Affirmative Action and the New Constitution
15 April 1994
1. Why we need Affirmative Action
There’s an old saying: one person’s meat is another person’s poison. So it is
with affirmative action. For millions of South Africans affirmative action means
advance to a better life, a long overdue chance to come into their own and start
enjoying the good things the country has to offer. For others, particularly
those leading comfortable lives today, it signifies a new form of discrimination
and injustice, a vengeful form of juggling around with race quotas so as to
threaten their livelihoods and security.
We see this as a false choice. If well handled, affirmative action will help
bind the nation together and produce benefits for everyone. If badly managed, it
will simply re-distribute resentment, damage the economy and destroy social
peace. If not undertaken at all, the country will remain backward and divided at
The question is not whether or not to have affirmative action. Have it we
must, and in a deep and meaningful way. The issue is how best to handle
affirmative action, how to ensure that it is conducted in a principled and
We reject the idea of anything in the new democratic South Africa being meat
for some and poison for others. That was what apartheid was all about. Our whole
approach is that what is good for the majority can and should be good for the
minority as well, depending on the involvement of both in the process. The whole
country – rich and poor, black and white – wants peace, prosperity, progress and
justice. Our country is rich enough to ensure not meat for some, poison for
others, but fair nourishment for all.
It was the ANC who put affirmative action on the agenda. The time was the
middle 1980’s, the context preparation for change. One of the toughest questions
facing the Constitution Committee, formed under the leadership of Oliver Tambo,
was how to deal with the enormous inequalities created by apartheid.
Two options were being urged upon us. The one was to adopt a Constitution and
Bill of Rights that would scrap apartheid laws, but establish the constitution
as a Chinese wall against any attempt to alter the social and economic status
The other and opposite option was simply to require the new government to
confiscate the spoils of apartheid and share them out amongst those who had been
dispossessed. While this approach had the immediate attraction of correcting
historic injustice, it could not be realistically advanced in the context of an
anticipated negotiated transition to democracy. Furthermore, its adoption would
have led to capital flight, the destruction of the economy and international
isolation just at the time when the people would most be wishing to enjoy the
benefits of their ages-old struggle.
Our experience of living through and supporting the radical transformations
in Angola and Mozambique had taught us that sometimes the processes that brought
the greatest rewards to the poor and the oppressed in the short term, caused
them the greatest hardship in the long run. Real victory for the people meant
being able to deliver – not just promises and abstractions, but houses, jobs,
electricity, water, schools and clinics, real freedom and real choices in the
fullest sense. We wanted democracy to be associated with a better life and
peace, not with poorer living standards and civil war.
The solution we chose was that of affirmative action. The phrase had no Cold
War associations. It was sufficiently open to take on a specific South African
content and meaning, and yet concrete enough to have an unmistakable thrust in
favour of the oppressed.
Whatever form might emerge or whatever definition be given, everyone knew
what the essence of affirmative action was: it meant taking special measures to
ensure that black people and women and other groups who had been unfairly
discriminated against in the past, would have real chances in life. In
particular, it signified a concerted effort to enable them to overcome the
obstacles that had been put in their way, to develop their capacities to the
full and receive appropriate reward for their efforts.
Indeed, one of the lessons we had learned was not to start with rigid
definitions and then attempt to force reality into them. It was far more
productive to build up principled and functional processes and institutions to
deal with concrete situations, and then let the analysts tell us afterwards what
model we had come up with.
The most direct and vocal criticism of affirmative action came from the ranks
of those who had benefitted from privilege in the past. In essence, they claimed
that affirmative action was both unjust because it denied the merit principle,
and unworkable because it involved undue state interference in the economy.
It is not easy to deal with the merits. We have fought our whole lives
against looking at people in terms of race and gender and against those who
refused to look at us all just as human beings. The non-racial, non-sexist
democracy that we believe in and for which so many gave so much, is based on the
fundamental idea of equal citizenship and non-discrimination. We long for the
day when we can all regard ourselves simply as South Africans, celebrating –
even glorying – in the diversity of our cultures, backgrounds and life
experiences, but doing so on the basis of total colour- and gender- blindness.
Alas, we are a long way from there. Fly over any city, and you will see who
lives where and who owns what. Indeed, look at your fellow passengers, and you
would think you were flying in Norway (except there would be more black
passengers on a Norwegian plane). Shop anywhere, have your teeth attended to, go
to a cinema, be born, die – the inequality in life circumstances is virtually
Your chances of getting on and enjoying the good things of life depend least
on your talents, energies and skills, and most on which Group Area you were born
in (and which genitalia you were born with). How you fare later in life is
overwhelmingly fixed not by your determination or abilities, but by whether your
parents are called Macarthy or van der Merwe or Molefe or Mtolo or Mendel or
Marney or Moosa.
The inequality in South Africa did not just come to pass. It was the result
of generations of deliberate state action. That is what the Land Act, the pass
laws, race classification, job reservation and Group Areas were all about. One
of my first cases as a young advocate was defending Chris Hani’s father on a
charge that ‘being a native’ he did trade unlawfully. The exhibits in court were
candles and shoe polish, the merchandise of the poor which he had allegedly
tried to sell from a barrow in Langa Location. The prosecution had to prove that
he ‘was a native’.
All the central business districts of every town and village are today in
white hands because blacks were driven out by racist statutes. White farmers got
credit, loans and subsidies on a vast scale, while blacks got nothing. Black
schooling was segregated and inferior. Jobs were reserved by law and practice
for whites only.
The objective now is not to keep these odious statutes alive and reverse
perpetrator and target. We do not wish to replace one form of injustice with
another. Our task, rather, is to deal with the divisions and inequalities
created by the past in a new, effective and principled way. It is not only
apartheid we reject, but the methods of apartheid. Previously, governmental
intervention was dictatorial and intended to divide the nation, while the
measure we contemplate will be democratic and participatory in nature and be
undertaken with a view to uniting the nation.
Affirmative action is a matter of doing right, but it is more than that, it
is a question of survival. If our country and every region and city in it is
divided into manifestly rich and flagrantly poor areas, there will never be
social peace. Without opening up the economy and making entrepreneurial activity
more representative, the production of wealth in our country will take place on
a precariously narrow base.
We have to free the capacities of millions of people who have never had a
real chance to show their mettle. Widening the pool of candidates for any post
should lead to greater competence, not less.
A further consideration, backed up by international experience, is that
diversity in such key areas as education, law, health and the civil service, is
a value in itself. The admixture of life experiences, the organic cultural and
linguistic links with all communities and consequent sense of representivity,
enrich and improve the functioning of the bodies concerned.
We long for a truly South African civil service that looks like South Africa,
speaks all our languages, has natural contact with our citizens. We want an army
and police service that draw their best people from all our communities, so that
everyone feels this is ‘our’ service intended to protect all of us, not ‘their’
institutions designed to protect them.
For provisions in the new Constitution that deal with these matters, see
the Appendix generally.
2. Affirmative Action In Other Countries
There is no uniform model of affirmative action. In the USA, the issue is
highly controversial. It proceeds from the majority to a minority, has no secure
constitutional foundation, and gets caught up in electoral politics. We
certainly do not need to import all the complicated arguments specific to the
American situation into our debate. What most commentators seem to accept is
that although affirmative action in the USA has undoubtedly helped a black
professional class to grow and enabled women to advance their professional
careers, it has not significantly improved the lives of the mass of poor black
persons, nor in any major way counteracted sexual oppression.
In India, affirmative action has certainly helped members of the untouchable
and other oppressed groups. Yet it has been criticised for giving people a stake
in identifying themselves as members of a group simply because it gives them
material advantages – in this case, quota access to universities and state
A similar point has been made about affirmative action in Malaysia, where it
has helped in a significant and visible way to open up the economy and the civil
service to the majority Malay population, but at the price of encouraging a
communal rather than national consciousness.
3. Affirmative Action as an aspect of good government
In South Africa, we are dealing with a majority, not a minority, that has
been subjected not just to prejudice but to state-organised discrimination.
Affirmative action comes on to the scene at the same time as the vote. It forms
part of the new citizenship. Parliamentary democracy, the rule of law and the
application of the principles of good government will all action affirmatively
to improve the lives of the formerly disenfranchised majority.
There is a vast amount of injustice that is automatically corrected simply by
the application of normal and non-controversial principles of good government.
Indeed, this is the main form that affirmative action will take. This will be
the guarantee that affirmative action is grounded in the general advance of the
poor and oppressed, and does not become a mechanism simply for enabling a new
,lite to emerge. How tragic it would be if after generations of struggle the ANC
succeeded in doing what apartheid had never accomplished: legitimising
In its broader aspect, then, affirmative action is completely non-racial and
non-sexist. It means applying the universally accepted principle of equal
protection to all citizens.
At the moment, every white schoolchild gets three times as much spent on his
or her education as every black pupil. I do not know if white kids are three
times more stupid than black children, but, having been one myself, I think I
was the beneficiary of privilege rather than the recipient of remedial
treatment. The same applies to just about every other form of governmental
spending, whether on health or street lights or rubbish collection or farm
It is the haves rather than the have-notes who have been the main
beneficiaries of government expenditure. This is morally, socially and
constitutionally quite unacceptable. The principle of equal protection in
relation to the disbursement of funds means that in future the delivery of
services and access to utilities will be done on a per person and not a per race
Some things will be free for everyone, some things we will all have to pay
for equally. Possible we will have a means test which would ensure that certain
forms of public spending were targeted at those who most needed it. Otherwise,
if the rich want a little more, they can pay a little extra.
The basic entitlements to nutrition, education, health, shelter and
recreation must be equal for all. That is what governments all over the world
regard as one of their major responsibilities. Most post-World War Two
constitutions, including those of Germany, Japan and Italy, and nearly all
post-dictatorship constitutions, including those of Portugal and Brazil, make
the provision of equal living conditions for all citizens not simply a political
but a constitutional duty. Choice is extended, not reduced, when everyone is
guaranteed at least the minimum decencies of life. Affirmative action therefore
gives real autonomy to millions who otherwise would be compelled to spend all
their energies and thought on survival.
See Appendix sections on Equality and on Local
Good government also requires attending to the huge inequalities that exist
between one region and another. The migrant labour system was not a result of
poverty: poverty was created so as to produce the migrant labour system.
Indigenous peasant agriculture was deliberately undermined. When black farmers
outproduced whites in provisioning the diamond mines, the Cape Parliament took
special measures to knock out this competition. Special head and hut taxes were
imposed throughout South Africa with the express intention of compelling African
men to leave their ancestral lands and work for white mine-owners, farmers and
industrialists. These were anti-market, anti-choice mechanisms, and,
incidentally, they were introduced by the British not by the Boers.
The result is that today large portions of the Northern Transvaal are
underdeveloped and poverty stricken. The same applies to much of the Eastern
Cape, the Eastern Orange Free State and Northern Natal. Some regions became poor
so that other regions could prosper.
The internationally accepted method of correcting the disparities is through
regional equalisation. This means that public funding is deliberately directed
towards transferring support to underdeveloped areas. Note, these fiscal
transfers are not regarded as aid, but as constitutionally required fiscal
arrangements directed towards balanced national development.
We first heard the phrase regional equalisation in Germany, then in
Australia. Now we encounter it all over the world. It is desperately needed in
South Africa. Far from joining in the clamour for autonomy and aid, which some
of the regional ,lites support, the great majority of people in the regions are
demanding integration into national life and development. Cultural vigour goes
with participation in national economic life, not with existence as an isolated
Affirmative action in this context means special investment in rural
infrastructure. It signifies roads, schools, water, electricity, clinics,
telephones, cinemas and sports fields.
The same applies to the cities and towns. We have to follow through on the
principle of one town one tax base. Infrastructural development and services
should be the same for all parts. It is completely unacceptable that the
millions of people living in Soweto have to do without cinemas, theatres, parks
and bowling greens, while all these facilities are simply taken for granted in
the northern suburbs.
In the broad sense, then, affirmative action simply means taking appropriate
steps to normalise South African society. It amounts to applying the ordinary
principles of good government that should have operated all the time but which
have been suppressed because of racism and apartheid. It presupposes that we
start looking at our country as a country, and our people as citizens. It
signifies removing all the barriers, legal, physical and psychological, which
have been placed in the way of the majority coming into its own and enjoying
full citizenship and economic rights.
See Appendix sections on Regional Equalisation and on
4. Affirmative Action and anti-discrimination measures
Recently the Centre for Human Rights at the University of Pretoria organised
a conference on de facto discrimination, as day to day discrimination in
ordinary life is known. One of the speakers, a lecturer from the University of
the Western Cape, wishing to look at his best, went to a rather posh hairdresser
in a shopping arcade. The receptionist was blunt and unapologetic: we don’t do
ethnic haircuts here, she told him. If hair can be non-racial then his hair was
as about as non-racial as you can get. But his problem was not the texture of
his hair but the colour of his skin and the character of the receptionist’s
The fact is that my colleague had no remedy. Nor have people who are turned
away from hotels and restaurants because of discrimination. l~he internationally
accepted principle these days is that all facilities on offer to the public,
whether they are publicly or privately controlled, must be made available to the
public as a whole on a non-discriminatory basis. The same applies to access to
housing, schooling and employment.
Anti-discrimination law is common in modern democracies, and if we wish to
claim this designation for ourselves, we must ensure that the law is there so
that people going about their normal peaceful pursuits are protected from
insult, indignity and gratuitous inconvenience. If individuals wish to
discriminate in their private lives, that is their business: they can marry,
live with and entertain whomever they like. Yet if they choose to involve
themselves in undertakings that operate in the public sphere, then they must
respect the rights of all members of the public.
Customer choice may have a role to play in reducing these grossly offensive
forms of behaviour, but, unfortunately, racist exclusion is often seen as a
market bonus rather than a market minus. Unless there are law-governed means of
dealing with the badges and practices of apartheid humiliation, people will find
their own remedies, and the social and economic peace will be ruined.
See Appendix sections on Equality and on Special
5. Affirmative Action in different sectors
i. Balance in the armed forces, the police and the civil service
The name South Africa always appeared: the South African Defence Force, the
South African Police. Yet these bodies have never had a truly South African
character. They were controlled completely by one small section of the South
African population, and, in fact, saw their mission precisely as being to
frustrate the creation of a South African nation.
What we are trying to do is to South Africanise South Africa. This means that
we wish all public institutions and organs of public authority to possess a
truly South African quality. Within the framework of universally accepted
principles of good and fair government, they must look like and behave as South
If we accept, as scientists do, that brains and talents are randomly
distributed amongst individuals in all race groups, then any normal system of
recruitment and advancement would result in the army, the police service and the
public administration at all levels reflecting in its composition the
Yet at the moment all institutions have totally unrepresentative and
unbalanced structures. Again, this is not something that just came to pass. As
the agencies that enforced apartheid, they were the first to practice what they
enforced. Now, as the servants of democracy, they must be the first to achieve a
truly non-racial and non-sexist character.
The defenders of the new constitution must themselves be imbued with the
spirit of the constitution. The public, all the public, must have confidence
that they are dealing with a civil service and protected by an army and police
service that have a national character and a national vision
Diversity, competence and impartiality all go together and jointly promote
public trust and good functioning. A representative public service means that
the life experiences, talents and wisdom of all communities are drawn upon, that
all the languages are used, that there is not sense of it being responsive to
one or other section of society only. Each civil servant, each soldier and each
policeman or woman, then, does not serve only the community from which he or she
comes, but all people equally.
Only when these bodies are truly de-racialised can they be fully
professionalised. The restructuring of the public service is therefore not just
a question of doing justice to those who have been excluded; it is vital to the
survival and good functioning of the administration
See Appendix sections on Equality, Representivity
in the Public Administration and on Reconstitution of the
ii. Affirmative Action and land reform
In South Africa, dispossession is nine tenths of the law and nine tenths of
the land. Property rights will never be secure as long as the majority feel that
existing title has been achieved through wrong rather than through right. World
Bank experts insist that unless there is what they call rapid market-assisted
land reform, any future economic development will be precarious.
An active policy of restoring usurped land rights has to be followed. Steps
have to be taken to ensure that land is made available for housing the homeless
and as a source of productive activity for those who wish to farm. Any
affirmative action programme in this area will have to take account of the need
for appropriate, just and realistic compensation, on the one hand, and of
affordability and technical and financial back-up on the other.
See Appendix sections on Land.
iii. Employment Equity
Employment equity is the term used in Canada and elsewhere to connote
principles and procedures to ensure that the work force becomes representative
of the talents and skills of the whole population. Diversity is seen both as a
social good in itself, and as a functional advantage. In other words, employment
equity improves both acceptance and performance .
Employment equity requires that special steps be taken to search for and
encourage talented persons in all communities, develop their skills and promote
their advancement. The objective is to make the profile of the work force at all
levels correspond roughly to the profile of the surrounding community.
This does not require the lowering of standards. In South Africa we have
enough white male donkeys up there without adding black or female asses as well.
On the contrary, being able to draw on a wider pool of candidates and removing
the shields against competition which currently exist, should improve quality.
Present incumbents might or might not have made it on ability: they are
certainly not the unique archetypes of merit.
In any event, it is totally incorrect to assume that those who have already
suffered disadvantage want to transform themselves into advantaged (second
class). On the contrary, the masses want nothing but the best for themselves and
their children. Doctors must be able to diagnose, counsel and heal, whatever
colour they are, whatever the race of the patient. Germs know nothing about
so-called local standards. Nor do bridges, buildings or bank balances. Where the
social dimension comes in is not in relation to the quality of knowledge but the
character of service, and in respect of who the beneficiaries are, how
institutions are organised and how they relate to the community.
Thus affirmative action in relation to health means that black people and
women of all races will be encouraged to acquire the highest professional
medical skills. Yet it also requires the development of a comprehensive approach
to health that includes nutrition, clean water, housing, immunisation, a safe
environment and the encouragement of good habits of life, the training of
para-medics and health education workers; structuring the financing of medial
services in such a way as to ensure basic health care for all; special care for
mothers and children; voluntary control of fertility. All these are matters that
affect the poor more than the rich. Black advancement into the higher reaches of
medicine is a necessary ingredient for South Africanising the profession, but it
is not a substitute for measures to promote health amongst the majority of the
population. Both are necessary.
See Appendix sections on Equality which authorise
voluntary action and legislative provisions directed towards achieving
iv. Equity in Equity: Black Economic Empowerment
Nowhere is inequity greater in South Africa than in relation to equity. Black
people just do not have shareholders’ equity, that is, ownership of capital and
the decision-making power that goes with it. Black people are producers and
consumers but not owners.
When racist economic laws were repealed, black people had neither land to
serve as collateral, nor capital for investment, nor meaningful sources of
credit. Nothing was less free in South Africa than enterprise. Nothing obeyed
market principles less than the market.
The South Africanising of the South African economy means that all the
obstacles to the development of black entrepreneurial capacity have to be
removed and the full potential of all South Africans to contribute to wealth
creation has to be unleashed. This implies far more than placing a few black
persons on the boards (usually in non-executive positions). It means real
hands-on decision-making by black business people whose authority comes from the
share capital they represent.
We are totally against people using their position in the state to enrich
themselves – we do not wish to repeat the miserable experience of the Bantustans
which caused untold anguish to genuine patriots in those areas. Nor do we
envisage the state becoming an instrument of racially-based extortion and
patronage, so that friends are favoured, opponents disadvantaged, and bribes
accepted from any quarter.
We do expect government, however, both as employer and as contractor to take
steps to encourage capacity building amongst those who have been held back by
racist law and practice. This will be particularly important in relation to
infrastructural development in the townships and rural areas. The skills and
entrepreneurial capacity of people from the areas concerned have to be advanced
as part and parcel of the total project of development.
We have one recent example of what can be done. Money was made available for
the building of a school in a Transvaal township. Instead of hiring one of the
major construction firms to do the job, four local builders were employed.
Quality control was maintained by the architects. The builders, who previously
had only done small-scale house construction, were given on-the-job training in
relation to accounting and control of materials and labour. The work was
finished ahead of schedule, and what remained in the township was not only a new
school but the profits of the enterprise, and, above all, the skills and
confidence necessary for further medium-scale construction work.
The question of credit is also vital. The whole culture of loans and
investment is based on financial and psychological assumptions appropriate to
apartheid realities. As the context in which business is done changes, however,
so must the character of risk-taking. The poor are not just the rich without
money. The nascent Afrikaner capitalists were not Englishmen who spoke
Afrikaans. Black entrepreneurs inhabit a world with its own multiple dynamics
and networks. People from that world will have a much greater chance of
assessing risk and guarantees than those outside. If, we are told, capital
should be free to seek out its most enterprising and efficient utilisers, then
we have to maak ‘n plan in relation to ensuring its free circulation.
See Appendix sections on Equality which authorise
voluntary action and legislative provision directed towards achieving black
v. Black, Brown and Beige
“Black, Brown and Beige” was the title Duke Ellington chose for one
of his most magisterial compositions. His objective was to show the unity of
experience and interests of all persons of colour in the United States. It is
alarming to see affirmative action used in a contra affirmative manner to impose
exclusion on coloured people and South Africans of Indian origin.
Even if their status was relatively privileged compared to Africans they were
subject to various forms of discrimination and are entitled to be the
beneficiaries not the victims of affirmative action. They are still largely
treated as second class citizens. Few are to be found in the higher reaches of
national or local government, and they are virtually non-existent at the control
level of mining, banking and insurance, let alone in the civil service. the
police and the army.
The main thrust of affirmative action should be directed towards the
advancement of the African people who were by far the most oppressed by
apartheid. Yet this does not mean that the principles of diversity and capacity
building should not be used to promote as well the advancement of coloured
people and Indians in every sphere of life.
See Appendix sections on Equality and on Special
Bodies. Affirmative action as authorised by these sections, whether voluntary or
as a result of legislation, would have to be applied in a balanced way
consistent with the principle of overcoming disadvantage.
vi. Affirmative Action and Gender
When we speak about affirmative action inside the ANC, everybody knows what
you mean: dealing with the rights of women.
At first sight it should be easy to deal with racism and sexism in the same
manner. They have much in common – both involve stereotyping and the achievement
of advantage for one group on the basis of disadvantage for another. Yet the
sources of racial and gender oppression are very different. Racism operates in
the public domain and affects communities as a bloc. Sexism is less visible,
more intimate, more dispersed and more related to relations regarded as private.
Solidarity amongst its victims is less easy to achieve. It embeds itself more in
culture than in law.
Affirmative action to promote full enjoyment of human rights by women will
then base itself on counteracting the specific way in which the lives of women
are restricted by the accumulated practices of the past. They will also be
guided by the concrete demands which women themselves make for advancement.
The two processes – affirmative action to deal with racial oppression and
affirmative action to deal with sex-based oppression – can then be viewed side
by side to see points of overlap and areas of divergence. The modern tendency is
to view both under the general heading of promoting human rights, but to deal
with each in separate legislative provisions and to establish institutions which
take account of the specific character of each
In South Africa it is important that we acknowledge both the specificity of
each area and the overlap. This is the age of advance for all South Africans.
Freedom and dignity are indivisible, both for individuals and for society as a
whole. None should be afraid, not at work, not in the street. not a home.
Any comprehensive programme of affirmative action designed to deal with the
effects of sexism will accordingly have to be based on the lives women lead and
the choices women want to be able to take. All the equal protection and
capacity-building measures mentioned above will apply to all women as part of
the citizenry. Black women, who have been the main victims of social and legal
oppression, will be amongst their main beneficiaries.
At the same time, affirmative action in respect of gender inequality and
subordination will require much more: special measures to deal with physical
integrity and control of fertility, to guarantee maternity, birth rights and
child support, to secure protection against moral and physical abuse, to
acknowledge the value of housework and to discover ways and means of overcoming
social and political invisibility and marginalisation. Particular importance
will have to be paid to finding sensitive and effective ways of ensuring that
respect for cultural and religious rights is not used to deprive women of choice
and subject them to inequality and discrimination.
See Appendix sections on Equality, on Representivity
and on Special Bodies.
Application of the principles of equality and non-discrimination and the
undertaking of programmes of affirmative action as authorised by the
Constitution would go a long way to overcoming gender imbalances. This would
not, however, deal with sexism in everyday life. The equality principle needs to
be related to the dignity principle, and account must be taken of the lives that
women lead and what women claim as their right. One of the first tasks of the
Commission on Gender Equality could be to consider the adoption of a Charter of
Rights for Women which could be attached to the final Constitution as an organic
law enjoying special status. This charter could build on the Fundamental Rights
provisions dealing with equality, dignity, personal integrity and privacy. Its
objective would be to respond to the need set out in the Preamble to create a
new order in which there is equality between men and women so that all shall be
able to exercise their fundamental rights and freedoms.
vii. Conclusion: The Seven Siblings
The subject of affirmative action is a vast one, and its full dimensions in
South Africa are far from being acknowledged. It is quite clear that there is no
simple formula that can be applied to all situations. Affirmative action in the
army is one thing, in relation to land another, in respect of economic
empowerment something different again. Affirmative action with regard to
overcoming the effects of racism and sexism respectively, has large areas of
overlap, but also quite distinctive features.
Yet despite the differences, certain common themes can be found. In essence,
affirmative action represents a conscious effort to correct the racial and
gender imbalances in South African society in a principled and effective way.
Underneath the various modalities that might be adopted one can detect seven
basic principles. These may be referred to as the principles behind the
Responsibility: Not every form of injustice attracts affirmative
action. The special programmes of accelerated search, capacity building and
advancement must be well focused. In the light of South African realities and
priorities, there are two areas where a special responsibility to intervene
exists, namely in relation to the effects of race and sex discrimination. A
strong case can also be made for affirmative action in respect of disabled
people: it is increasingly being recognised at the international level that not
only must disabled people not be discriminated against, but that special
measures should be taken to ensure that obstacles to their free circulation in
society are removed and that employment opportunities are guaranteed.
We do not, however, want to become a nation of groups all walking around with
calculators doing head counts and demanding special programmes for this group or
that. We do not want the thrust of affirmative action to be lost in infinite
competitive fragmentation to secure more places for members of this or that
language group, or people born in this or that region, or persons who went to
this or that type of school.
Equity: The objective must always be to ensure basic fairness.
Affirmative action is about removing injustice, not about revenge, extortion or
patronage. This means that its goals and methods must be equitable.
Inclusivity: The processes should be as inclusive as possible. Those
most directly affected, whether positively or negatively, must have the greatest
say in how affirmative action should proceed. We do not want government steam
rolling decisions from outside, but we do insist that there be guarantees of
meaningful internal transformation. Trade unions and staff associations should
play a particularly important role in ensuring that the most efficacious and
least onerous solutions are found.
Security: The principles and processes must be securely located in the
constitution and legislation, and not be dependent on the subjective whims or
the fluctuating zeal of particular officials. Everyone must know where they
stand legally. The law should give every encouragement to voluntary forms of
affirmative action. The government itself must set an example, and require
appropriate affirmative action in parastatals as well as enterprises to which it
awards contracts. In the USA and Canada the courts and independent tribunals
have played an important role in establishing obligatory guidelines for
affirmative action in particular enterprises, and consideration will have to be
given in South Africa for having similar procedures if appeals to common sense
and social responsibility get nowhere.
Proportionality: The means used and the time frame must be
proportionate to the ends to be achieved. When ordering school desegregation,
the American Supreme Court used the phrase “all deliberate speed.” The
rapidity of transformation will be influenced by normal hiring and firing
practice, average rates of staff turnover, genuine needs of rationalisation and
legitimate interests of productivity. These factors cannot however be used to
block affirmative action. Search and capacity building must go on all the time.
A vague sense of social responsibility is not enough. The whole enterprise must
seriously commit itself to transformation
Accountability: The processes must be transparent, non-corrupt and
accountable to public opinion, Parliament and the courts.
Flexibility: Affirmative action works well if it is neatly tailored to
the particular situation it is intended to deal with and takes appropriate
account of the in-house culture of the enterprise being transformed (excluding,
of course, the culture of racism and sexism).
Constitutional Provisions Relevant To Affirmative Action
A. Provisions dealing with equality and affirmative action.
Note: Those that directly authorise affirmative action are in italics.
Whereas there is a need to create a new order….in which there is equality
between men and women and people of all races so that all citizens shall be able
to enjoy and exercise their fundamental rights and freedoms;……
Chapter 3 Fundamental Rights
(Note: These provisions will come into force after elections on 27 and 28
Section 8. Equality
- Every person shall have the right to equality before the law and to equal
protection by the law.
- No person shall be unfairly discriminated against, directly or indirectly,
and, without derogating from the generality of this provision, on one or
more of the following grounds in particular: race, gender, sex, ethnic or
social origin, colour sexual orientation, age, disability, religion,
conscience, belief, culture or language.
- a. This section shall not preclude measures designed to achieve the
adequate protection and advancement of persons or groups or categories of
persons disadvantaged by unfair discrimination, in order to enable their
full and equal enjoyment of all rights and freedoms.
Section 10. Human Dignity
Every person shall have the right to respect for and protection of his or her
Section 11. Freedom and Security of the Person
- Every person shall have the right to freedom and security of the
Section 13. Privacy
Every person shall have the right to his or her privacy …
Schedule 4 Constitutional Principles
(Note: These are general principles only. They will be binding on the new
Parliament when it drafts the final constitution for South Africa.)
I. The Constitution of South Africa shall provide for … a democratic system
of government committed to achieving equality between men and women and people
of all races…
Ill. The Constitution shall prohibit racial, gender and all other forms of
discrimination and shall promote racial and gender equality and national
V. The legal system shall ensure the equality of all before the law ….
Equality before the law includes laws, programmes, or activities that have as
their object the amelioration of the conditions of the disadvantaged, including
those disadvantaged on the grounds of race, colour or gender.
B. Provisions dealing with regional equalisation
155 (1) A province shall be entitled to an equitable share of revenue
(4) Allocations shall be determined in accordance with an Act of Parliament,
with due regard to the national interest and taking into account:
(b) … economic disparities within and between provinces …
Schedule 4 Constitutional Principles
A Financial and Fiscal Commission… shall recommend equitable fiscal and
financial allocations to provincial and local governments from revenue collected
nationally, after taking into account… economic disparities between the
provinces as well as the population and developmental needs…
C. Equal provision of services by local government
175… (3) A local government shall… make provision for access by all
persons residing within its area… to water, sanitation, transport facilities,
electricity, primary health services, education, housing and security within a
safe and healthy environment, provided that such services and amenities can be
rendered in a sustainable manner and are financially and physically practicable.
D. Representivity in the public administration
212 (2) [The] public service shall… (b) promote an efficient public
administration broadly representative of the South African community;
Schedule 4 Constitutional Principles
1. There shall be [a] … public service broadly representative of the South
E. Representivity in the Constitutional Court
99… (5) (d) In submitting its recommendations to the appointing authorities
… the Judicial Service Commission shall have regard to the need to constitute
a court which is… representative in respect of race and gender.
F. Reconstitution of the defence forces
Section 224 provides for the creation of a National Defence Force made up of
members of the South African Defence Force, the Defence Forces of the TBVC
states and the armed forces of the liberation movements.