The sparks that have been flying as a result of the decision of the new Western Cape Premier to appoint an all male mainly “white” cabinet to help her run her province reasonably and accountably, need to be placed in their constitutional context.
The provisions of section 132 (2) of the Constitution make it clear that the Premier is entitled to appoint between five and ten members of the provincial legislature to be the Executive Council of the province. There is an unfettered discretion for the making of the appointments in question and no quotas in respect of gender or race or class or anything, other than membership of the legislature in question, apply. It is for this reason that the complaint to the Equality Court by Cosatu against the composition of the Zille cabinet is doomed to fail. It is also difficult to imagine that the calls by the SA Communist Party for an amendment of the Constitution are likely to be heeded.
The foundational values of the Constitution include non-racism and non-sexism. This means that race and sex ought not to be used as a basis for discrimination. Section 9 spells it out: nobody, whether state or individual may unfairly discriminate against anyone on various grounds including race and sex. Discrimination is presumed to be unfair.
It is instructive to compare the composition of the provincial cabinets in other provinces with that of the Western Cape. Only two white women and no white men at all feature in the other eight provinces. In other words, the white men who are allegedly over-represented in the Zille cabinet, find themselves grossly under-represented, in fact not represented at all, in all the other cabinets in the provinces around the country. No approaches to the Equality Court have been made on their behalf, nor is it likely that any will be made. Quotas don’t feature, not in any shape or form.
“Representivity” is not even a proper English word. The notion of what is called “representivity” in our corridors of power has been carried too far in the politics of the new South Africa. It would be as well to pause and reconsider what the Constitution has to say on the topic.
The basic values and principles governing the public administration set out in section 195 of the Constitution include a provision that is very much in point:
“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.”
This does not mean that there is any need for a strict quota system, “broadly representative” means no more than that all South African people should feel that the public administration is theirs because their representatives, or personnel with whom they identify, are included in it. It would be silly to appoint unilingual Tshivenda speakers to administer social grants in the Eastern Cape, or ask unilingual isiXhosa speaking nurses to work in state hospitals in Limpopo. This is because the languages most widely spoken in these two provinces would suggest that Limpopo is a better place to employ Tshivenda speakers and the Cape a better place for isiXhosa speakers. The underlying idea of a “broadly representative” public administration is that it will be more responsive to the needs of the people if the ticklish task of proper service delivery is carried out by a public service to which they are able to relate.
During the Mbeki administration there were mutterings that the isiXhosa speakers were over-represented in the public administration, particularly its upper echelons. It remains to be seen whether any similar complaints about the “Zulu nostra” replacing the so called “Xhosa nostra” are leveled at the Zuma administration. The enlarged national cabinet itself can be regarded as broadly representative of the people of South Africa. It is too early to tell whether the public administration under Zuma will measure up to this constitutional requirement.
The only other field of endeavour in which a need to reflect broadly the racial and gender composition of South Africa has been identified in the Constitution is in relation to the appointment of judicial officers, all of whom must be South African citizens.
The provision in question is carefully worded by those who crafted section 174(2):
“The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.”
The notion “must be considered” is a far less demanding criterion than the more peremptory wording in respect of the public administration quoted above. It is indeed necessary that the Bench derive some of its legitimacy from its “broadly reflective” racial and gender composition, but the primary requirements are for appropriately qualified, fit and proper persons to populate the Bench. As it turns out, there has been a preponderance of male applicants for positions in the judiciary, while female applicants have been harder to find. Special training courses for those showing potential and aptitude to become women judges have been compiled in order to redress the ongoing gender imbalance on the Bench. Its old wall to wall “pale male” composition has transformed remarkably quickly in the first 15 years of the new dispensation.
Beyond the public administration and judiciary, there is no other provision in the Constitution requiring that race or gender be taken into account in our non-racist, non-sexist new order. This is why all four of our presidents have been men, most of our Bafana Bafana soccer stars black and most of the Springboks, white. Merit is a useful criterion for building a winning nation.
The current crying need to improve the level and quality of service delivery by the state would seem to suggest that it would be appropriate to focus on the other requirements for the public administration which include ethics, efficiency, economic and effective use of resources so that services are provided “impartially, fairly, equitably and without bias” in the words of section 195. This is the way in which, as the same section puts it, people’s needs will be responded to and the public administration will become accountable; and not a moment too soon.
Paul Hoffman SC
May 2009