Using race as a surrogate for disadvantage means BEE benefits the least disadvantaged
The question of equality has plagued thoughtful South Africans for decades, from the constitutional drafters in the early 1990s to “fallists”, academics and Zoom attendees of September’s DA policy conference. But different answers have emerged from those who midwifed the constitution, those who formulated and implemented the ANC’s position on equality, those who attended the DA policy conference, and those who dwell among the woke.
The fundamentals concerning equality emerge in the following provisions of the preamble to the constitution: “Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights … in which … every citizen is equally protected by law.” In the founding provisions of chapter one, it is stated that the new order is founded on values that include: “… the achievement of equality and the advancement of human rights and freedoms”. Furthermore, all citizens are equally entitled to the rights, privileges and benefits of citizenship; and [are] equally subject to the duties and responsibilities of citizenship.”
Non-racism and non-sexism are therefore foundational values of the constitution. In the Bill of Rights, the right to equality is first on the list: “Everyone is equal before the law and has the right to equal protection and benefit of the law. 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 and advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. Discrimination is unfair, unless it is established that the discrimination is fair.”
The section also outlaws unfair discrimination “… directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth”. Under section 7(2), the state is obliged to respect, protect, promote and fulfil the rights in the Bill of Rights, including the right to equality.ADVERTISING
The take-home message from the constitution is that “equality” is a right for all. Not an outcome or an opportunity, a right. Pursuing equality is not a pretext for “othering”, demonising or scapegoating. The sole criterion set for affirmative action measures (and the passing of laws to that end) is “disadvantage” through unfair discrimination. The purpose of such measures has to be to promote the achievement of equality of rights so that those disadvantaged by past unfair discrimination are liberated from that disadvantage to take their place as citizens with equal rights and responsibilities.
Significantly, and without a lot of qualifying legal wordage, the Bill of Rights immediately goes on to prescribe that: “Everyone has inherent dignity and the right to have their dignity respected and protected.” Respecting and protecting the dignity of all in the taking of affirmative action measures to promote the achievement of equal rights requires a fine balancing act that has regard to the rights of all citizens. Creating out-groups, scapegoating and according “original sin” to some are not permitted.
What has happened in practice since 1994 is that those who have suffered the least disadvantage have become the biggest beneficiaries of ANC largesse, while those who suffered the most disadvantage, namely the rural poor women who make up roughly a quarter of the population, continue to suffer. This unsatisfactory outcome has emerged due to the use of a device — a malignant stratagem in a nonracial society — in terms of which race and disadvantage are elided. Race is used as a surrogate for disadvantage.
There is a long line of cases in which the courts have allowed this to happen. The practice has spawned a plethora of BEE laws, codes of conduct, regulations and rules, quotas and preferences, the main beneficiaries being the politically connected black elite. The artificial and arbitrary race classifications of the universally rejected apartheid era have been kept alive — indeed embraced — via affirmative action processes and procedures.
Hendrik Verwoerd, the architect of apartheid, is chuckling in his grave as he observes the perpetuation of his arbitrary and artificial black, white, brown and Indian divisions. In the rush to create a black middle class artificially via the perversion of the promotion of equal rights, the rights of the truly disadvantaged have been at worst trampled, at best neglected.
According to reports on and interviews given at the DA policy conference, the party grappled with the metrics of disadvantage. The question was: how does a policymaker measure disadvantage for the purposes and aims contemplated in the constitution, properly interpreted? Using skin colour as a surrogate for disadvantage a quarter of a century and more after the abandonment of apartheid is hardly appropriate any more as it has the unfortunate side effect of perpetuating race classification, a definite no-no in a nonracial society. It also leads to curious results, as for example when the son of a judge president is given an “affirmative action” bursary to attend a posh school that has fee structures his father is well able to afford.
In commerce and industry, examples abound of the politically well-connected becoming the beneficiaries of measures that are meant to assist those disadvantaged by unfair discrimination. Tender irregularities, the “covidpreneur” phenomenon and much of the other corrupt activity is attributable to the sense of entitlement that has become endemic due to the policies that are in place.
The pandemic has brought into sharp focus the inequalities that persist and grow despite the measures taken, or, arguably, because of their skewed minimal impact on the lives of those who are truly disadvantaged and remain so despite the puny efforts of successive ANC administrations to promote the achievement of equality of rights.
Now that poverty, joblessness and hunger are stalking the land in the wake of the pandemic, the promotion of equality of rights for all is not a matter that can be left to simmer on the back burner. The patience of the poor is wearing thin. The lack of mass access to guaranteed rights such as safety and security, health care, adequate housing, education, social security, water and sanitation is a recipe for revolutionary unrest — a revolution of a sort not contemplated by the Luthuli House ideologues who still cling to the quaint notions of the national democratic revolution.
Pragmatism, honesty and meritocracy are needed at a time when the UN sustainable development goals are meant to be achieved within a mere 10 years. A return to the values of the constitution and a resolve to address inequality of rights in SA in line with the accepted UN precepts and sustainable development goals is indicated.
• Hoffman, an advocate, is director of Accountability Now.