Substantive equality and the defence of affirmative-action
- Keith-Bandath, Rasheed Ethan
- Authors: Keith-Bandath, Rasheed Ethan
- Date: 2015
- Subjects: Equality before the law -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/3899 , vital:20474
- Description: Giving effect to the constitutional right to equality and the peculiar nature thereof in a heterogeneous society such as South Africa has proved to be a perplexing task. This is apparent when analyzing case law on the subject which demonstrates that our courts are regularly confronted with complex equality claims, and as a consequence, naturally have to make difficult decisions which in turn contribute toward our emerging and developing equality jurisprudence and ultimately the achievement of the constitutional standard of equality. This treatise considers substantive equality as a species of equality in the workplace and the defence of affirmative-action justification in terms of section 6 of the Employment Equity Act. In doing so, it outlines the seemingly peculiar application of affirmative action in a society that was once divided along racial and gender lines, a society that has once experienced one of the most severe forms of racial discrimination in the form of apartheid and its associated laws, policies and practices. This oppressive political regime had the effect of entrenching a deep legacy of racism, deprivation, exclusion and discrimination into the social fabric of society, which in turn had a disproportionate impact on the majority of people or categories of people relative to an elite minority. The legacy of this oppressive political system remains alarmingly evident today. The treatise reveals the challenges and difficulties a society faces in attempting to break with past patterns of disadvantage and its efforts to build a society that is non-racist, non-sexist, socially just and inclusive. The Constitution with its transformative vision should be considered the genesis of this credible and abiding process of redress. It is this exercise of redress coupled with the Constitution’s transformative mandate that raises difficult issues of restoration and reparation for past injustice, and the most appropriate and accommodating manner to do so. In addition to the Constitution, Parliament has enacted national legislation as a transformative agent in the workplace. The EEA as a legislative instrument was designed to give effect to the constitutional right to equality in the workplace. It emphatically prohibits unfair discrimination, but also obliges designated employers to implement affirmative-action measures. For such measures not to be unfairly discriminatory, they must be consistent with the purpose of the EEA. A plain reading of the EEA reveals that it does not provide sufficient guidelines for valid affirmative action. However, the EEA provides an interpretive injunction in that it must be interpreted in light of the Constitution and international law. In this regard the Constitutional Court in Minister of Finance v Van Heerden 1 in interpreting the Constitution, developed a test to assess whether a restitutionary measure such as affirmative action is in fact and in law a valid measure. To date this test is generally not followed, despite the authority of the judgment. In this regard, the courts have developed sound, but sometimes inconsistent principles and standards to test for the validity of affirmative action and to adjudge whether such measures are compliant with the Act. The test has also recently been reaffirmed in the recent judgment of South African Police Service v Solidarity obo Barnard.2 It is anticipated that affirmative-action case law will henceforth develop along the same lines. In this we appreciate judicial guidance and supervision in interpreting and pronouncing upon the legitimacy and validity of affirmative-action measures.
- Full Text:
- Date Issued: 2015
- Authors: Keith-Bandath, Rasheed Ethan
- Date: 2015
- Subjects: Equality before the law -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/3899 , vital:20474
- Description: Giving effect to the constitutional right to equality and the peculiar nature thereof in a heterogeneous society such as South Africa has proved to be a perplexing task. This is apparent when analyzing case law on the subject which demonstrates that our courts are regularly confronted with complex equality claims, and as a consequence, naturally have to make difficult decisions which in turn contribute toward our emerging and developing equality jurisprudence and ultimately the achievement of the constitutional standard of equality. This treatise considers substantive equality as a species of equality in the workplace and the defence of affirmative-action justification in terms of section 6 of the Employment Equity Act. In doing so, it outlines the seemingly peculiar application of affirmative action in a society that was once divided along racial and gender lines, a society that has once experienced one of the most severe forms of racial discrimination in the form of apartheid and its associated laws, policies and practices. This oppressive political regime had the effect of entrenching a deep legacy of racism, deprivation, exclusion and discrimination into the social fabric of society, which in turn had a disproportionate impact on the majority of people or categories of people relative to an elite minority. The legacy of this oppressive political system remains alarmingly evident today. The treatise reveals the challenges and difficulties a society faces in attempting to break with past patterns of disadvantage and its efforts to build a society that is non-racist, non-sexist, socially just and inclusive. The Constitution with its transformative vision should be considered the genesis of this credible and abiding process of redress. It is this exercise of redress coupled with the Constitution’s transformative mandate that raises difficult issues of restoration and reparation for past injustice, and the most appropriate and accommodating manner to do so. In addition to the Constitution, Parliament has enacted national legislation as a transformative agent in the workplace. The EEA as a legislative instrument was designed to give effect to the constitutional right to equality in the workplace. It emphatically prohibits unfair discrimination, but also obliges designated employers to implement affirmative-action measures. For such measures not to be unfairly discriminatory, they must be consistent with the purpose of the EEA. A plain reading of the EEA reveals that it does not provide sufficient guidelines for valid affirmative action. However, the EEA provides an interpretive injunction in that it must be interpreted in light of the Constitution and international law. In this regard the Constitutional Court in Minister of Finance v Van Heerden 1 in interpreting the Constitution, developed a test to assess whether a restitutionary measure such as affirmative action is in fact and in law a valid measure. To date this test is generally not followed, despite the authority of the judgment. In this regard, the courts have developed sound, but sometimes inconsistent principles and standards to test for the validity of affirmative action and to adjudge whether such measures are compliant with the Act. The test has also recently been reaffirmed in the recent judgment of South African Police Service v Solidarity obo Barnard.2 It is anticipated that affirmative-action case law will henceforth develop along the same lines. In this we appreciate judicial guidance and supervision in interpreting and pronouncing upon the legitimacy and validity of affirmative-action measures.
- Full Text:
- Date Issued: 2015
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
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