The appropriate starting point for discussing the legislative and other measures actually taken since 1994 is the origin of them all: section 9 (2) itself. It is part of the equality provision set out in the Bill of Rights. This is a provision which is central to the achievement of the constitutional goals of the new dispensation in South Africa. The whole of the Bill of Rights is a cornerstone of our democracy. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. The state is enjoined to respect, protect, promote and fulfill these rights. It applies to all law and binds the legislature, the executive and all organs of state. Quite correctly so, the equality provision in the Bill of Rights takes pride of place as the first right recognized in it. This marks a dramatic move away from the discriminatory laws, policies and practices of the pre 1994 era in which the gigantic social engineering experiment called separate development by some and apartheid by most was attempted and failed as dramatically as, and soon after, the experiment of communism in the USSR and what used to be known as the Eastern Bloc also failed.
Section 9 (2) provides that:
“Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.”
This provision must be interpreted in its context. It is sandwiched between the basic equality clause familiar in many constitutions around the world that “Everyone is equal before the law and has the right to equal protection and benefit of the law” and further provisions preventing unfair discrimination by the state and anybody else. It is at the core of the affirmative action arrangements that have been put in place. There is a whole range of laws, codes, charters, policies and practices that have sprung up in order to attempt to put flesh on the bones that are set out in section 9 (2) of the Constitution.
The term “affirmative action” is a generic description of what is most latterly called “broad based black economic empowerment” and covers every manifestation of section 9 (2) measures from the first reconstruction and development programme to the latest charters still under construction. Speaking for this phenomenon in the first person and somewhat tongue in cheek, Vuyo Jack, in his Business Report column of 14 October 2007, put it well when he wrote of affirmation action:
“Not everyone welcomed my arrival. I was seen as a threat to some, but others saw opportunities. I have been called various names ranging from affirmative action, employment equity and skills development to black economic empowerment and now broad based black economic empowerment.”
The essential difficulty with the steps taken thus far, by the tripartite alliance which has, in effect, governed since 1994, is that in the whole complicated exercise it would appear that sight has been lost of the operative words of the empowering provisions in section 9 (2): they are “TO PROMOTE THE ACHIEVEMENT OF EQUALITY” If the achievement of equality is not promoted by the measures put in place, then it is self evident that the scheme of the laws and policies in place is a failure and is also unconstitutional for want of compliance with the requirement that they so promote the achievement of equality.
A secondary difficulty is the critical role that the concept “black” plays in the system which is now in place. It can be seen that the provisions of section 9 (2) make no reference to race, to blackness or to anything other than persons or categories of persons disadvantaged by unfair discrimination. Obviously there are black people who are such persons or would fall into such categories of persons. But to holus bolus place all blacks, however vaguely or inaccurately defined, into such a category is nothing short of racial classification and a reversion, in reversed order of preference, to the discriminatory practices of the past. All this has been magically put in place without any equivalent of the repealed Population Registration Act, which would obviously fall foul of the section 9 (1) prescription of equality before the law.
The third area of difficulty with affirmative action is its promotion across the board of the notion of “Representivity”. This seems to suggest that every last organization in the private sector, the non governmental organizations field and even among charitable institutions and sports teams has to be representative of the demographics of the country or face the disapproval and withdrawal of support of the government and its agencies.
Three points is more than enough for a lecture of this nature: the questions up for discussion are therefore, firstly, does affirmative action in the manner in which it is practiced in South Africa promote the achievement of equality, secondly, can the concept “black” be used as a catch-all for the intended beneficiaries of affirmative action and lastly what are the constitutional limitations of the requirement of representivity in the context of redressing the imbalances of the past.
The most obvious way in which to test the question whether affirmative action as implemented to date is advancing or promoting the achievement of equality, is to compare the state of equality as at 1994, when apartheid died, with the state of equality now. A suitable measure devised by economists for this purpose is called the GINI index. This measures how materially and economically unequal people in a given country are on the basis that the higher the index the less equal and the lower the more equal they are. The index in a society in which material benefits are distributed equally would be zero, in one in which all such benefits are bestowed on one person the GINI index would be 100. In South Africa the GINI index has moved in the wrong direction for a country committed constitutionally to the promotion of equality. The UN Development Programme has South Africa as the 12th most unequal country in the world with a GINI index of 57.8 The South African Institute of Race Relations gives the nation an even worse score of 65 in 2005, poorer than the 60 in 1996. Our top 10% of earners are 33 times better off than the bottom 10%. In Japan and Sweden the GINI index is at about 25 and there is only a disparity of six times between the top and bottom 10%.
Between 1996 and 2005 the number of South Africans living on less than a US $ a day – say R7,00 – increased from 1,9 million to 4,2 million. In percentage terms this is a rise from 4,5% to 8,8% of the population. Those living in what economists call “relative poverty” rose from about 17 million to nearly 22,5 million. Percentage wise this represents an increase from 40,5% to a little over 47%. Relative poverty is defined as a monthly income ranging between R870 for a singleton to R3,315 for a household of 8 or more people. By a more sophisticated measure called the human development index, South Africa has slid from 94th to 121st in the world between 2001 and 2006. The exacerbation of inequalities in our society as evidenced by this tsunami of poverty and its attendant misery is not an auspicious omen as Patrick Laurence, the veteran independent political analyst, to whom I am indebted for assembling these statistics, has observed.
Why has this happened when affirmative action measures, which ought to be aimed at promoting the achievement of equality, are in place? Two former presidents of the Black Management Forum have some ideas on the subject. Businessman Don Mkhwanazi and Lot Ndlovu, now vice chairman of the Nedbank Group, complain that government is not doing enough to encourage entrepreneurship. Ndlovu, drawing on his banking expertise, says that parastatal funding institutions need to be streamlined and rationalized. He is reported as remarking “They have unclear mandates, they have questionable levels of competence and they want to emulate banks.” He would like to add an ombudsman to the BEE system to focus on the viability of empowerment transactions and check their fairness and reasonableness. He sees recklessness in the current BEE deals and says “There is a tidal wave of greed in the transactions by black people. It is frightening. There is a lot of politics involved …and a sense of inadequacy by black people overrating themselves which militates against the growth of black business.” Mkhwanazi is even more outspoken accusing those who he calls “the usual suspects” the “looters and plunderers of our economy.”
A more pointed national debate is raging between those who deny skills shortages, led by Jimmy Manyi, and those who see severe skills shortages both now and in the near future. Manyi is the controversial current president of the Black Management Forum who also manages to somehow hold down the position of chair of the Employment Equity Commission without ever finding himself in a conflict of interest situation. Everyone from Manyi’s predecessor at the BMF, Nolitha Fakude, to the Solidarity trade union with a lot of solid researchers in between, is ad idem that there is a skills shortage and that Manyi’s characterization of the shortage as an “urban legend” is somewhat wide of the mark. Fakude is now the executive director for worldwide human resources at Sasol. Speaking at the 40th annual congress of the BMF in October 2007, Fakude lamented the significant decline in the number of higher grade mathematics learners. According to her, only 4637 black candidates matriculated with higher grade mathematics in 2002. This is attributable to teacher shortages in this area of expertise. Fakude indicated that in the past ten years 56% fewer students trained as teachers and only 15% of mathematics educators were suitably qualified. More than half of the schools teaching higher grade mathematics produced only 5% pass rates. Her stance is supported by Ann Bernstein, executive director of the Centre for Development and Enterprise, who describes the poor performance at most schools as “staggering.” In support of this opinion Bernstein notes that in 2004 not quite 40000 of the 468000 learners who wrote matriculation examinations opted to sit for the higher grade mathematics examination, with only 5% of all the candidates passing at the higher grade. Of the 5% only 1,5% were what she calls indigenous blacks. More than half of the schools were unable to produce a pass in higher grade mathematics by even a single learner.
It is indeed in the field of education that the promotion of the achievement of equality has failed most miserably. In the long term, no problem of the new South Africa, can not be solved by educating both our youth and adults. Fakude acknowledges this. She is reported as saying that there should be a focus on a sustainable response with the entire education and training value chain being addressed. She said there is a need to re-educate the black community about the value of artisans in the economy. At the same meeting Sipho Seepe, the director of Educor’s Graduate Institute of Management and Technology, pointed out that:
“We don’t have the courage to acknowledge that things are not well in our education system. Graduates graduate into unemployment. This leads some to stay longer in university than is necessary. We as providers of skills are not doing a good job. The Setas are not producing what we want them to produce.”
All of this is happening against the backdrop of a constitutionally enshrined right to basic education for all. The Human Rights Commission has reported in 2006 on the failure to deliver on this right, but lamentably the situation in schools remains that every second child entering the system does not make it as far as matric. These drop-outs are condemned to a life of poverty, unemployment and marginalisation.
The Solidarity Trade Union’s response to the denial of skills shortages is no less trenchant. Here are some of the facts and figures it relies upon to refute the assertion by Jimmy Manji that the skills shortage, as a constraint to economic growth in South Africa, is an urban legend:
Research conducted by the international accounting firm Grant Thornton found that 58% of firms surveyed in the medium-to-large sector said that the skills shortage is a particular problem.
Not to be outdone, Deloitte and Touche reported in June 2007 that 81% of firms struggled to find appropriate staff, with 76% saying that finding appropriate employment equity candidates for vacancies was problematic.
The Bureau for Economic Research at Stellenbosch University found that 47% of manufacturers in South Africa cited skills shortages as their most serious difficulty.
Ann Bernstein’s Centre for Development and Enterprise in a survey showed that 26 of the 40 companies surveyed specifically mentioned the skills shortage as a specific challenge to doing business. Half of the firms surveyed found it necessary to import skills from abroad.
Solidarity’s own research reveals that the country has only 10% of the number of artisans that it had 20 years ago. A 40% shortage of artisans is estimated. Worse yet: the average age of artisans is 54 years. As these artisans retire even more serious shortages of artisans can be expected. The technical skills shortage is illustrated by the fact the Murray and Roberts is prepared to offer a signing on bonus of R20,000-00 to new artisans it recruits.
In South Africa there is one engineer for every 3,200 people. In China the figure is 130, in Europe it varies between 250 and 300, in Australia there is one engineer for every 450 people.
So how does Mr Manyi get to his theory that there is no skills shortage? The answer probably lies in research published by the Development Policy Research Unit at UCT. This reveals that in 2005 South Africa had over 200 000 unemployed graduates of which number 36 000 had university degrees. 85% of this unfortunate group were black, mostly from Historically Black Universities. Professor Haroon Bhorat of UCT has observed that many black graduates lack what he calls “soft skills” such as the ability to communicate intelligibly in English and that those who are unemployed have qualifications that are not in short supply in the market-place. These unemployed graduates have no doubt made their plight known to Mr Manyi, hence his mistakenly calling the genuine skills shortage an urban legend.
The last word on this topic belongs to the Minister of Labour, Membathisis Mdladlana, who, speaking in September 2007, referred to the skills shortage as “a ticking time bomb.”
If, as is evidently the case, those disadvantaged by unfair discrimination continue to lack the education, the training and the skills of those who were not so disadvantaged, there is simply no sustainable basis upon which to promote the achievement of equality. Trying to force the process by pushing square pegs into round holes in “empowerment deals” does not assist. Much misery, “looting and plundering” (in the words of Don Mhkwanazi), faking and job hopping by those promoted too far too fast must follow. The intended beneficiaries of affirmative action sadly become its victims. The most prominent of these unintended victims of affirmative action is probably the Cape Judge President John Hlophe. Appointed as a judge straight from academia without any background in the practice of law, at the age of 35 when most lawyers are still embarking on the first tentative steps of life in practice, promoted too soon way beyond the level of his skill, experience and knowledge of the ethos of the relationship between Bench and Bar, he has brought shame, ignominy and disgrace upon himself and those in the institution he is meant to lead. The sad fact that he has not resigned is indicative of his lack of appreciation of just how miserably he has failed those who, with high hopes and good intentions, sponsored his ascent to high judicial office.
The conclusion to be drawn from this discussion, insofar as it impacts on the question of whether or not affirmative action is promoting equality as it is required to do in the constitution, is that the measures in place have signally failed to promote the achievement of equality. The poor have been getting more disadvantaged while the laws, policies and practices of the government have been put in place and implemented. This has led to tensions within the governing alliance with populists propagating a pro poor agenda seeking to take control of the levers of power that have been in the hands of macro-economic managers who are perceived not to have adequately addressed the promotion of the achievement of equality in their efforts not to kill the goose which lays the golden globalised eggs in our economy.
There is a distinct danger in perpetuating the levels of inequality which have grown during the early years of our new democratic order. Already the poor, who voted so enthusiastically in 1994, are signifying their disenchantment with the current order by staying away from the polls in their droves. The protests against poor service delivery are further indications that the depredations of excessive inequality will not be tolerated indefinitely. A showdown between the haves and the have nots will not necessarily be a race conflict and it ought to be avoided by swift and sensible policy adjustments. The trends toward conflict can best be dealt with by pro-actively addressing the inadequacies of the education system, including adult education. An overhauled education system in which all learners receive quality education is, in the long term, the best way in which to achieve a more egalitarian society in which all have equal worth as human beings. At present all too many recipients of the benefits of affirmative action are unhappy job-hopping fakers rather than useful members of society. Looting and plundering are not healthy phenomena. The “usual suspects” in BEE transactions stand accused of this anti-social behaviour. There has also been an exodus from the country of young skilled people who see no prospects for themselves amid the BEE looting and plundering.
It is a cause for great concern that teaching, a vocation if ever there was one, has become so unpopular as a career. It is unfortunate that many good teachers, who took the packages that were offered to them when the new brooms came to sweep clean, now languish in the private sector or in early retirement, when they long for the smell of chalk on blackboard and the opportunity to make a positive contribution to a better future for all.
The unacceptably high unemployment rate also exacerbates inequality. Job creation is a constructive way of promoting the achievement of equality. There would appear to be a lack of suitable strategies for implementation in this field. The introduction of a two tier labour system with greater flexibility for the young could help many unemployed school leavers into the workplace.
It is also axiomatic that the full enjoyment of all rights and freedoms depends to a large extent on the efficacy of the public service. Precipitate and unbalanced affirmative action in key public service departments and in the sphere of local government has often had a demonstrably catastrophic effect on the delivery of essential services. Counter-productively, a “terminally lethargic” public service increases inequalities in a state constitutionally dedicated to the full and equal enjoyment of all rights and freedoms.
Turning now to the second question: Can the term “Black,” however defined, be used as a catch-all for “persons, or categories of persons, disadvantaged by unfair discrimination” in the context of a non-racial democratic dispensation? The short answer is “No”. The Constitution is careful to keep away from the race classification of the past. The nearest it gets to the topic of race is in section 174(2) in which the appointment of judicial officers is under consideration; the section reads:
“The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”
It is instructive to contrast this provision, which is specifically designed to redress the predominance of pale male judges in the past, with the requirements of the Constitution for the appointment of public servants in general. These are in section 195. The relevant subsection (i) reads:
“Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation”
In this context the reference to the “imbalances of the past” must be interpreted as meaning the white dominated civil service of the apartheid era. It is however quite noticeable how a more subtle and sensible formulation is used for the appointment of the public administration, while blunt sex and race criteria are suggested for consideration when it comes to the appointment to the judiciary of appropriately qualified fit and proper women and men. As it turns out not too many women have put their hands up, and some of those who have made themselves available for appointment have regretted doing so. Steps are in train to fast track suitable women candidates in order to speed up the lagging rate at which women, who on the formulation the Constitution suggests for consideration should make up half of the Bench, are appointed. Men have done rather better in the numbers, but not necessarily in the quality, of appointments post 1994. In 2006 Judge Cachalia, now gracing the Supreme Court of Appeal, was heard to sternly warn of affirmative action chickens on the Bench coming home to roost.
In contradiction to the Constitution, the affirmative action legislation is unashamedly and unwarrantedly race based. Even the name of the latest version, The Broad-Based Black Economic Empowerment Act, says it all. What then can a Black be in a non-racist constitutional order? Here it is necessary to put aside fond and heart warming memories of the “I am an African” speech which then Deputy President Thabo Mbeki made when the Constitution was adopted in Parliament in 1996. Cold water has been thrown on the inclusive definition of “African” postulated in that speech. In the legislation now on the statute book the definition is ” ‘black people’ is a generic term which means Africans, Coloureds and Indians.” Whether “Africans” would include South Africans who were formerly classified as white (a la the Mbeki speech) is not spelt out, but the intention is clear from the preamble of the Act which almost ironically reads, in part:
“In order to promote the achievement of the constitutional right to equality, increase broad-based and effective participation of black people in the economy and promote a higher growth rate, increased employment and more equitable income distribution; and…so as to promote the economic unity of the nation, protect the common market, and promote equal opportunity and equal access to government services.”
Where do these race based notions come from? Certainly not from the founding values of non-racialism and non-sexism set out in section 1 (b) of the Constitution. Also not from the express provisions of section 9 (2) of the Constitution which refers only to persons and categories of persons disadvantaged by unfair discrimination. It is fallacious to suggest that all “black people” were or are so disadvantaged. Consider the wealth of the Soweto tycoon Richard Maponya, the power of the Matanzima clan and Lucas Mangope, the position of the King of the Zulus, the comfortable chambers of Judge President Hlophe. It is only with great difficulty that any of these and many more can be shoe-horned into any disadvantaged category. Yet this is precisely what the BEE legislation with its one colour fits all approach attempts to do. Section 3 is worth noting, it reads:
“Any person applying this Act must interpret its provisions so as –
(a) to give effect to its objectives; and
(b) to comply with the Constitution”
To achieve compliance with the Constitution the legislature should return to the drawing board and rethink its essentially racist, and therefore unconstitutional, approach to promoting the achievement of equality. Adam Habib, the deputy vice-chancellor of the University of Johannesburg, in his Polokwane briefing published on 26th October 2007 notes that: “…the redress strategy has implicitly assumed an equal playing field within the black population, which is simply not the case. Inequality among blacks has been rising for nearly two decades. The net effect is that more well-off sections of the black population monopolize the benefits of redress initiatives.”
It is manifestly unfair discrimination for the son of a Judge President to receive a university education bursary for the disadvantaged in preference to it being paid to the son of a poor shunter (of whatever pigmentation) killed in a railway accident.
How then did the message of unity and inclusiveness so unambiguously and lyrically spelt out in the “I am an African” speech in May 1996 fail to cultivate the broad South African identity it so compellingly proposed? According to a leading intellectual, Xolela Mangcu, who participated in a recent “Development Dialogue” in Cape Town: “What is happening today is a departure to nativism. An explanation for that is power. It is how people who come to power find ways to sustain themselves.” He suggests that: ” ‘I am an African’ no longer means we are all African. It means that I am an African and you are not.”
Speaking at the same occasion Ivor Chipkin, The HSRC researcher who wrote the book “Do South Africans Exist?” argued that blackness has come to mean two different things in South Africa. Post the adoption of the Freedom Charter in Kliptown in 1955 it was not simply a measure of race or culture, but was a commitment to certain kinds of democratic values including equality and tolerance. More recently a second measure of blackness has begun to emerge. According to this perspective, blackness is privileged both as a race and as a culture. It is the degree to which one acts upon native values. There is a sense that being black has a culture that is above universal and democratic values. Chipkin is concerned that if this second meaning of blackness is to win through it will pose a great danger to the consolidation of democracy in South Africa.
It is an instructive exercise to juxta-position these political views with the provisions of the Constitution, and even with the precepts of the BEE legislation. It is manifestly so that at this stage in the development of our democracy in South Africa simplistically equating blackness (however it is defined) with disadvantage is nothing more than a recipe for more looting and plundering. Either a “sunset” stipulation for certain affirmative action measures must be considered or the whole machinery in place must be adjusted to rid it of its unconstitutional features. The use and definition of “black” is at the root of much of the mischief in the failed attempts to legislate the promotion of equality. The achievement of equality remains a key constitutional goal. Properly conceived ways of doing so in a balanced fashion are palpably necessary in a society in which nearly half of the population is poverty stricken.
Finally there is the question of representivity across the board. It is so that the Constitution makes provision for a representative Bench and public administration. Unfortunately the legislature has attempted to take this further to require representivity in all spheres of life. There is no constitutional basis for doing this. It interferes with rights which are entrenched in the Bill of Rights. These include freedom of association and the right to enjoy cultural, religious and linguistic community life. The stage has already been reached at which over-zealous civil servants want to insist that charitable and church organizations have to be controlled by representative governing bodies before they can qualify for government subsidisation of the good works they do by running institutions for the benefit of the most vulnerable members of society, the young, the sick and the aged. The thinking behind this insistence is that it affords yet another opportunity for one or other of the “usual suspects” to secure a piece of “black economic empowerment”. Then there were the threats from parliamentary quarters to withdraw the passports of the Springboks because of the lack of representivity of the team that won the World Cup with 13 white giants and 2 black wings.
The open sesame to this is to be found in section 11 of the Broad-Based Black Economic Empowerment Act. It provides for the ministerial strategy which must –
“..provide for an integrated co-ordinated and uniform approach to broad-based black economic empowerment by all organs of state, public entities, the private sector, non-governmental organizations, local communities and other stakeholders.”
Once again there is a one-size-fits-all approach which fails to take cognizance of the requirements of the Constitution, in particular those of the Bill of Rights concerning freedom of association and cultural group rights. The government needs to reconsider its approach which can have awfully counterproductive effects, particularly in the welfare sector, where the state will not be able to manage if the ludicrous insistence on representivity is persisted in aggressively enough to persuade welfare organizations to close their doors. Had the threats against the Springboks been acted on “unity in diversity” would have become a dead concept in South Africa. Instead, as Nelson Mandela put it when he welcomed the victorious Springboks home, we are “back on the map.”
If there is governmental recalcitrance, a suitable Court challenge aimed at re-introducing the true spirit of the Constitution to the affirmative action arena may become necessary.
The real constitutional purpose of measures designed to protect or advance the disadvantaged is the promotion of the achievement of equality. This purpose is, on the basis of the state of the economy and the education sector, not being achieved with the measures now in place. The resort to informal and reverse race classification for the purposes of implementing affirmative action measures and the ominous new undertones to the concepts African and blackness do not serve the transformation of our society into a non-racial egalitarian democracy. The insistence on representivity across the board is a violation of the rights of cultural, religious and linguistic communities to associate freely and is accordingly unconstitutional. Only a representative Bench and public administration are called for by the Constitution. As the Constitution is the embodiment of the National Accord which gave rise to our new democratic order, the government of the day would do well to reconsider the constitutionality of its affirmative action measures with a view to rendering them constitutionally compliant.
Paul Hoffman SC
1 November 2007.