Will affirmative action ever end?

By far the most compelling argument against affirmative action – I think – is that it may entrench racial categorisation and racial thinking in our society and so will lead to a kind of “reverse apartheid” in which whites will suffer from relentless discrimination until the end of time.

In reaction to my previous posts on the topic, one contributor to the Legal Brief website make exactly that point, while another wants to know whether affirmative action will ever end.

These are fair and difficult questions, which deserve answers, so I will give it a shot.

For me, the starting point for any discussion on affirmative action must be the equality clause in the Constitution. This clause refers to the “achievement” of equality, signalling that – despite our sleek and progressive Constitution – equality is something still to be achieved in the future. It underlines that equality is not about the equal treatment of all people who are similarly situated, but about the achievement of a more fair society in which everyone would be able to enjoy the rights in the Constitution equally – something that is not going to happen in the near future.

In the Constitutional Court judgment in the case of Minister of Finance v Van Heerden, Deputy Chief Justice Dikgang Moseneke said that the Constitution imposes a positive duty on all state institutions – including the judiciary and the executive – to take steps to promote the “achievement” of equality. This means affirmative action will not only remain constitutionally permissible, but will also remain constitutionally required for quite some time to come.

Does this mean we are stuck with a race-based programme until the end of time? What happens when – like in India – affirmative action has been in force for 50 years and we are confronted with what they quaintly in India call
”the problem of the creamy layer”. (For example, after three generations of affirmative action, the children and grandchildren of those who benefited from the Indian affirmative action programmes still qualify for affirmative action places at universities and are described as the “creamy layer” on top of the black coffee!)

Reading the judgment by Moseneke, I think the CC’s jurisprudence potentially answer this question in a surprisingly subtle way. Moseneke says that we must look at affirmative action contextually, which means as the context changes, so will the legal rules around affirmative action. This means that as soon as we are unable to say that the “overwhelming majority” of persons from a specific racial group have been disadvantaged by unfair discrimination, we will get to the end of constitutionally mandated affirmative action solely based on the race of the individual. In that way, we will avoid the “problem of the creamy layer”, and may be forced to think of affirmative action in, say, class terms..

Moseneke explicitly stated that the long-term goal of our constitution is to achieve a truly “non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity”, then continues:

Central to this vision is the recognition that ours is a diverse society, comprised of people of different races, different language groups, different religions and both sexes. This diversity, and our equality as citizens within it, is something our Constitution celebrates and protects. In assessing therefore whether a measure will in the long-term promote equality, we must bear in mind this constitutional vision.

This means that a slavish and bloody-minded adherence to racial classification in perpetuity will be constitutionally obnoxious. Meanwhile, it is also clear that the Constitution places limits to existing affirmative action. As Moseneke indicated, an affirmative action measure “should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened”.

I suspect the way in which many government Departments have implemented what they called affirmative action probably would not comply with the Moseneke test. The tragedy is that debates about affirmative action so easily deteriorate into discussions of these abuses and not of the principle itself.

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