If we take as our starting point, as we must, that the new South Africa is a non-racist, non-sexist democracy in which equality is a guaranteed right and unfair discrimination is frowned upon to such an extent that discrimination on grounds of race or gender is regarded to be unfair (unless it is established that the discrimination is fair), it is easier to understand why the letter from the disabled engineer on the opposite page of the same edition makes more sense than Qunta’s piece.
The Constitution does provide for measures “designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination” in order to “promote the achievement of equality”. Qunta, like the ANC, seeks to equate “disadvantage” with “race” and “gender”. In so doing she falls into the trap of racially classifying people in a country in which all such classification has been abolished. It is also ludicrous to suggest that all women are disadvantaged by unfair discrimination. Rural black women who are subjected to the practices of customary laws in terms of which women are regarded as chattels have a claim to disadvantage, but the highly educated urban black elite of the nation can hardly say they are now disadvantaged by unfair discrimination, nor do measures designed to help them (rather than the poor masses) in any way “promote the achievement of equality”, irrespective of their gender. Imbalances resulting from the least disadvantaged becoming the most “affirmed” are evident.
Nor is it helpful to carp about the paucity of black management in the economy: this is as a direct result of the disastrous failure, both before and after 1994, to train adults, impart skills and educate the youth who used to be classified as black and are, since 1993, entitled to the equal protection and benefit of the law. Only 42,000 functionally literate black (African) matriculants emerged from the education system at the end of 2007 out of 1,2 million who started school 12 years earlier; it is anticipated that this number will fall once the latest batch of matriculants are tested for their literacy. If so few employable matriculants are produced by the system, is it any wonder that affirmative action in its employment equity guise is a failure? Trumpeting the “better” public sector showing is not anything to crow about: the public sector is dysfunctional in so many respects that service delivery failures give rise to about 10,000 protests per year. The lack of capacity of the public service is attributable, at least in part, to the ineptitude and what the Supreme Court of Appeal has described as the “terminal lethargy” of the staff employed by the state or illegally deployed in the public service by the ruling alliance.
Affirmative action is necessary and a constitutional imperative. It is supposed to “promote the achievement of equality”. If affirmative action measures for the benefit of the truly disadvanted were devised this would happen, via education, skills development and training, literacy programmes and viable, sustainable and constructive help for the poorest of the poor. Instead there is black elite enrichment and an ever widening increase is the gap between rich and poor. Jacob Zuma has correctly called for “balance” in the implementation of affirmative action policies. This is most easily achieved by tailoring “advancement” to the truly “disadvantaged”, not to gross, outdated and unconstitutional categories that have no place in a non-racial and non-sexist dispensation which is the foundation of the Constitution. It is time for a rethink of existing laws, measures, policies and practices.
Paul Hoffman SC
Senior Advocate of the High Court of South Africa