcing the inequality. The arguments against affirmative action are debated and valid points of such arguments are noted as points of concern that must be considered in the process to attain equality. This work views affirmative action as a process that goes beyond employment relations and work as an instrument to change society by addressing social needs and services that have a reflection of inequality. Education is viewed as the out most important process to change the lives of people as affirmative action has a requirement of suitably qualified candidates to be affirmed. In South Africa problems of inequality were political designed but were enforced by various laws that were having material and psychological impact on the previously disadvantaged. The designated groups were divided into Africans, Indians and Coloureds, in Naidoo v Minister of Safety and Security this principle of defining designated racial groups was promoted in correction to the direction that was taken in Motala v University of Natal.Affirmative action is a legal process that addresses political designed problems. It is also a process that is exposed to abuse. Corrupt officials and managers appoint employees that do not qualify for posts on the bases of political affiliation or any other ground of discrimination. This is discussed with reference to the allegations of SADTU selling posts for principals, senior managers appointed in state co-operatives. The above mentioned tendencies are noted as part of negative indicators on the process that is meant to bring equality and non-racial society where all the citizens are given equal opportunities. This work views affirmative action as a strategy that is based on achieving a society that has a human face where race shall not be a point of reference.
- Full Text:
- Date Issued: 2017
An evaluation of affirmative action in public sector
- Authors: Myoli, Vuyiseka Marly
- Date: 2017
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Human rights -- South Africa , Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/14190 , vital:27443
- Description: The South African public service has been undergoing fundamental transformation since 1994. The new government has had to build a democratic, inclusive and responsive public sector to the extent that the last two decades have witnessed the most dramatic shifts in public reform. After 1994, the public sector had to be transformed so that it could be representative of the nation’s racial composition, caters for the needs of all citizens irrespective of their racial, ethnic, gender, sexual persuasion and orientation. The government agenda of reconstructing and developing a democratic state depends on the willingness, capabilities and patriotism of the public service. As part of its transformation agenda, the government had to introduce policies that were focusing on promoting affirmative action and employment equity. Through this policy and other related employment equity measures, the South African public sector had to be transformed in terms of racial and gender representivity. This study assesses and evaluates whether the policies and legislation that were geared towards the transformation and democratization of public sector have yielded positive or negative results. By way of a literature review and comparative analysis, this study examines the objectives of affirmative action and analyses the approaches that have been taken since the adoption of this policy in the workplace. It looks at public sector and argues that there are still flaws relating to the implementation of affirmative action in public sector. The extent to which affirmative action programs attempt to implement affirmative action differs if South Africa and the United States of America can be taken as examples. The study considers some of the challenges faced by the new South African government in transforming public sector and interrogates the courts’ application and interpretation of affirmative action legislation. It concludes with recommendations that could be put in place in order to position affirmative action policies in line with the objectives of the South African Constitution, labour laws and American approach where the policy was adopted from.
- Full Text:
- Date Issued: 2017
- Authors: Myoli, Vuyiseka Marly
- Date: 2017
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Human rights -- South Africa , Affirmative action programs -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/14190 , vital:27443
- Description: The South African public service has been undergoing fundamental transformation since 1994. The new government has had to build a democratic, inclusive and responsive public sector to the extent that the last two decades have witnessed the most dramatic shifts in public reform. After 1994, the public sector had to be transformed so that it could be representative of the nation’s racial composition, caters for the needs of all citizens irrespective of their racial, ethnic, gender, sexual persuasion and orientation. The government agenda of reconstructing and developing a democratic state depends on the willingness, capabilities and patriotism of the public service. As part of its transformation agenda, the government had to introduce policies that were focusing on promoting affirmative action and employment equity. Through this policy and other related employment equity measures, the South African public sector had to be transformed in terms of racial and gender representivity. This study assesses and evaluates whether the policies and legislation that were geared towards the transformation and democratization of public sector have yielded positive or negative results. By way of a literature review and comparative analysis, this study examines the objectives of affirmative action and analyses the approaches that have been taken since the adoption of this policy in the workplace. It looks at public sector and argues that there are still flaws relating to the implementation of affirmative action in public sector. The extent to which affirmative action programs attempt to implement affirmative action differs if South Africa and the United States of America can be taken as examples. The study considers some of the challenges faced by the new South African government in transforming public sector and interrogates the courts’ application and interpretation of affirmative action legislation. It concludes with recommendations that could be put in place in order to position affirmative action policies in line with the objectives of the South African Constitution, labour laws and American approach where the policy was adopted from.
- Full Text:
- Date Issued: 2017
The application of BEE legislation on employment
- Authors: Loock, Madelaine
- Date: 2017
- Subjects: Business enterprises -- Law and legislation -- South Africa , Affirmative action programs -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17990 , vital:28551
- Description: BBBEE is currently on everyone’s minds and the uncertainty surrounding the changes to the Codes of Good Practice as well as the Sector Codes leaves business owner’s with a feeling of uncomfortable anticipation. The changes to the Codes of Good Practice has set the tone and most of the Sector Codes are being modelled around the Codes. Business owners will have to adapt to the changes and plan in advance in order to avoid being without a compliant BEE certificate. This will entail a strategic analysis of the company’s financial position as well as a strategic BEE plan for the 12 months they will be rated on.
- Full Text:
- Date Issued: 2017
- Authors: Loock, Madelaine
- Date: 2017
- Subjects: Business enterprises -- Law and legislation -- South Africa , Affirmative action programs -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/17990 , vital:28551
- Description: BBBEE is currently on everyone’s minds and the uncertainty surrounding the changes to the Codes of Good Practice as well as the Sector Codes leaves business owner’s with a feeling of uncomfortable anticipation. The changes to the Codes of Good Practice has set the tone and most of the Sector Codes are being modelled around the Codes. Business owners will have to adapt to the changes and plan in advance in order to avoid being without a compliant BEE certificate. This will entail a strategic analysis of the company’s financial position as well as a strategic BEE plan for the 12 months they will be rated on.
- Full Text:
- Date Issued: 2017
The obligation on employers to effect affirmative action measures
- Authors: Papu, Mzimkulu Gladman
- Date: 2017
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Employment Equity Act -- 1998 , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19738 , vital:28949
- Description: Since 1994, South Africa has undergone socio-economic, political and demographic transformation. The Employment Equity Act (No 55) of 1998 aims to facilitate workplace transformation through the elimination of unfair discrimination and the implementation of affirmative action measures to enable equitable representation of employees in all occupational categories and levels in the workplace. This legislation was amended on 1 August 2014, and South Africa has watched with keen interest to see what the impact of the amendments to the Employment Equity Act would be on the world of work. For many it was to see whether job seekers and individuals from the designated groups experienced equity in access to the workplace and fair treatment in employment. For others, it was to see to what extent businesses would either benefit from its accountability and fairness to all employees or suffer from increased regulatory compliance to employment equity and affirmative action amendments. At the heart of the amendments was a need to make the South African Constitution real for South Africans in facilitating work inclusive environments in which people are enabled and motivated to contribute to the goals of the organisation. The state must respect, protect, promote and fulfil the rights in the Bill of Rights, one of these rights being equality. Affirmative action as a component of employment equity is inherently part of the process of increasing and managing diversity and identifying barriers to fair employment. Transformation does make business sense. No business will survive in the long-run, unless it reinvents itself and constantly adapts to the ever-changing demands of an increasingly competitive global environment in which it operates. An organisation’s ability to create a work culture in which diversity management is effectively managed is more likely to experience the positive effects thereof on its business. Organisations require a diverse workforce with the requisite multidisciplinary talents and knowledge to achieve its goals in an ever-changing environment. The evaluation of the extent of the progress and the narrative is to be drawn from the reported workplace demographics. This is made up of statistical analyses of the representation of individuals from designated groups at different occupational levels, as well as training and progression of designated employees by reporting employers. The ultimate test of transformation however, is in the extent to which employees would vouch for the inclusivity of the workplace environment and the total absence of unfair discrimination based on listed and arbitrary grounds. For the Commission to be able to comment on the experience of diversity management and inclusion as part of employment equity, a different approach needs to be taken. I am excited to share that the Commission’s strategic plan for the period 2016 to 2021 has prioritised the need to go beyond workforce demographic statistics and move towards a better understanding of the experience of fair treatment, diversity and “inclusion” Management. There is a significant shift in the way in which the Commission is approaching its work, in the interest of the country. It is not the aim of the Commission for Employment Equity to focus its attention on the punitive measures for non-compliance only, and accordingly the third Commission hosted the Employment Equity Awards, which recognise the good work done by organisations towards furthering the transformation agenda. The third Commission moreover developed a number of Codes of Good Practice to support the implementation of employment equity. A lot of ground was covered to enable the fourth Commission to focus on their mandate more effectively. We are grateful for their hard work and we wish them well as we look forward to realising our objectives. On a different note, the United Nations offices in New York were a hub of activity and rigorous debate during the March 2016 Summit on the Status of Women. One of the themes extensively interrogated at the summit was “Women Empowerment in the economic space”. Globally, not enough is happening to turn the economic status of women. The United Nations Sustainable Goal 5 is “Gender Equality”. A 50-50 target has been set for female representivity at all occupational levels globally. South Africa needs to work towards this goal as part of their contribution. The Summit echoed the words “Women leaders in the business world is everyone’s business”. It would do us proud in the future to be able to report significant progress in this area. Another topical issue was “Equal Pay for Work of Equal Value”. Three countries, namely Canada, Sweden and Iceland have committed themselves to pay parity across gender by 2022. South Africa on the other hand has already enacted this policy. We need to see significant change in this area. In line with the discussions during the summit, I would also like to encourage designated employers in South Africa to review policies in favour of transparency around remuneration. This will go a long way in creating an enabling environment for elimination of unfair discrimination in the workplace.
- Full Text:
- Date Issued: 2017
- Authors: Papu, Mzimkulu Gladman
- Date: 2017
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Employment Equity Act -- 1998 , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/19738 , vital:28949
- Description: Since 1994, South Africa has undergone socio-economic, political and demographic transformation. The Employment Equity Act (No 55) of 1998 aims to facilitate workplace transformation through the elimination of unfair discrimination and the implementation of affirmative action measures to enable equitable representation of employees in all occupational categories and levels in the workplace. This legislation was amended on 1 August 2014, and South Africa has watched with keen interest to see what the impact of the amendments to the Employment Equity Act would be on the world of work. For many it was to see whether job seekers and individuals from the designated groups experienced equity in access to the workplace and fair treatment in employment. For others, it was to see to what extent businesses would either benefit from its accountability and fairness to all employees or suffer from increased regulatory compliance to employment equity and affirmative action amendments. At the heart of the amendments was a need to make the South African Constitution real for South Africans in facilitating work inclusive environments in which people are enabled and motivated to contribute to the goals of the organisation. The state must respect, protect, promote and fulfil the rights in the Bill of Rights, one of these rights being equality. Affirmative action as a component of employment equity is inherently part of the process of increasing and managing diversity and identifying barriers to fair employment. Transformation does make business sense. No business will survive in the long-run, unless it reinvents itself and constantly adapts to the ever-changing demands of an increasingly competitive global environment in which it operates. An organisation’s ability to create a work culture in which diversity management is effectively managed is more likely to experience the positive effects thereof on its business. Organisations require a diverse workforce with the requisite multidisciplinary talents and knowledge to achieve its goals in an ever-changing environment. The evaluation of the extent of the progress and the narrative is to be drawn from the reported workplace demographics. This is made up of statistical analyses of the representation of individuals from designated groups at different occupational levels, as well as training and progression of designated employees by reporting employers. The ultimate test of transformation however, is in the extent to which employees would vouch for the inclusivity of the workplace environment and the total absence of unfair discrimination based on listed and arbitrary grounds. For the Commission to be able to comment on the experience of diversity management and inclusion as part of employment equity, a different approach needs to be taken. I am excited to share that the Commission’s strategic plan for the period 2016 to 2021 has prioritised the need to go beyond workforce demographic statistics and move towards a better understanding of the experience of fair treatment, diversity and “inclusion” Management. There is a significant shift in the way in which the Commission is approaching its work, in the interest of the country. It is not the aim of the Commission for Employment Equity to focus its attention on the punitive measures for non-compliance only, and accordingly the third Commission hosted the Employment Equity Awards, which recognise the good work done by organisations towards furthering the transformation agenda. The third Commission moreover developed a number of Codes of Good Practice to support the implementation of employment equity. A lot of ground was covered to enable the fourth Commission to focus on their mandate more effectively. We are grateful for their hard work and we wish them well as we look forward to realising our objectives. On a different note, the United Nations offices in New York were a hub of activity and rigorous debate during the March 2016 Summit on the Status of Women. One of the themes extensively interrogated at the summit was “Women Empowerment in the economic space”. Globally, not enough is happening to turn the economic status of women. The United Nations Sustainable Goal 5 is “Gender Equality”. A 50-50 target has been set for female representivity at all occupational levels globally. South Africa needs to work towards this goal as part of their contribution. The Summit echoed the words “Women leaders in the business world is everyone’s business”. It would do us proud in the future to be able to report significant progress in this area. Another topical issue was “Equal Pay for Work of Equal Value”. Three countries, namely Canada, Sweden and Iceland have committed themselves to pay parity across gender by 2022. South Africa on the other hand has already enacted this policy. We need to see significant change in this area. In line with the discussions during the summit, I would also like to encourage designated employers in South Africa to review policies in favour of transparency around remuneration. This will go a long way in creating an enabling environment for elimination of unfair discrimination in the workplace.
- Full Text:
- Date Issued: 2017
The programmatic enforcement of affirmative action
- Authors: Ncume, Ali Zuko
- Date: 2015
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5521 , vital:20873
- Description: Historically, racism was deeply rooted in the workplace in South Africa where white people were largely afforded better opportunities than their black counterparts. This position changed after South Africa became a democratic country. In the new South Africa, legislation has been adopted to combat unfair discrimination. This legislation is founded upon the equality clause contained in section 9 of the Constitution of the Republic of South Africa. Section 9 prohibits unfair direct or indirect discrimination against any person on any of the listed grounds. It also makes provision for protection against unfair discrimination on unlisted grounds. The Employment Equity Act was enacted to bring equality to the workplace and to give effect to section 9(2) of the constitution. The Employment Equity Act promotes equal opportunities and fair treatment and seeks to eliminate unfair discrimination. Section 6 of the Employment Equity Act contains the main thrust of the Act’s prohibition against unfair discrimination. However not all discrimination is unfair. Section 6(2) of the Employment Equity Act provides that discrimination based on the inherent requirements of a job or in terms of affirmative action measures will not be unfair. This section implies that there are grounds of justification which may cause discrimination to be fair. These grounds are affirmative action and inherent requirements of a job. Affirmative action is a purposeful and planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminated by unfair discrimination in the past. There are affirmative action measures incorporated in the Employment Equity Act. There exists also a designed programmatic enforcement of affirmative action measures.
- Full Text:
- Date Issued: 2015
- Authors: Ncume, Ali Zuko
- Date: 2015
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/5521 , vital:20873
- Description: Historically, racism was deeply rooted in the workplace in South Africa where white people were largely afforded better opportunities than their black counterparts. This position changed after South Africa became a democratic country. In the new South Africa, legislation has been adopted to combat unfair discrimination. This legislation is founded upon the equality clause contained in section 9 of the Constitution of the Republic of South Africa. Section 9 prohibits unfair direct or indirect discrimination against any person on any of the listed grounds. It also makes provision for protection against unfair discrimination on unlisted grounds. The Employment Equity Act was enacted to bring equality to the workplace and to give effect to section 9(2) of the constitution. The Employment Equity Act promotes equal opportunities and fair treatment and seeks to eliminate unfair discrimination. Section 6 of the Employment Equity Act contains the main thrust of the Act’s prohibition against unfair discrimination. However not all discrimination is unfair. Section 6(2) of the Employment Equity Act provides that discrimination based on the inherent requirements of a job or in terms of affirmative action measures will not be unfair. This section implies that there are grounds of justification which may cause discrimination to be fair. These grounds are affirmative action and inherent requirements of a job. Affirmative action is a purposeful and planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminated by unfair discrimination in the past. There are affirmative action measures incorporated in the Employment Equity Act. There exists also a designed programmatic enforcement of affirmative action measures.
- Full Text:
- Date Issued: 2015
The legal consequences of failure to give effect to affirmative action measures
- Authors: Burton, Colin Peter
- Date: 2013
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10239 , http://hdl.handle.net/10948/d1012904
- Description: In South African law, affirmative action has been a very controversial topic over the years. 5 Controversial issues such as perceptions and reactions of affirmative action in the South African context are varied. 6 These reactions are often categorised as politically explosive and emotionally charged. 7 Most people fear the implications of affirmative action, more specifically the impact thereof on their individual positions within the workplace.8 Those who feel threatened by these measures, tend to question the political and ethical legitimacy thereof. 9 Those who stand to benefit from these measures often dislike the labelling associated with these measures. 10 Confusion also exits in greater society about relationship between the equal opportunity, black advancement, affirmative action and diversity management paradigms and related practices. The sources of conflicting reactions to affirmative action stem from individual, group and cultural believes and values which were both shaped by the political realities of the previous regime and the ideals people cherish for themselves in the current dispensation. Colonialist and apartheid laws, policies and practices which were racist and patriarchal provided for separate societies for blacks, whites, Indians and coloureds. 11 At this point in time separate labour systems with job reservation were applicable for whites. There were also wage differentiations between white and black people and between sexes. 12 Furthermore, disabled people were kept dependant and there were also discriminatory legislative provisions against them. 13 This history of systemic discrimination and its resulting inequality and entrenched disadvantage for black, coloured and Indian women and the disabled, was and still is well-known both nationally and internationally. 14 Internationally, apartheid has been extensively disapproved. Examples hereof include the United Nations that declared apartheid and its impact a “crime against humanity” and a negation of the United Nations Charter, 15 expressions of censure culminated in the adoption of the International Convention on the Suppression and Punishment of the Crimes of Apartheid16 and the expulsion of South Africa from the United Nations and its agencies. 17 Nationally, on the other hand, South Africa promulgated several legislative pieces namely, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998.
- Full Text:
- Date Issued: 2013
- Authors: Burton, Colin Peter
- Date: 2013
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10239 , http://hdl.handle.net/10948/d1012904
- Description: In South African law, affirmative action has been a very controversial topic over the years. 5 Controversial issues such as perceptions and reactions of affirmative action in the South African context are varied. 6 These reactions are often categorised as politically explosive and emotionally charged. 7 Most people fear the implications of affirmative action, more specifically the impact thereof on their individual positions within the workplace.8 Those who feel threatened by these measures, tend to question the political and ethical legitimacy thereof. 9 Those who stand to benefit from these measures often dislike the labelling associated with these measures. 10 Confusion also exits in greater society about relationship between the equal opportunity, black advancement, affirmative action and diversity management paradigms and related practices. The sources of conflicting reactions to affirmative action stem from individual, group and cultural believes and values which were both shaped by the political realities of the previous regime and the ideals people cherish for themselves in the current dispensation. Colonialist and apartheid laws, policies and practices which were racist and patriarchal provided for separate societies for blacks, whites, Indians and coloureds. 11 At this point in time separate labour systems with job reservation were applicable for whites. There were also wage differentiations between white and black people and between sexes. 12 Furthermore, disabled people were kept dependant and there were also discriminatory legislative provisions against them. 13 This history of systemic discrimination and its resulting inequality and entrenched disadvantage for black, coloured and Indian women and the disabled, was and still is well-known both nationally and internationally. 14 Internationally, apartheid has been extensively disapproved. Examples hereof include the United Nations that declared apartheid and its impact a “crime against humanity” and a negation of the United Nations Charter, 15 expressions of censure culminated in the adoption of the International Convention on the Suppression and Punishment of the Crimes of Apartheid16 and the expulsion of South Africa from the United Nations and its agencies. 17 Nationally, on the other hand, South Africa promulgated several legislative pieces namely, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998.
- Full Text:
- Date Issued: 2013
Substantive equality and affirmative action in the workplace
- Authors: Nconco, Mpumelelo
- Date: 2012
- Subjects: Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10196 , http://hdl.handle.net/10948/1617 , Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other. , Abstract
- Full Text:
- Date Issued: 2012
- Authors: Nconco, Mpumelelo
- Date: 2012
- Subjects: Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10196 , http://hdl.handle.net/10948/1617 , Equality before the law -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa
- Description: During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other. , Abstract
- Full Text:
- Date Issued: 2012
Challenges in the implementation of affirmative action policy at a municipality
- Authors: Baqo, Zukelwa
- Date: 2012-01
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Affirmative action programs -- Government policy -- South Africa
- Language: English
- Type: Master's Thesis , text
- Identifier: http://hdl.handle.net/10353/26368 , vital:65295
- Description: A survey of 50 employees was conducted to identify challenges in the implementation of affirmative action, as well as intervention that have been implemented to escalate its implementation at Nkonkobe Municipality in the Eastern Cape. A closed questionnaire containing 26 items was used to collect date form respondents. The results of the study were analysed and interpreted using descriptive statistics and inferential statistics, that is, Chi square test to measure association between demographic responses to each of the variables. Results indicated that lack of top management commitment to transformation, poor perception about affirmative action by managers about affirmative action, failure to link affirmative action to business strategy and poor representation of relevant stakeholders in the Employment Equity committee, are the fundamental factors that contribute to the sluggish implementation of affirmative action at Nkonkobe Municipality. Findings also revealed that successful implementation of affirmative action also depend on capacitating managers with the skills necessary to implement plans effectively, commitment of top management to making transformation a strategies priority, as well as investment in training and development is necessary to assist beneficiaries to catch up with those employees that have has a better education. , Thesis (MCom) -- Faculty of Management and Commerce, 2012
- Full Text:
- Date Issued: 2012-01
- Authors: Baqo, Zukelwa
- Date: 2012-01
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Affirmative action programs -- Government policy -- South Africa
- Language: English
- Type: Master's Thesis , text
- Identifier: http://hdl.handle.net/10353/26368 , vital:65295
- Description: A survey of 50 employees was conducted to identify challenges in the implementation of affirmative action, as well as intervention that have been implemented to escalate its implementation at Nkonkobe Municipality in the Eastern Cape. A closed questionnaire containing 26 items was used to collect date form respondents. The results of the study were analysed and interpreted using descriptive statistics and inferential statistics, that is, Chi square test to measure association between demographic responses to each of the variables. Results indicated that lack of top management commitment to transformation, poor perception about affirmative action by managers about affirmative action, failure to link affirmative action to business strategy and poor representation of relevant stakeholders in the Employment Equity committee, are the fundamental factors that contribute to the sluggish implementation of affirmative action at Nkonkobe Municipality. Findings also revealed that successful implementation of affirmative action also depend on capacitating managers with the skills necessary to implement plans effectively, commitment of top management to making transformation a strategies priority, as well as investment in training and development is necessary to assist beneficiaries to catch up with those employees that have has a better education. , Thesis (MCom) -- Faculty of Management and Commerce, 2012
- Full Text:
- Date Issued: 2012-01
Managing the perceptions about affirmitive action (AA)
- Authors: Swartbooi, Aurick Devlin
- Date: 2010
- Subjects: Affirmative action programs -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , MBA
- Identifier: vital:8684 , http://hdl.handle.net/10948/1120 , Affirmative action programs -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: The main research problem focused on the effective management of the perceptions about Affirmative Action (AA). A literature study and a survey were conducted to investigate the extent and nature of perceptions, the effect of these perceptions on labour and personal relations, current and suggested management practice of the perceptions of AA. A definition of AA, earlier measures of AA, the implementation of AA in the South African context, the stages of AA, theories, relevant legislation, perceptions and the management thereof are discussed. The survey was conducted at the George and Beaufort West District offices of the Department of Rural Development and Land Reform (DRDLR) with a response rate of 78.95 percent. The perceptions about AA can be managed effectively by complying with legislation, by involving and making all levels of employees responsible for the achievement of employment equity, skills development, personal development, consultation and communication.
- Full Text:
- Date Issued: 2010
- Authors: Swartbooi, Aurick Devlin
- Date: 2010
- Subjects: Affirmative action programs -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , MBA
- Identifier: vital:8684 , http://hdl.handle.net/10948/1120 , Affirmative action programs -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: The main research problem focused on the effective management of the perceptions about Affirmative Action (AA). A literature study and a survey were conducted to investigate the extent and nature of perceptions, the effect of these perceptions on labour and personal relations, current and suggested management practice of the perceptions of AA. A definition of AA, earlier measures of AA, the implementation of AA in the South African context, the stages of AA, theories, relevant legislation, perceptions and the management thereof are discussed. The survey was conducted at the George and Beaufort West District offices of the Department of Rural Development and Land Reform (DRDLR) with a response rate of 78.95 percent. The perceptions about AA can be managed effectively by complying with legislation, by involving and making all levels of employees responsible for the achievement of employment equity, skills development, personal development, consultation and communication.
- Full Text:
- Date Issued: 2010
Substantive equality and proof of employment discrimination
- Authors: Loyson, Madeleine
- Date: 2009
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
- Full Text:
- Date Issued: 2009
- Authors: Loyson, Madeleine
- Date: 2009
- Subjects: Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10208 , http://hdl.handle.net/10948/1059 , Discrimination in employment -- South Africa , Labor laws and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
- Full Text:
- Date Issued: 2009
A critical analysis of employment equity measures in South Africa
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
- Full Text:
- Date Issued: 2007
- Authors: Laher, Ismail
- Date: 2007
- Subjects: South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3680 , http://hdl.handle.net/10962/d1003195 , South Africa. Employment Equity Act, 1998 , Labor laws and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , Affirmative action programs -- Law and legislation -- South Africa
- Description: This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution. After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes. The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system. The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.
- Full Text:
- Date Issued: 2007
Affirmative action in terms of the Empolyment Equity Act
- Authors: Mgcodo, Yolanda Thandile
- Date: 2004
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , South Africa. Employment Equity Act -- 1998
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11048 , http://hdl.handle.net/10948/356 , Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , South Africa. Employment Equity Act -- 1998
- Description: The term affirmative action originated in the United States some 30 years ago to describe a process of liberating minority groups. The objective of affirmative action within an organisational context, is to democratise the workplace by enabling members of previously disadvantaged groups to progress higher up the ranks of the corporate world. The affirmative action drive only took off in South Africa when it became part of the democratisation process and the focus was directed towards liberating the historically disadvantaged black majority. Prior to 1994, the reasons for implementing affirmative action programmes were largely political because of the race-based discrimination. Historically disadvantaged people were a minority in senior positions, the reason being that although the blacks were given a chance to compete with their white counterparts, due to their poor education standards and lack of experience only a few was appointed. The Employment Equity Act 55 of 1998 aims to correct the demographic imbalances in the nation’s workforce by compelling employers to remove barriers to advancement of blacks, coloureds, Indians, women and disabled, and actively to advance them in all categories of employment by affirmative action. The Employment Equity Act consists of two main sections. The first replaces and refines the prohibition on unfair discrimination in item 2(1)(a) of Schedule 7 of the Labour Relations Act. The second aspect deals with imposing a duty to the employers to adopt affirmative action programmes. The Employment Equity Act places a positive obligation on all employers “to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice”. Where unfair discrimination is alleged, the onus of proving that discrimination is fair, or practice is not discriminatory at all, rests upon the employer. Disputes about unfair discrimination must be referred to the CCMA, and if not settled by conciliation, to the Labour Court, which has the power to order compensation or the payment iv of damages, or to direct the employer to take steps to prevent the same unfair discrimination or similar practice occurring in the future in respect of other employees. The second section of the Employment Equity Act deals with the imposition of the duty to designated employers to adopt affirmative action programmes. All employers with more than 50 employees, or which have annual turnovers equal to or above the annual turnovers for small businesses of their class, municipalities, organs of state, and those designated as such by collective agreement, must implement affirmative action measures for people from designated groups. This entails consulting with employers, conducting an analysis of employment policies, practices, procedures and the working environment to identify barriers, drawing up employment equity plans and reporting thereafter to the Director-General of the Department of Labour on progress made in implementing the plan. Any employee may bring alleged contraventions of the Act to the attention of the employer, another employee, or any trade union, workplace forum, labour inspector or the Director- General of the Employment Equity Commission. Labour inspectors appointed under the Basic Conditions of Employment Act may enter and inspect employer’s properties and documents, and are responsible for ensuring that the employer has consulted with employees as required, conducted the pre-equity plan analysis prepared its plan and is implementing it, submitted and published its reports, set up the necessary managerial infrastructure, and informed its employees of progress. Should employers be found not to have complied with these requirements, labour inspectors must request a written undertaking that they will do so. If an employer fails to give such an undertaking, the labour inspector can issue a compliance order setting out inter alia what steps the employer must take and when, and the maximum fine, if any, that can be imposed if the employer fails to comply. If the employer does not pay attention to the compliance order within the prescribed period, the Director-General may apply to have it made an order of the Labour Court. The Director-General may also conduct independent ad hoc reviews of selected designated employers. Failure by an employer to comply with the provision of the Act lead to the employer being liable for the contravention of the Act.
- Full Text:
- Date Issued: 2004
- Authors: Mgcodo, Yolanda Thandile
- Date: 2004
- Subjects: Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , South Africa. Employment Equity Act -- 1998
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11048 , http://hdl.handle.net/10948/356 , Affirmative action programs -- Law and legislation -- South Africa , Discrimination in employment -- Law and legislation -- South Africa , South Africa. Employment Equity Act -- 1998
- Description: The term affirmative action originated in the United States some 30 years ago to describe a process of liberating minority groups. The objective of affirmative action within an organisational context, is to democratise the workplace by enabling members of previously disadvantaged groups to progress higher up the ranks of the corporate world. The affirmative action drive only took off in South Africa when it became part of the democratisation process and the focus was directed towards liberating the historically disadvantaged black majority. Prior to 1994, the reasons for implementing affirmative action programmes were largely political because of the race-based discrimination. Historically disadvantaged people were a minority in senior positions, the reason being that although the blacks were given a chance to compete with their white counterparts, due to their poor education standards and lack of experience only a few was appointed. The Employment Equity Act 55 of 1998 aims to correct the demographic imbalances in the nation’s workforce by compelling employers to remove barriers to advancement of blacks, coloureds, Indians, women and disabled, and actively to advance them in all categories of employment by affirmative action. The Employment Equity Act consists of two main sections. The first replaces and refines the prohibition on unfair discrimination in item 2(1)(a) of Schedule 7 of the Labour Relations Act. The second aspect deals with imposing a duty to the employers to adopt affirmative action programmes. The Employment Equity Act places a positive obligation on all employers “to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice”. Where unfair discrimination is alleged, the onus of proving that discrimination is fair, or practice is not discriminatory at all, rests upon the employer. Disputes about unfair discrimination must be referred to the CCMA, and if not settled by conciliation, to the Labour Court, which has the power to order compensation or the payment iv of damages, or to direct the employer to take steps to prevent the same unfair discrimination or similar practice occurring in the future in respect of other employees. The second section of the Employment Equity Act deals with the imposition of the duty to designated employers to adopt affirmative action programmes. All employers with more than 50 employees, or which have annual turnovers equal to or above the annual turnovers for small businesses of their class, municipalities, organs of state, and those designated as such by collective agreement, must implement affirmative action measures for people from designated groups. This entails consulting with employers, conducting an analysis of employment policies, practices, procedures and the working environment to identify barriers, drawing up employment equity plans and reporting thereafter to the Director-General of the Department of Labour on progress made in implementing the plan. Any employee may bring alleged contraventions of the Act to the attention of the employer, another employee, or any trade union, workplace forum, labour inspector or the Director- General of the Employment Equity Commission. Labour inspectors appointed under the Basic Conditions of Employment Act may enter and inspect employer’s properties and documents, and are responsible for ensuring that the employer has consulted with employees as required, conducted the pre-equity plan analysis prepared its plan and is implementing it, submitted and published its reports, set up the necessary managerial infrastructure, and informed its employees of progress. Should employers be found not to have complied with these requirements, labour inspectors must request a written undertaking that they will do so. If an employer fails to give such an undertaking, the labour inspector can issue a compliance order setting out inter alia what steps the employer must take and when, and the maximum fine, if any, that can be imposed if the employer fails to comply. If the employer does not pay attention to the compliance order within the prescribed period, the Director-General may apply to have it made an order of the Labour Court. The Director-General may also conduct independent ad hoc reviews of selected designated employers. Failure by an employer to comply with the provision of the Act lead to the employer being liable for the contravention of the Act.
- Full Text:
- Date Issued: 2004
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