Blowing the whistle on affirmative action: The future of affirmative action in South Africa (Part 2)

• Jurisdiction: South Africa
• Pages: 282-306
• Author: Marié McGregor
• Date: 25 May 2019
• Published date: 25 May 2019

BLOWING THE WHISTLE ON AFFIRMATIVE

ACTION: THE FUTURE OF AFFIRMATIVE

ACTION IN SOUTH AFRICA (PART 2)

MARIÉ MCGREGOR*

Professor, Department of Mercantile Law,

University of South Africa**

[The f‌irst part of this article appeared in (2014) 21 SA Merc LJ 60–92.]

V PROGRESS WITH THE ACHIEVEMENT OF EQUALITY

(a) The Gini coefficient

The Gini coeff‌icient is used to measure the degree of inequality by way of

household income: the higher the coeff‌icient is, the less equally house-

hold income is distributed, and the lower the coeff‌icient is, the more

equally income is distributed in a country.

167

South Africa is one of the most unequal countries in the world, with

the top 10 per cent of the population accounting for 58 per cent of its

income and the bottom half for less than 8 per cent (and with a lack of

adequate measures to compensate for this).

168

During the last decade,

inequality has, in fact, risen, but poverty has declined from 38.4 per cent

to 24.5 per cent.

169

The most recent Gini coeff‌icient shows a general

f‌igure of 0.70 (compared to 0.59 in 1994, 0.63 in 2009, 0.7 in 2010 and

* BLC (UP) LLB (Unisa) LLM (UP) LLD (Unisa) Dip Insolvency Law and Practice (UP).

Professor, Depart-ment of Mercantile Law, University of South Africa.

** Part 1 of this article explained aff‌irmative action as part of national policy to redress

centuries of discrimination against Blacks and women. It analysed international instruments

on aff‌irmative action, the Constitution of the Republic of South Africa, 1996 and the

Employment Equity Act 55 of 1998 (EEA). It further set out the factors that still hindered

equality. Part 2 will investigate progress made with equality, interpret the debate on ending

aff‌irmative action, and provide some conclusions on the future of aff‌irmativeaction.

167

Thus, while a Gini of 0 refers to perfect equality (everybody in the population receives

the same income), a Gini of 1 refers to perfect inequality (one individual in the population

earns all): see Ben Turok ‘Redressing racial disparities requires racial consensus’ Business Day

(28 November 2013); Richard October ‘SA’s income inequality holds back the economy’

Business Day (6 April 2012).

168

Marna Kearney & Ayodele Odusola Realizing the Millennium Development Goals

through socially inclusive macroeconomic policies: Country Study Assessing development strate-

gies to achieve the Millennium Development Goals in the Republic of South Africa (2012) 74,

available at http://www.un.org/en/development/desa/policy/capacity/output_studies/roa87_

study_zaf.pdf, accessed on 23 September 2014; Sudhanshu Sharma ‘Rising inequality in

South Africa: Drivers, trends and policy responses’ Consultancy Africa Intelligence (16

October 2012) 1 at 5, available at http://www.consultancyafrica.com/index.php?option=com_

content&view=article&id=11, accessed on 27 May 2013.

169

However, poverty remains an issue and unemployment high.

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(2014) 26 SA Merc LJ 282

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0.62 in 2012) with 0.62 for Africans, 0.54 for Coloureds, 0.61 for Indians

and 0.50 for whites.

170

Poverty and high unemployment remain critical issues, because

reducing poverty had been modest and would have been untenable

without social grants. Even after accounting for the equalising role of

social assistance, income inequality remains high: nearly 70 per cent

of the poorest 20 per cent of South Africans were jobless in 2008, a

‘warning bell for social cohesion’.

171

(b) CEE Annual Reports

Commission for Employment Equity (CEE) Reports will not be investi-

gated in detail. They do not give a clear picture of representation: only

designated employers (in terms of the Employment Equity Act 55 of

1998 (EEA)) submit reports, big employers submit reports annually, and

small employers do so every second year. I will merely point out that,

generally, all these reports stated that the pace of transformation in

terms of race and gender at (particularly) the top and senior manage-

ment levels was too slow: most allocation, recruitment and promotion

opportunities still favoured whites, but good progress had been made by

white women and Indians at the professionally qualif‌ied and skilled

levels.

172

People with disabilities are under-represented at all levels, with

whites and males dominating.

VI THE DEBATE ON ENDING AFFIRMATIVE ACTION

(a) Introduction

Opponents of aff‌irmative action regularly raise the question of an end

date to aff‌irmative action.

173

They argue that unless a specif‌ic cut-

off date is set, aff‌irmative action has, at best, the potential to become

170

Murray Leibbrandt, Eva Wegner & Arden Finn ‘The politics for reducing income

inequality and poverty in South Africa’ Southern Africa Labour and Development Research

Unit Working Paper Household Income No 64 (2011) 2; David Masondo ‘Equality of income

the key to economic expansion’ Business Day (6 August 2012), stating that in 2011 about 48%

of the population earned less that R11 a day. The average coeff‌icient for South African cities

was 0.75 in 2010, the highest in the world, and almost twice above the international ‘alert line’

of 0.40, where income inequalities have negative social, economic and political effects.

171

Mariam Isa ‘World Bank warns on inequality threat to SA’ Business Day (8 August

2012).

172

See CCE Annual Report 2011–2012 iv, 33.

173

Saras Jagwanth ‘Aff‌irmative action in a transformative context: The South African

experience’ (2004) 36 Connecticut LR 725 at 728.

AFFIRMATIVE ACTION 283

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