Affirmative action judgment might be wrong

For some middle class South Africans affirmative action is the single most pressing concern in their lives. It is therefore a pity that a recent affirmative action judgment from the Labour Appeal Court fails to provide clear guidance on the legal limits of affirmative action measures in the workplace. The judgment ignores the Constitutional Court’s affirmative action jurisprudence, and is disappointingly incoherent.

Forget about widespread hunger and unemployment; police brutality, torture and even murder; endemic misogyny, homophobia, racism and xenophobia; an education system that condemns the majority of South Africans to a life without any meaningful opportunities; or even ever increasing corruption and abuse of power by the rapacious political and business elite. Instead of focusing on these shocking problems, some middle class South Africans (who are mostly, but not exclusively, white) focus obsessively on affirmative action, which they seem to view as the greatest injustice perpetrated in modern day South Africa.

This group firmly believes that affirmative action “punishes” so called “innocent” young whites, whose relative privilege has absolutely nothing – nothing, I tell you – to do with apartheid and the concomitant privileges their parents or grandparents reaped at the expense of black South Africans. They would like us to believe that their parents all worked very hard for their money (and some must have worked almost as hard as the black people who dug up the gold, tilled the fields and built the roads – at a pittance of the pay of their white bosses). They tell us that their parents and grandparents were not advantaged in any way, despite the fact that they never had to compete with the overwhelming majority of South Africans for access to educational opportunities, jobs and property.

Most of us who do not leave comments on the News24 website (and mostly avoid reading those comments in order to retain our sanity), know that this fantasy has nothing to do with reality. We know that it has everything to do with a delusional and self-justificatory avoidance of reality, based on either a deeply sublimated sense of guilt about the fact that all white people benefited from apartheid and that most did little to overthrow the regime that enforced it (voting for the PFP, donating old clothes to the women working in your house and once helping out at a soup kitchen in a township do not really count), or a sense of entitlement that springs from the deeply embedded but often unacknowledged sense of cultural and racial superiority.

It is therefore very difficult to have a sensible and nuanced discussion in South Africa about affirmative action and its constitutionally mandated limits. But in my view it is important to have such a discussion. How else will one be able to mount a plausible and necessary defence of race-based affirmative action while pointing out that support for structured, principled, race-based affirmative action must not be confused with support for the corrupt or nepotistic abuse of affirmative action by racial essentialists?

It is in this context that I wish to explore the potential weaknesses of the Labour Appeal Court judgment of judge Mlambo (judges Davis and Jappie concurring) in South African Police Services v Solidarity.

The Labour Court had previously found that Mrs Barnard had been discriminated against in contravention of section 6(1) of the Employment Equity Act because on two occasions she was not promoted despite the fact that she was recommended for the job and in both cases the post was not filled.

In the lower court, it was established that where a post could not be filled due to the paucity of suitable candidates from an underrepresented category, promotion to a post should not ordinarily and in the absence of a clear and satisfactory explanation be denied to a suitably qualified candidate from another group. This finding was based on a reading of section 6(2) of the Act (which confirms that it would not be discriminatory to take affirmative action measures in the workplace), read with section 15(3) of the Act (which states that affirmative action measures could include preferential treatment and numerical goals, but had to exclude the imposition of rigid quotas).

The lower court ruling did not prohibit an institution from implementing affirmative action measures which reserved targeted posts for designated groups (as Woolworths had done recently). Neither did it prohibit an employer from ever leaving a post open instead of appointing a white candidate. It did find that in the absence of a good explanation to justify its decision, a blanket refusal to promote a white candidate even where no suitably qualified black candidates were available for appointment would not comply with the Employment Equity Act, read with the right to equality in the Constitution.

The lower court’s flexible pro-affirmative action stance, seems about right.

Nevertheless the Labour Appeal Court seemed to have rejected this general approach, perhaps because it second-guessed the appointments panel and the National Commissioner who had all decided not to appoint anyone to the position. Because the court turned a factual disagreement into a legal one, it made bad law. That is perhaps why the re-interpretation of the facts led the court to a rather absolutist view on affirmative action which cannot easily be squared with the Constitutional Court jurisprudence on the matter.

The Labour Appeal Court correctly emphasised the fact that affirmative action was not an exception to equality but a requirement for its achievement, stating that:

our Constitution, and in particular section 9 thereof, read as a whole, embraces for good reason a substantive conception of equality inclusive of measures to redress existing inequality. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.

However, disappointingly, the Labour Appeal Court took a rather stark and simplistic view of the limits of affirmative action by arguing that the “implementation of restitutionary measures cannot be made subject to an individual’s right to equality” as this would defeat the very purpose of having restitutionary measures in the first place. It seemed to suggest – quite wrongly, in my view – that if a court demonstrated any concern for those excluded from the benefits of affirmative action measures, a court would always have to find that those measures “fall short” of the demands of non-discrimination, “due to the reality that there will always be adverse effects on persons from non-designated groups” and would have to nullify the affirmative action measures.

The judgment criticised the lower court because Mlambo mischaracterised that court’s decision as one in which the prohibition on non-discrimination would always trump the need for structured affirmative action measures. But this is not what the lower court actually held. Instead the lower court had held – in line with the Constitutional Court jurisprudence – that a balance must always be struck between the various interests at stake in affirmative action cases.

On the one hand, one could not have too strict a test for affirmative action as this would derail well devised and targeted affirmative action measures aimed at transforming the workplace. On the other hand, affirmative action measures which in effect placed an absolute bar on the appointment or promotion of all white candidates in the workplace would diminish the human dignity of white applicants and would not be constitutionally permissible.

The Constitutional Court struck this balance by developing a specific test for valid affirmative action programmes. This test developed by the Constitutional Court does not completely ignore the interests of those who were not benefiting from an affirmative action programme. Yet the Labour Appeal Court ignored this jurisprudence and suggested that a court must choose: either it must always invalidate affirmative action measures because these would be found to be discriminatory, or such measures must always be deemed legal – no matter how harsh and permanent the effect of the measures on the previously advantaged might be.

For the Appeal Court there seemed to be no middle ground. But this approach cannot be squared with the Constitutional Court’s jurisprudence on affirmative action and I would not be surprised if that court overturns this decision.

The Constitutional Court has stated on several occasions that when one is dealing with a structured affirmative action programme one would first ask whether such a programme constituted an abuse of power or imposed such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened. Impose rigid quotas would do exactly that. This test strikes the balance between recognising the need for targeted affirmative action measures while also recognising that the measures could not permanently exclude white people from advancement in the workplace.

The problem with the judgment of the Labour Appeal Court is that it failed to deal with this jurisprudence. Instead it questioned the decision of the authorities not to appoint any of the black applicants “who were by all accounts appointable”. It found that the black candidates had an unquestionable claim to be appointed over Barnard in keeping with the Employment Equity Plan.

It cannot be argued on the facts of this matter that the appellant’s Employment Equity Plan seeks the appointment of only black employees irrespective of other criteria. One of the criteria set out in the plan is the suitability of candidates. That to me suggests that should a black candidate be unsuitable that candidate will not be appointed. This is also defined in National Instruction 1. Clearly, as was aptly argued by counsel for the amicus, the Employment Equity Plan does not sanction mediocrity or incompetence. Manifestly this was not the case with the two black candidates in this case.

I would guess that the Labour Appeal Court’s re-interpretation of the facts stood in the way of a legally sound judgment, forcing it to develop affirmative action jurisprudence that cannot be squared with the affirmative action jurisprudence of the Constitutional Court.

It must be said that if the Labour Appeal Court’s view of the facts are correct and if one or more of the black applicants were indeed appointable and should indeed have been appointed, then Mrs Barnard would not have a legal leg to stand on. This is because where a black candidate is appointable and when that appointment would advance the numerical goals of an affirmative action policy, then there could not be any legal problem with an employer selecting the appointable black candidate over the white candidate who might have better qualifications on paper.

A problem will only arise when the employer refuses to appoint a white candidate in the absence of any appointable black candidates and where the employer has no valid justification for this refusal to appoint the suitably qualified applicant.

The problem in this case was that for reasons that are unclear, no one wanted to appoint the black applicants to the post for which Barnard applied. The original interviewing panel stated that to appoint the black candidates would compromise service delivery. They left the position open, instead of appointing Barnard. The Labour Appeals Court obviously disagreed with this assessment but it is unclear on what basis they did so. To get around the problem, it second-guessed the Police Commissioner and developed affirmative action jurisprudence that cannot be squared with the more nuanced approach taken by the Constitutional Court.

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