A retrospective evaluation of affirmative action – Taking stock after twenty years

• Citation: (2022) 28(1) Fundamina 104
• DOI: https://doi.org/10.47348/FUND/v28/i1a3
• Published date: 16 November 2022
• Pages: 104-139
• Author: Tenza, M.E.
• Date: 16 November 2022

104

https://doi.org/10.47348/FUND/v28/i1a3

ARTICLES

A RETROSPECTIVE EVALUATION

OF AFFIRMATIVE ACTION – TAKING

STOCK AFTER TWENTY YEARS

ME Tenza*

ABSTRACT

Afrmative action measures were included in the Employment Equity

Act 55 of 1998 as a vehicle to drive the process of transformation

in employment. South Africa has had afrmative action measures for

more than twenty years, with the expectation that their implementation

would bring equality in employment. The question that arises is whether

designated and other employers are making progress in achieving

the goals of the Employment Equity Act through the implementation

of afrmative action measures in their workplaces. The Employment

Equity Report of 2020–2021 states that there is an improvement in the

employment of people from designated groups, despite some barriers.

This shows that the country is slowly making progress towards

achieving the goal of equality in employment. Despite the reports by

the Commission for Employment Equity, this contribution argues that

the implementation of afrmative action is very slow.

Like other programmes designed to change the status quo, the

implementation of afrmative action measures has not been without

* LLB LLM LLD (UNISA). Senior lecturer, School of Law, University of

KwaZulu-Natal, Pietermaritzburg.

(2022) 28(1) Fundamina 104

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A RETROSPECTIVE EVALUATION OF AFFIRMATIVE ACTION

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challenges. Factors, such as the unwillingness on the part of designated

employers to implement afrmative action measures; lack of appropriate

implementation plans in many workplaces; and fear or resistance

to change by people occupying senior positions in employment, all

contribute to the slow progress in implementing afrmative action

measures. In addition, the contribution argues that the limited denition

of designated groups is not in line with the Constitution and with

international law obligations implied by the International Convention

on the Elimination of All Forms of Racial Discrimination (ICERD). The

contribution recommends that the Employment Equity Act be amended

to comply with the Constitution and ICERD to accelerate the process of

change in employment. As a step in the right direction, the Employment

Equity Amendment Bill of 2020 empowers the minister to set numerical

targets for certain sectors.

Key words: afrmative action; inequality; discrimination; transformation;

progress; criticism; barriers; sunset clause

1 Introduction

The history of South Africa is characterised by racial segregation

and discrimination, inequality and socio-economic disparities. These

have negatively affected a wide range of sectors, including that of

employment.1 For example, during apartheid, black workers were not

afforded senior or managerial positions and were paid less than their

white male or female counterparts, merely because they were black.2

Section 9 of the Constitution of the Republic of South Africa, 1996

(hereafter “the Constitution”) contains the equality clause, which is

aimed at addressing all forms of unfair discrimination. The equality

clause states that “everyone is equal before the law and has the right

to equal protection and benet of the law”.3

In particular, section 9(4) states that “national legislation must

be enacted to prevent or prohibit unfair discrimination”. As a result,

the Employment Equity Act 55 of 1998 (hereafter “the EEA”) was

enacted, containing afrmative action measures to drive the process

of change in employment.4 The aim of afrmative action measures

is to ensure the equitable representation of designated groups in all

1 City Council of Pretoria v Walker 1998 (3) BCLR 257 (CC) para 34.

2 Du Toit et al 2015: 653.

3 Section 9(1) of the Constitution of the Republic of South Africa, 1996.

4 Section 15 of the EEA.

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ME TENZA

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occupational levels in the workplace.5 Section 1 of the Employment

Equity Amendment Act 47 of 2013 denes designated groups to

include–

black people, women and people with disabilities who:

(a) Are citizens of the Republic of South Africa by birth or decent;

or

(b) Became citizens of the Republic of South Africa by naturalisation–

(i) Before 27 April 1994; or

(ii) After 26 April 1994, who would have been entitled to acquire

citizenship by naturalisation prior to that date but were

precluded by apartheid policies.

After more than twenty years of afrmative action measures being

implemented in the Republic, the question is whether employers

are making headway in ensuring that people from designated

groups have equal employment opportunities and are equitably

represented. The Employment Equity Report of 2020–20216 reveals

some progress towards the achievement of the goal of equality

despite some barriers to its implementation. After receiving the

report, the Ministers of Employment and Labour called on the

cabinet to urgently review legislation and regulations, stating that

employment equity needs to be seen as a catalyst for change.7 The

South African Human Rights Commission (hereafter “SAHRC”)

reported that the lack of progress in implementing afrmative

action was attributed to the denition of “designated groups” in

the EEA,8 which was not in compliance with constitutional and

international law obligations.9

This contribution argues that factors, such as the lack of

appropriate implementation plans in many workplaces, as well as

fear or resistance to change by people occupying senior positions in

employment, affect the pace of the implementation of afrmative

action.10 The proposed amendments in the form of the Employment

Equity Amendment Bill of 2020 (hereafter “the EE Bill”), if made

5 Idem s 2.

6 21st Commission for Employment Equity 2020–2021: passim.

7 Liedtke 2021.

8 See s 1 of the EEA, which denes beneciaries of afrmative action measures

as “black people, women and people with disabilities”.

9 South African Human Rights Commission 2018: 67.

10 Bosch 2007: 3. See, also, Ochuka 2018: 20.

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