As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Woolworths’ recent job adverts, requesting applications from black candidates, have resulted in – as Hayibo.com put it – “a wave of activism not seen since the SABC broadcast the Survivor finale out of sequence”. If only those outraged shoppers could find it in themselves to feel the same disgust for Apartheid and its continuing aftermath, South Africa would be a better place.
If only all those South Africans now expressing outrage at Woolworths for implementing an employment equity plan in terms of the Employment Equity Act had been similarly outraged at racial discrimination during Apartheid. If only they had taken part in boycotts of the South African Police Force and Defence Force and had boycotted all the companies who helped to prop up the Apartheid state.
Imagine that: Nelson Mandela would have been released from prison years earlier and South Africa would have become a democracy many years ago. At least some of the murder and the torture by the “security forces” would have been prevented. The continued systematic dehumanisation of black South Africans and the large-scale denial of educational and economic opportunities to black South Africans would also have been nipped in the bud far earlier.
Admittedly, the children of those brave South Africans who might have stood up against racial discrimination might today have been less financially and educationally privileged, as their parents would have had less time to build up their financial wealth. Their parents would also have had less opportunity to benefit from the unfair advantages provided to all white South Africans by the legally entrenched job reservation for whites and the formal and informal forms of affirmative action for whites. This means they would not have been able to provide their children with exactly the same educational opportunities and forms of financial assistance which they eventually were able to provide.
Sadly, although some white South Africans did take part in the struggle against Apartheid, most did not. A large majority of whites voted for the National Party and even those whites who voted for the opposition PFP seldom did anything tangible that would endanger their lives, their freedom, their comfortable middle-class lives in whites-only suburbia. (Wringing one’s hands and complaining about those awful Afrikaners and the way they were treating “our blacks”, while sipping on a gin and tonic, does not count.)
Woolies invoked the ire of Solidarity (and – if social media sites are to be believed – many, but thankfully by no means all, white South Africans) because they had indicated that only black South Africans need apply for certain jobs now available at Woolies. In terms of the Woolworths employment equity plan, black South Africans are vastly underrepresented in certain categories of jobs and to address this, black applicants are being targeted to fill these posts to try and achieve the company’s employment equity targets as set out in its employment equity plan. Woolworths has not placed an absolute ban on the appointment of white staff. Neither has it placed a total ban on the consideration of job applications from white applicants. All it has done is to target certain vacant posts in occupational categories where black employees are underrepresented and prioritised black applicants for appointment to these posts.
This is neither illegal nor unconstitutional. In fact, section 15(1) of the Employment Equity Act places a legal duty on any company with more than 50 employees to implement employment equity measures “to ensure that suitably qualified people from designated groups” (including blacks, women and people with disabilities) have “equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce”.
Section 15(2) further states that affirmative action measures must include measures to identify and eliminate employment barriers, including unfair discrimination; measures designed to further diversity in the workplace; making reasonable accommodation for black South Africans in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce; and measures to ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce.
Earmarking certain posts or certain advancement opportunities for black applicants in an occupational category in which black people are underrepresented is therefore mandated by the Act and therefore would seldom be deemed to be illegal (despite what Solidarity claims).
This does not mean that the Act does not place limits on the kinds of affirmative action measures a company may legally take. Thus, section 15(3) states that in order to ensure equitable representation of suitably qualified people in all occupational categories, an employer may give preferential treatment to black applicants and may also set numerical goals that it wishes to achieve. What it cannot do is to impose absolute quotas by refusing to appoint any whites to those positions – even in the absence of suitably qualified black applicants.
Section 15(4) also states that an employer is not legally required to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from a designated group.
These provisions must be interpreted and applied in the light of the Constitutional Court’s jurisprudence on affirmative action. Recall that affirmative action is explicitly mandated by section 9(2) of the Constitution and is not seen as an exception to a general right to be treated in exactly the same manner. Instead affirmative action is seen as an inherent requirement for the achievement of substantive equality.
As the Constitutional Court made clear, it is neither racist nor discriminatory to treat white and black applicants to a job differently if this is aimed at correcting the effects of past and on-going racial discrimination. It might well be racist and discriminatory to require that white and black applicants should be treated the same when this will further entrench and perpetuate patterns of discrimination, disadvantage and harm which were established during the Apartheid years to favour whites. This view of equality has consequences for how we view employment equity measures, which cannot be said to be unlawful merely because they exclude white applicants. As Ngcobo J stated in Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism and Others:
In this fundamental way, our Constitution differs from other constitutions which assume that all are equal and in so doing simply entrench existing inequalities. Our Constitution recognises that decades of systematic racial discrimination entrenched by the Apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it…. The measures that bring about transformation will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities.
Measures will always have to be fair, taking into account the need for affirmative action measures to address the effects of past injustice and to achieve equality. Employment equity measures that constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal of achieving equality would be threatened, would not be legally valid.
Thus, in Solidariteit on behalf of Barnard v SA Police Service, the Labour Court found that where an employment equity plan targets black South Africans for appointment to a post in an effort to attain equitable representation within a job category, this cannot be used as an excuse not to appoint white applicants in the absence of suitably qualified black applicants. Where a:
post cannot be filled by an applicant from an under-represented category because a suitable candidate from that category cannot be found, promotion to that post should not ordinarily and in the absence of a clear and satisfactory explanation be denied to a suitable candidate from another group.
This means that if Woolworths cannot find suitably qualified black candidates to fill the selected number of posts earmarked for redress, they will have to re-advertise the posts and open up the application process to people of all races. If they failed to do so and refused to appoint anyone to these posts, they would be imposing a rigid quota for these posts, which would be illegal.
But that is not what Woolies is doing, and the company is therefore acting within the law. Its employment equity plan is not placing an absolute barrier on the appointment or promotion of white staff, nor is it imposing rigid quotas that would exclude white staff from appointment or promotion. Many of its vacant posts are open to all applicants from all races and white staff are also not prevented from being promoted within the company.
Targeting particular posts in which black staff are severely underrepresented and reserving those posts for appointment of black staff does not impose a quota and does not constitute an abuse of power; neither does it impose such substantial and undue harm on those excluded from the posts that our long-term constitutional goal of achieving equality would be threatened.
Of course, there might be some white people who find it difficult to face up to the fact that we have all benefited from the Apartheid system and that we continue to benefit from the education and wealth acquired during the Apartheid years, and from the informal networks that still dispense opportunities to well-connected whites and protect and promote our interests informally. Some of the children and grandchildren of Apartheid beneficiaries might also find it uncomfortable to have to admit that they are continuing to benefit from their parents’ ill-gotten wealth, the educational and other opportunities it might have provided them with, and from their white skins, which give them access to these informal networks of members of the economically powerful white minority.
Might the vehement reaction in some circles against any form of race based affirmative action not perhaps be motivated by a guilty conscience and an attempt to sweep the past under the carpet? Should we see these angry denouncements of Woolies as no more than a futile attempt by some to avoid taking responsibility for their own collaboration with Apartheid or for the fact that they invariably benefited (and continue to benefit) materially from a system declared a crime against humanity