Analysis: The cycles of affirmative action in the transformation of the workplace

• Jurisdiction: South Africa
• Pages: 99-112
• Citation: (2020) 32 SA Merc LJ 99
• Published date: 19 January 2021
• Author: Mushariwa, M.
• Date: 19 January 2021

JOBNAME: SAMLJ Vol 31 Part 1 PAGE: 1 SESS: 61 OUTPUT: Mon Nov 9 15:26:37 2020 SUM: 32F20C44

/first/JUTA/SA−Merc−2020/SAMLJ−2020−V32−pt1/05_Mushariwa

Analysis

THE CYCLES OF AFFIRMATIVE ACTION IN

THE TRANSFORMATION OF THE

WORKPLACE

MURIEL MUSHARIWA

Senior lecturer in Law, University of the Witswatersrand,

Johannesburg

I INTRODUCTION

Centuries of colonialism and apartheid created a legacy of inequality in

South Africa that the democratic Constitution of the Republic of South

Africa, 1996 (‘the Constitution’) seeks to address (s 9(2)). The Employ-

ment Equity Act 55 of 1998 (EEA) was enacted to give effect to the

constitutional right to equality in a substantive sense. The stated purpose

of the EEA is to eliminate unfair discrimination through the promotion

of equal opportunity and fair treatment in employment, and to imple-

ment aff‌irmative action measures to redress the disadvantages

experienced by designated groups, in order to ensure their equitable

representation in all occupational categories and levels in the workforce

(s 2 of the EEA). Furthermore, section 9 goes beyond conferring a right

to formal equality. Rather, it requires restitutionary measures by the

state to achieve substantive equality for all South Africans. The key role

of remedial measures in the transformation required by the Constitu-

tion was acknowledged by the Constitutional Court (Minister of

Constitutional Development & another v South African Restructuring and

Insolvency Practitioners Association & others 2018 (5) SA 349 (CC)

para 1).

The EEA requires designated employers in the public and private

sphere to address the inequality in the workplace through the applica-

tion of aff‌irmative action (s 13 of the EEA). The EEA identif‌ies the

benef‌iciaries of aff‌irmative action measures as black people, women, and

people with disabilities. The courts have couched the concept ‘black

people’ in wide terms to include Africans, Coloureds, Indians and

Chinese (Chinese Association of South Africa & others v Minister of Labour

& others (59251/2007) [2008] ZAGPHC 174). The black designated

002 - SA Mercantile Law - November 3, 2020

99

(2020) 32 SA Merc LJ 99

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