The Limitations of Definitional Reasoning Regarding “Quotas” and “Absolute Barriers” in Affirmative Action Jurisprudence as Illustrated by Solidarity v Department of Correctional Services

• Jurisdiction: South Africa
• Pages: 269-286
• Date: 27 May 2019
• Author: JL Pretorius
• Published date: 27 May 2019
• Citation: (2017) 28 Stell LR 269

THE LIMITATIONS OF DEFINITIONAL

REASONING REGARDING “QUOTAS” AND

“ABSOLUTE BARRIERS” IN AFFIRMATIVE

ACTION JURISPRUDENCE AS ILLUSTRATED

BY SOLIDARITY v DEPARTMENT OF

CORRECTIONAL SERVICES

JL Pretorius

BCom BA(Hons) LLB LLD

Professor, Free State Centre for Human Rights, University of the Free State

1 Introduction

In Minister of Finance v Van Heerden (“Van Heerden”),1 Sachs J observed:

“To my mind, where different constitutionally protected interests are involved, it is prudent

to avoid categorical and denitional reasoning and instead opt for context-based proportional

interrelationships, balanced and weighed according to the fundamental constitutional values called

into play by the situation.”2

Section 15(3) of the Employment Equity Act 55 of 1998 (“EEA”) allows

preferential treat ment, but excludes quotas from the ki nd of afrmative

action meas ures it endorses. Furthermore, section 15(4) of the EEA relieves

employers from the obligation to take any employment decision that would

establish an absolute barrier to the employment oppor tunities of white males

without disabilities. However, the EEA does not dene “quotas” and “absolute

barriers”. Instead, it is left to the courts to do so. A consider able number

of recent judgments3 took up th is challenge, amongst them Solidarity v

1 2004 11 BCLR 1125 (CC).

2 Para 140. See also Volks v Robinson 20 05 5 BCLR 446 (CC) pa ra 151, where Sachs J arg ues agai nst

a d efinitional approa ch in the context of the recognition of domestic partne rships, and in favou r of

a fu nctionalist one. He elaborat es as follows i n D Cornell, K van Marle & A Sachs A lbie Sachs an d

Transformatio n in South Africa. F rom Revolutionar y Activist to Cons titutional Cou rt Judge (2014) 110:

“While gram mar, classification and def initional reasoni ng pl ay an imp ortant role, much of their

[judges’] work today involves weig hing and balancing; applying broad va lues to narrow sit uations;

reconcili ng and harmonizi ng values that overlap, compe te, and collide in the same fa ctual setti ng; and

utilizi ng principles of propor tionality to co me to a conclusion.”

3 Solidarit y obo Louw v Sou th Africa Polic e Service 2012 6 BLLR 637 (LC); Munsamy v Ministe r of

Safety and S ecurity 2013 7 BLLR 695 (LC); St one v South Africa n Police Service 2013 1 BLLR 70 (LC);

Solidarit y obo Barnard v South Afr ican Police Service 2014 2 BLLR 107 (SCA); Sou th African Police

Service v S olidarity o bo Barnard (Poli ce and Prison s Civil Rights Uni on as Amicus Curiae) 201 4 11 BLL R

1025 (CC); Naidoo v Minister o f Safety and Secu rity 2013 5 BLLR 490 (LC); Soli darity v Depart ment of

Correctional Services; Solida rity v Depart ment of Correct ional Service s 2014 35 IL J 504 (LC); Minister

of Safety an d Security v Naid oo 2015 11 BLLR 1129 (LAC); So uth African Rest ructuring and In solvency

Practition ers Association v Min ister of Justice and Co nstitutional De velopment; Concern ed Insolvency

Practition ers Association NPC v Mi nister of Justice an d Constitutional D evelopment 2015 4 BLLR 329

269

(2017) 28 Stell LR 269

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Department of Cor rectional Ser vices (“Solidar ity”).4 In some ca ses, the

success of the challenge to the impugned af rmative action measures was

determined in ter ms of the denitional elements that the courts ascr ibed to

absolute barriers or quotas. By following the denitional or “categorical”5

route, the courts es sentially required the denitions to do the norm ative work

required t o balance the relevant con stitutionally protected i nterests. If Sachs

J’s obser vation above holds tr ue, however, t his would prove an imprudent

approach, lacking prope r consideration of context and circumstances.

In this contr ibution, Solidarity will be discussed as an example to assess the

aptness of the courts’ approa ch to quotas and absolute bar riers in af rmative

action litigation. The case is intere sting for a number of reasons. Firstly, as

it reached the Constit utional Court, it gives u s the benet of an authoritative

interpretat ion by the highest cou rt in the land. Secondly, the case concerned an

inter-designated group dispute, which again raises the question whether a stricte r

standard of r eview of afrmative action mea sures is called for in instances

where the complaina nts themselves are the victims of past discrimi nation.6

Thirdly, the majority a nd minor ity judg ments in the Constitutional Court

represent rather divergent approaches to the nor mative contextualisation of

afrmat ive action di sputes, which resulted in conicti ng appreciations of the

fairness of the exclusionary effects of the numerical t argets in the relevant

employment equity plan . Overall, the matter poi nts to the need for clarity on

the proper normative standard of review of restitutive measu res, which the

Constitutional Court left open in South African Police Service v Solid arity

obo Barnard (“Barnard” ).7

To set t he scene, the facts and judgments of the Solidarity case will rst

be stated in so far as t hey relate to the EEA’s provisions on quotas and

absolute barriers. In the subsequent analysis, I will then arg ue that the cur rent

jurisprude ntial approach poses three risks: It rstly dim inishes the ne ed for

exibility in t he design and implementation of employment equity plans to a

(WCC); Mgolozeli v Gaute ng Department of Fina nce 2015 3 BLLR 308 (L C); Solidarit y v Department

of Correctio nal Services (Police and Pr isons Civil Rights Union as A micus Cu riae) 2015 36 I LJ 184 8

(LAC); Solid arity v Dep artment of Co rrection al Service s (Police and Pri sons Civil Right s Union as

Amicus Cur iae) 2016 10 BLLR 959 (CC); Solidarity v Minis ter of Safety an d Security (Poli ce and Prisons

Civil Rights Unio n as Amicus Curiae) 2016 37 ILJ 1012 ( LC); Solid arity obo Preto rius v City of Tshwane

Metropolitan Municipality 2016 7 BLLR 685 (LC).

4 Solidarit y v Departm ent of Correc tional Ser vices; Solid arity v Dep artment of C orrection al Servic es

2014 35 ILJ 504 (LC); Soli darity v Depar tment of Corre ctional Serv ices (Police and Pris ons Civil Rights

Union as Amicu s Curia e) 2015 36 ILJ 1848 (LAC); Sol idarity v Departme nt of Correctional Ser vices

(Police and Priso ns Civil Rights Union as A micus Curia e) 2016 10 BLLR 959 (CC).

5 Minister of Fina nce v Van Heerden 2004 11 BCLR 1125 (CC) para 139.

6 Cf South Africa n Police Service v Solidarit y obo Barnard (Police and Pris ons Civil Right s Union as

Amicus Cu riae) 2014 11 BLLR 1025 (CC) par a 31:

“We must be c areful that the steps t aken to promot e substantive equality do not unwitti ngly infri nge

the dignit y of other individua ls – especially thos e who were themselves pre viously disadvant aged.”

S Liebenberg & B G oldblatt “The Int errelationshi p between Equal ity and Socio-Ec onomic Rights un der

South Af rica’s Transformat ive Constit ution” (2007) 23 SAJHR 335 349 have noted that th e deferential

nature of the Van Heerden tes t, and it s focus on the g roup being advantaged by, rather than the group

opposing the measure, may be problematic in circumstances where the non-favoured party also belongs

to a disadvant aged class.

7 2014 11 BLL R 1025 (CC). See in this r egard C Alber tyn “Adjudica ting Af firmative Action within a

Normative Framewo rk of Subst antive Equality and th e Employ ment Equity Act – An Opport unity

Missed? Sout h African Police Ser vice v Solidarit y obo Barnard ” (2015) 132 SALJ 711.

270 STELL LR 2017 2

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