The effect of the implementation of Affirmative Action and Equal Employment in South Africa

The effect of the implementation of Affirmative Action 

and Equal Employment in South Africa

Mr.LS Makalela, LLB (Hons)

Faculty of Law, University of South Africa, South Africa Pretoria

Email: samsonnkgalabjesekhasepe@gmail.com/

Received: **** **, *** 

Accepted: **** **, *** 

Published: **** **, *** 

Copyright © 2020 by author(s) and 

Scientific Research Publishing Inc. 

This work is licensed under the Creative 

Commons Attribution International 

License (CC BY 4.0).

ABSTRACT

This research report examines the effect of Affirmative action which provide unequal distribution and implementation of labour, which create abstract ideology of equity and the pragmatic world of entrenched human interests which has been a major challenge in the post-apartheid reform process. It has been more than 20 years since the introduction of affirmative action into our legislation as healing mechanism against the inequality of the past. With the unemployment rate in the Country still alarmingly high and continued rising, the question we need to ask ourselves, is how effective and efficient implementation of affirmative action has been, has the implementation thereof failed those that was intended to help with the implementation of affirmative action, by looking at the current state of many government departments, state owned enterprises and municipalities throughout the country, whether is have been effective or not? Since the near collapse of Eskom, SAA, Denel and several municipalities throughout the country, the attempts of condemning affirmative action and cadre deployment by the ruling party (ANC) has been rife and growing stronger day by day. From 1990 to 2003, South African economy has lost 7% of its professional and qualified workforce, predominantly the highskilled whites. After some stability had been restored, during the high-economic growth and recovery under the leadership of former South African President Thabo Mbeki and Former Finance Minister Trevor Manuel, large exodus of skilled labour was triggered by the growing ineptitude of an administration that radically transformed departments and state-owned enterprises (SOE’s) into little more that facades.

Keywords

Affirmative Action; against good morals or policy; property; legality; employment equity; demographics; statistics; sunset clause; empowerment; workplace; representation; illegality in a workplace; international Conventions; independence principle; interlocutory injunction; United Nations on Labour Law; international standby practices (ISP98); equality.

1.1 INTRODUCTION 

1.1.1 Brief historical development, Role and Purpose of Affirmative Action 

From the National Parliament to the board-rooms of corporate South Africa, few issues are subject to dissent, different opinions and heated discussion were covered around the affirmative action. Recognizing that as a result of apartheid and other discriminatory laws and practices of the oppressive past, there were vast disparities in the field of employment, occupation and income within the national, provincial and local labour market and that those disparities created pronouncement of disadvantage for certain categories of people that they cannot be redressed simply by repealing the discriminatory laws. Therefore the goal of substantive equality within the setting of affirmative action is to remove the visible  and invisible barriers to employment equity. In his address to the ANC conference on affirmative action in October 1991, Former ANC President Nelson Mandela described it as follow; 

“The primary aims of affirmative action must be to redress the imbalances created by apartheid … We are not asking for hand-outs for anyone. Nor are we saying that just as a white skin was a passport to privilege in the past, so a black skin should be the basis of privilege in the future. Nor … it is our aim to do away with qualifications. What we are against is not the upholding of standards as such but the sustaining of barriers to the attainment of standards; the special measures that we envisage to overcome the legacy of past discrimination are not intended to ensure the advancement of unqualified persons, up to see to it that those who have been denied access to qualifications in the past can become qualified now, and that those who have been qualified all along but overlooked because of past discrimination, are at last given their due … The first point to be made is that affirmative action must be rooted in principles of justice and equity.

” The manner in which affirmative action has been implement and the effect thereof has been a heated topic for years. The effect of affirmative action on the economy and the fact that there is no indication of any form of exit strategy has been of great concern to a number of economists and academics alike... It is proposed that there is great need to amend the Employment Equity Act (EEA)5 to include a so called “sunset clause”, seeing that the current understanding with ongoing implementation of affirmative action has come under scrutiny and criticism and the continued implementation thereof, results in a never-ending obligation on employers to adhere to affirmative action and the legislation. In terms of the legislation, an employer will have to apply affirmative action for as long as the targets set out in the Employment Equity Plan (EEP) has not reached or, if no EEP has been drafted, until such time as the workforce is broadly representative of the demographics of South African society and must once again be applied if one of its designated employee’s services are terminated. 

This research will also contain a critical comparative study regarding the position in the United States of America (USA) and Malaysia. The South African situation will be compared with specific reference to the extended and contained implementation of affirmative in those countries as well after the initial implementation timeframes. This will be done in order to be able to reflect on the future of affirmative action in South Africa.

1. AIMS AND OBJECTIVES OF RESEARCH PROJECTS

This study aims to evaluate the current position of affirmative action in South Africa with regard to the intended purpose for the implementation thereof and the continued implementation thereof. This study will evaluate the South African system of affirmative action and consider if the regulatory framework is sufficient to achieve equality in the workplace without negatively effecting the economy. The major research question has led to the generation of sub-research questions stated as follows: 

1.1.1 What is the theoretical background of affirmative action and discrimination? 

1.1.2 What are the current challenges or problems encountered in the continued implementation of affirmative action policy in South Africa? 

1.1.3 What are the regulatory systems utilized in the United States of America and Malaysia regarding affirmative action? 

1.1.4 What reforms are necessary (if any) to establish an appropriate balance between the protection of those previously disadvantaged groups, the rights of those infringed by affirmative action, the employers and the economy? When addressing these questions, emphasis will be placed on the reason(s) for the need for affirmative action and more particular the continued need thereof. The focus will include the South African legislative instruments and the court’s interpretation and valuation thereof. A contrast will be drawn, comparing affirmative action in the United of America (hereinafter “USA) and Malaysia with South Africa, looking specifically at the duration thereof in those countries, the effect of affirmative action on the designated groups it was intended to assist and most important, the continuation of affirmative action in their countries. 

2. PROBLEM STATEMENT 

The Employment Equity Act (EEA) does not expressly state when the continued implementation of affirmative action will come to end, neither does it allow that once integration has been reached the implementation will cease, this creates confusion and leaves a lacuna in relation to the application of the Act. Consequently, there is a need which exits to amend the Act and include a clause with regard to the implementation of Affirmative Action. This short dissertation will explore and uncover the continued implementation of Affirmative Action with the purpose of providing the solution as guided by what has transpired in similar legislation in other countries, to achieve the research aims a stipulated in section 2 above. 

The research problem can therefore be stated as follows: 

2.1 Has the implementation of affirmative action been effective in eradicating the discrimination of the past, alleviating the huge unemployment problem in South Africa and is there an effective exit strategy in place if and when the advancement of the designated groups is achieved? 

2.2 Point of departure (approach to the research problem) The approach followed to research the problem statement comprises a legislative overview and case analysis on the different approaches that the courts have adopted in trying ……. (Resolve the lacuna created by the section 82(4). 

3. LITERATURE REVIEW 

The researcher will list all the sources and properly reference both the relevant legislation, case law, books, journal articles and internet sources. 

4. SCOPE AND LIMITATION OF STUDY

Although the issues addressed in this study with some of the most fundamental of human rights as stipulated in the Bill of Rights, namely the right to equality, the right to human dignity and the right to freedom to fair labour practice, occupation and profession, the focus will be on the application and interpretation of the limitation of those rights as a result of the constitutional remedy created by section 9(2) of the Constitution. This study will not contain a detailed study of the provisions of the Constitution but rather the effect of the implementation of affirmative action through the EEA and the effect thereof on the labour sector an economy of South Africa as a whole. 

5. OUTLINE OF CHAPTERS 

The structure of the dissertation will comprise out of five chapters. The first will be an introduction, followed by discussion of the historical foundation of affirmative action in South Africa and what caused the implementation thereof in post-apartheid South Africa as well as a discussion of the law that enacted the implementation of affirmative action. In the next chapter will look at the effect of affirmative action on the economy of the country and rate of unemployment specifically. In dealing with chapter 4, the future of affirmative action, a comparative study will be done regarding the implementation and effect thereof in America and Malaysia with discussion of the comparable legal systems. The last chapter will contain my conclusions and recommendations. 

Chapter 1: Introduction

1.1 Introduction

1.2 Research Questions 

1.3 Significance of this study 

1.4 Research methodology 

Chapter 2: The Effect of Affirmative Action on the South African Economy and the Effectiveness thereof to eradicate the disparities of the past. 

 2.1 The effect of affirmative action on unemployment and the South African 

 Economy 

 2.2 Cadre deployment and the ANC’s position on affirmative action 

 2.3 The Concept of “sufficiently qualified, fit and proper” 

 2.4 Efficiency and representation – striking a balance. 

Chapter 3: The implementation and effectiveness of Affirmative Action in other 

 countries 

 3.1 United States of America 

 3.2 Malaysia 

 Chapter 4: The future of Affirmative Action in South Africa

 4.1 Introduction 

 4.2 The Principle of “once empowered always empowered” 

                4.3 The “sunset clause” on affirmative action 

 Chapter 5: Conclusion and Recommendations

5.1 Conclusions 

5.2 Recommendations 

6. RESEARCH METHODOLOGY (LEGAL PARADIGM ADOPTED) 

a. Overview 

1. Firstly, using the analysis of the main problem experienced in applying techniques and method in disputes with the labour force and how it is done locally and internationally. A wide search was conducted to find relevant legislation, articles, court cases, and Books in various jurisdiction in our countries and international law. This study follows both an investigative and comparative approach, especially regarding the future of affirmative action in South Africa. The information presented in this study was taken from various literary sources which included both local and international legislation, local and international case law as well as international conventions on human rights. It further included a historical review, literature review, statistical review and systematic review. The international case law that reflects the specific views and opinions of the courts in America and Malaysia with regard to the subject. In addition to the legislation and case law, academic journal articles, books, papers and internet articles are reviewed. 

2. The researcher will digest information from different sources including case study of relevant material, by critically evaluating it and present conclusions in a concise and logical manner. When looking at the quality of the sources or a specific theory one need to Adjudge the nature, condition, values, equality ethical consideration of such a theory. According to Schurink11 theories are used during qualitative research as lens and spectacle through which a research problem is formed and data is gathered and analysed. Existing research sources are therefore analysed an interpreted in the context of the theoretical framework. 

3. From the title of this research proposal, it should be evident that within the field of law there are three elements at play, of which the natures and relationships with one another need to be established. This includes the Constitution, the legislation, and court cases. From legal evolutional perspective, the one flows naturally from the other. Since there are three steps in the argumentation, each element accordingly comprises a research objective. 

11 Schurink E “The importance of theorizing in proposal writing” 

4. An in-depth examination of individual cases and articles of chosen jurisdiction was done in attempt to extract legal principles relevant to this study. The issues commonly in dispute between two jurisdictions were compared in attempt to find solutions of the main problems explored in this thesis. The issues commonly raised in litigation seem to relate to unfair labour practice and often our courts are reluctant to prevent such practices. 

5. Finally, all relevant facts and arguments will be summarised and integrated towards the accomplishment of the overarching aim of the dissertation. 

7. RESEARCH DESIGN 

The research will assume a qualitative and interpretative approach. This implies an adherence to the view that the world of our legal experience is a complex multidimensional phenomenon that can be interpreted in various ways. The aim, however, is to articulate an understanding based not so much on sensory experience but on rational analysis and insight. As a student on NQF Level 9, the author is not required to “produce anything original” but to base his theses on the work of others. 

8. SUMMARY 

It has been more than 20 years since the introduction of affirmative action into our legislation as a hearing mechanism against the inequality of the past, with high unemployment rate in the country still rising, and the question we need to ask ourselves, is how effective has the implementation of affirmative action been, has the implementation failed those it was intended to assist, by looking at the current state of many government departments, state owned enterprises and municipalities throughout the country, the question to be asked is whether the implementation created parity in terms of its effectiveness at all? Since the near collapse of Eskom, SAA, Denel and numerous municipalities throughout the Country, the voice condemning affirmative action and cadre deployment is growing thick and strong. From pre-democracy 1990 to 2003, South Africa have lost 7% of its professionally qualified people – predominantly high-skilled whites, to fill the gap in skilled labour force. After some stability during the high – growth years of former President Thabo Mbeki and Former Finance Minister Trevor Manual, large exodus was triggered by the growing ineptitude of an administration that radically transformed many departments and state – owned enterprises (SOE” s) into little more than facades12. It is a well-established exception to the principle of autonomy where unfair labour practice in terms of implementation of affirmative action principle, that courts must intervene or provide remedy for all those are affected by such unlawful practice, as a possible exception in the chosen jurisdictions, will be looked at in more details. However, over the past few years a number of other possible grounds have also been acknowledged in the different jurisdictions. Further discussion of these possible exceptions falls beyond the scope of this thesis, and attention will only be given to the main exception, namely unfair labour practice and illegality. 

The South African Police Service, SAA, Transnet, the National Prosecuting Authority and various municipalities are among the examples where cadre deployment trumped productive knowledge in the name of transformation through the implementation of affirmative action. With this in mind it is imperative to reflect on the actual reasons for the implementation of affirmative action, studying the actual implementation thereof and the effect on those designated groups that it was to assist as well as the impact on the economy as a whole. It is clear from the information sourced that employment equity in the public sector was obtained as far back as 200813 and according to the latest report issued by the employment commission for employment Equity (CCE) for the period 2018/19,14 the only real equity problem in the private sector lies in the under representation of designated groups in senior management, the, report stated that stated that white people held 66.5% of top management positions by population group, the report further revealed other statistics which rendered a closer reflection of the national demographics, but according to Labour Minister Thulas Nxesi, the country is doing very bad with regard to affirmative action. This is a clear indication that affirmative action is still well and truly entrenched as policy in both government and the ruling party ANC. In assessing the comparative situation in both the USA and Malaysia, it seems that after decades of the implementation of affirmative action in especially the USA many of the states are repealing affirmative action legislation, but the US government, like its counterparts in both South Africa and Malaysia, is hesitant to bring affirmative action to an effective end. 

8.1.1 Firstly, the author’s own private library of text will be employed. Electronic media will also be utilized to download or purchase the relevant books, academic journals, e-books, videos, soundtracks and newspaper clippings. Moreover, Ms. Elsabe Nell (nelle@unisa.ac.za) of the UNISA library will be called upon. The author will also rely on the promoters for advice regarding relevant text. 

8.1.2 Working definitions of this dissertation 

9.1 ETHICAL CONSIDERATION 

This research is guided by UNISA policy consideration, integrity, and accountability. The research has undertaken ethical consideration in promoting an institutional ethos that is conducive to systematic knowledge development, critical discourse, intellectual curiosity, tolerance and a diversity of views within a framework of academic freedom. Maintenance of an environment for researchers in which they are autonomous, yet ethical in their research practice by espousing the Constitutional values of human dignity, social justice and fairness. It is fundamental to all forms of scientific research and is anchored in the values of “truth” and “honesty”. Trust by peers and public in the truth of research is exemplified by the responsible conduct of researchers, trust in their competence and trust in their devotion to do research according to internationally acceptable ethical norms and values. Promotion of international moral principles of autonomy, beneficence, non-malefice and justice. The research aims to ensure that, ethical and scientific intellectual culture prevails among the university’s employees and students and is followed in research practice. The rights and interests of human participants, institutions communities, animals and the environment are protected. This is particularly important where the information has been gathered has the potential to invade the privacy and dignity of participants and third, and where participants and third parties are vulnerable owing to their youth, disability, gender, age, poverty, disease, ignorance or powerless.

REFERENCES

9.1 BOOKS 

Dugard, J. 2005. International law: A South African perspective, Third edition. 

Lansdowne: Juta & Co Ltd 

Currie I & De Waal J “The Bill of Rights Handbook” 6th Edition (Juta 2013) 

Charlton G & Van Niekerk N, “Business & Economics” Juta & Co (1994) 

Du Toit D et al “Labour Relations Law: A Comparative Guide” 6th Edition (LexisNexis 2015) 

Giliomee H “The Afrikaans: Biography of a People” (Tafelberg 2013) Opperman Lewis H “Apartheid – Britain’s Bastard Child” (Reach 2015) 

Sparks A, “The mind of South Africa: The Rise and Fall of Apartheid” (Heinemann, London 1990) 

Van Niekerk & Smit (eds) Work @ Law 4th ed (LexisNexis 2017) 

9.2 JOURNAL ARTICLES 

McGregor M, “Blowing the Whistle: The Future of Affirmative Action in South 

Africa (Part 1), 26 SA MERCANTILE L.J. 60 (2014) 

Archibong U & Adejumo O, “Affirmative Action in South Africa we are creating new 

casualties?” Journal of Psychological issues in organizational culture, 3(1) 14-27 (2013) 

Dupper O, “Affirmative action in South Africa: Any lesson for Europe?” Vol 39 No.2. 

Ford CA, “Challenges and Dilemmas of Racial and Ethics Identity in America and 

Post-Apartheid South Africa” 43 UCLA Law Review (2013) 

Louw AM, “I’m not a number! I am a free man” Vol. 1 & 2 PER Vol. 18 No. 3 (2013). 

Louw L, The Journal of the Helen Susman Foundation Issue 57, May 2010 

McGregor M, “Blowing the Whistle: The Future of Affirmative Action in South 

Africa (Part 1), 26 SA MERCANTILE L.J. 60 (2014)

8.1 DATA SOURCES 

Academic books, journals, primary texts, commentaries, e-books, videos, soundtracks, newspaper clippings and personal consultations will be utilised. 

13 Milner C, “Affirmative Action in South Africa: From targets to empowerment” Journal of Public Administration, Vol. 44 No. 4.1 969 (2009) 977 

14 19th Commission for Employment Equity Annual Report 2018/19 

15 Mabusa E, “Commission Minister Thulas Nxesi to crack whip after employers fail to meet equity targets” New 24 (27 August 2019)

Authentication 

I, Samson Lehlogonolo Makalela, declare that this research is the fruit of my own intellectual acumen. To the best of my knowledge, due credit was given whenever the illuminating ideas of others were used in my work.  LLB (Hons) graduate, specialsed in Labour Law and Constitutional Law in the University of South Africa: Formal Education Directorate. He is responsible for co-ordinating enrolment and assessment with Institutions of Higher learning in South Africa. Mr Makalela comes from a strong background of educational management and policy background with a focus on educational management, leadership and policyimplementation.Affiliation:DepartmentofSouthAfricanPoliceServiceEmail: makalelas075@gmail.com/30485843@mylife.unisa.ac.za

  Wessels J, “10 Wasted years: The continued costs of cadre deployment, BEE and professionals Leaving SA” 

The Citizen 8 January 2019

The preamble to the Employment Equity Act 55 of 1998.

Charlton G & Van Niekerk N, “Business & Economics” Juta & Co (1994).