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The problem with affirmative action

19 March 2010 Gareth Stokes
Gareth Stokes, FAnews Online Editor

Gareth Stokes, FAnews Online Editor

Affirmative action wasn’t ‘invented’ in South Africa. According to wikipedia.org the phrase was coined in the United States to refer to “policies that take race, ethnicity, physical disability or sex into consideration in an attempt to promote equal oppor

South Africa introduced affirmative action in the Employment Equity Act, 55 of 1998. The Act recognises “that as a result of apartheid and other discriminatory laws and practices, there are disparities in employment, occupation and income within the national labour market, and that those disparities create such pronounced advantages for certain categories of people that they cannot be redressed simply by repealing discriminatory laws.” We cannot fault the statement, except to observe that – all else being equal – the repeal of discriminatory laws would address labour market inequality over time.

Employment equity objectives

The Act was tabled to:

1. Promote the constitutional right of equality and the exercise of true democracy;

2. Eliminate unfair discrimination in employment;

3. Ensure the implementation of employment equity to redress the effects of discrimination;

4. Achieve a diverse workforce broadly representative of our people;

5. Promote economic development and efficiency in the workforce; and

6. Give effect to the obligations of the Republic as a member of the International Labour Organisation

An independent observer may conclude, after unpacking these objectives, that the Act contradicts itself. The Act eliminates unfair discrimination imposed on certain sectors of the national labour market by imposing similar constraints on another. The roughshod implementation of affirmative action policy defeats rather than promotes economic development and efficiency. Protections for minorities as espoused in Clause 15 (4) of the Act are largely ignored. The clause reads: “Subject to section 42, nothing in this section requires a designated employer to take any decision concerning employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups.”

Breaking rather than building

The perverse application of the Act is demonstrated in a landmark affirmative action case heard by the Labour Court. Law firm Denys Reitz observes: “The Labour Court found that the South African Police Services’ failure to appoint Captain Barnard, a white female, in the position of Superintendent of the Complaints Investigation Unit, in circumstances where the SAPS failed to fill the position at all, constituted unfair discrimination.” The decision will hopefully force designated employers to take complaints from non-designated employees more seriously in future. Companies cannot apply blanket ‘no promotion’ policies, must at all times apply principles of fairness, and consider the circumstances of individuals who may be adversely affected by their employment equity plans.

Barnard’s case will resonate with thousands of non-designated employees at public service companies, or state-owned institutions. Denys Reitz reports that Captain Barnard was short-listed as the best candidate for the position on two occasions, but denied promotion on each occasion because she is white. The National Commissioner ignored the interview panel’s recommendation to appoint Barnard. “What was interesting was that not one of the other short-listed employees from designated groups was appointed either, leaving the position unfilled,” observes the law firm.

The Labour Court found that the fact Barnard was not appointed on account of her race constituted discrimination. In failing to appoint a suitable black candidate to the post the National Commissioner failed to implement its employment equity plan in a fair and appropriate manner! Denys Reitz comments: “Having decided not to implement the employment equity plan by appointing a recommended black candidate, it was unfair in the circumstances not to appoint Captain Barnard who, according to the interview panel, was the best candidate for the job and who, as a female, was in any event a member of a designated group in terms of the Employment Equity Act.”

More of the same

We believe the Labour Court ruling reinforces Clause 15 (4) mentioned earlier. It also suggests a more appropriate application of affirmative action policies. We always understood affirmative action to mean choosing the best possible candidate first, and if there were numerous similarly capable candidates, to favour candidates from the designated group. South Africa cannot afford to leave critical positions vacant because the suitable job applicant doesn’t tie in with a companies’ employment equity plan. The Labour Court ordered the SAPS to promote Captain Barnard to the position of Superintendent (retrospectively from 27 July 2006) and to pay her legal costs.

We’ll give Denys Reitz the last word: “If there is not a suitable designated candidate, a failure to appoint a suitable member from a non-designated group will constitute discrimination – unless the employer can show that it acted rationally and fairly.

Editor’s thoughts: We want a South Africa where we never have to tick a race block on a job application, and we want a South Africa where everyone competes for jobs on a ‘skills only’ ticket. Will we ever be able to abolish the so-called reverse discrimination enshrined in the legislation such as the Employment Equity Act? If you have strong views on the topic, please share them below, or send them to gareth@fanews.co.za
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Comments

Added by AfircanLionHeart, 08 Jun 2013
The problem with AA and BEE is it drove 95% of our brain power out of the country along with the post apartheid crime situation. It is estimated that the average age of a qualified experienced journeyman is 54 yrs of age. With only 5% of our technical skills left, one has to ask "who's training the new, mostly black trainees?". So now despite training centers springing up all over, education facilities being changed, we are sitting with a sub standard technical workforce who are not wanted by the international community and unable to provide a decent service to our own country. This situation is highlighted in the new SA where we are constantly seeing the proverbial wheels coming off. Bridges falling, roads full of potholes, Load shedding and now the Medupi problem, to name a few. The Government would have done better if they had continued with reconciliation and rather given incentives to Industry and the the qualified brain power to train the disadvantaged. We would have seen a real boom, and not the superficial statistics they try to cover our situation up with. South Africa had the potential to be one of the most powerful countries in the world! Now we're just another typical African country!
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Added by shilla, 02 Mar 2013
affirmative action is disloyal such that a certain people within the state are in support of it whereas on the other hand others are weeping doe to it.
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Added by anon, 08 Nov 2011
All AA and BEE are doing is punishing a minority youth for the wrongs of their ancestors. You have a new new generation of whites that are being unfairly discriminated against. This hypocrisy should not be allowed to continue.
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Added by VANKQU, 04 Apr 2011
I THINK THE ONLY PEOPLE WHO WOULD SAY ITS UNFAIR ARE THOSE WHO KNOW HOW IT FELT DURING THE APARTHEID ERA AND ALSO THE MAJORITY OF BLACK PEOPLE .
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Added by DIRECTOR, 09 Mar 2011
I think people who know how it felt like during aparthied regime for the majority of black people and those underpriviledged wouldnt have said its unfair. The question came from my mind was that, WAS IS IT FAIR ON THAT TIME OF APARTHEID FOR UNDERPRIVILEDGED TO BE NEGLECTED? AA IS TRYING TO HEAL THOSE WOUNDS BUT PEOPLE WHO WERE HAPPY AND PRIVILEDGED SAY IT HAS TO GO, and that is what is not fair.
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Added by kabelo, 15 Jan 2011
Anyone who' s aware of the effects of apartheid will know that policies such as AA and BEE are absolutely necessary. Well if you do not agree, then tell how the hell are going to have an equal and fair country if one race group is stuck in the poverty while the rest prosper? I'll tell you, through a policy that will promote those who are stuck in poverty. Don't get me wrong I'm not saying AA or BEE are fair policies, all I'm saying is that they are necessary evils, so, should these policies be reviewed? absolutely but untill then, they have to happen in order for us to have a country whare skills are the only measure for employment , for how long you ask, for as long as takes. It could be a year or a century depending on how fast we are willing to change. We live in an unequal society and unless somebody comes up with a better solution to this problem, AA and BEE are our best bet.
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Added by Cleopatrajones, 25 Mar 2010
I understand that when it initially came about, AA was supposed to last for five years. Then another five years, and now it seems to never end. There are also additional demon policies like BEE which just exacerbates the problem. I think it had its time, whatever it was supposed to do, it should have done and now it's time to apply equal standards again because now the rest of SA are being prejudiced. furthermore due to incorrect application, as well as black ignorance and pride, many positions are being filled by embeciles who cannot even read and I think we can all see the results of that problem. Ideally, remove AA, BEE and all that nonsense, employ dedicated people on merit - to take this country further AND TEACH THE MASSES TO READ AND SPEAK ENGLISH, AND LEARN ABOUT REPRODUCTION, and the importance of earning an income and contributing to the general economy of your country. I think that will be far more effective than any unfair advantage policy.
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