On perusing the file submitted by the petitioners, I noticed that the petitioners allege that the use of race classification by the South African government is unconstitutional and offensive to so-called coloured people.
The words “Black people" as defined in the Employment Equity Act, 1998, they say, creates confusion by defining “Black people" to include African, Coloured and Indians; and every South African citizen is an African, including White people and Chinese South Africans.
I concede that all South African citizens are African by virtue of being born and bred in the African continent. In the same vein, I also acknowledge that the Coloured group are black and as a result, they are part of the black people as prescribed by the Employment Equity Act, 1998 (EEA). However, we should not lose sight of both the past and the current South African context.
In view of this, it is important to remind everybody that Apartheid in law and in fact, systematically discriminated against black people in all aspects of social life. Black people were prevented from becoming owners of property or even residing in areas classified as “white". Although black people constituted nearly 90% of the landmass of South Africa, they were excluded and denied the right to equality based merely on their race – for just being black.
Black people were unable to access quality education; equal employment opportunities and were excluded from occupying certain occupations, in particular senior positions. They were denied access to established schools and universities; civic amenities, including transport systems, public parks, libraries and many shops were also closed to black people. Instead, separate and inferior facilities were provided, just because they were black. The deep scars of this appalling system, which was racially-driven are still visible in our society.
It is further submitted that Apartheid has left behind a legacy of inequalities in both the labour market and society as a whole. In the labour market, the disparity in the distribution of jobs, occupations and incomes, reveals the effects of discrimination against black people (Africans, Coloureds and Indians), women and people with disabilities.
It is acknowledged that these disparities are reinforced by the social practices and other factors outside the labour market, such as the lack of education, housing, medical care, transport and so forth, which perpetuated discrimination in employment against these previously disadvantaged groups.
Therefore, the elimination of unfair discrimination alone will not remedy this, but policies, programmes and other positive actions designed to redress the imbalances of the past are therefore crucial. In this regard, the prohibition of unfair discrimination and the commitment to the implementation of affirmative action measures are mutually reinforcing processes required to achieve “substantive equality" in order to give effect to the right to equality, as enshrined in section 9 of the Constitution.
It is further argued that, in order to ensure substantive equality, it is fundamental that, given South Africa's painful discriminatory past and inequalities, in particular amongst the previously disadvantaged groups, legislation geared towards the elimination of unfair discriminatory practices and promotion of equality are prioritized.
It is against this Constitutional backdrop that the EEA, was enacted to give effect to the fundamental human right to Equality as enshrined by Section 9(2) of the Constitution. The purpose of the EEA is therefore, to achieve equity in the workplace by –
Therefore, it is imperative that the EEA be interpreted in compliance with the Constitution so as to give effect to its purpose. In light of this context, I submit that the racial classifications outlined in the EEA are not unconstitutional because they are critical means to achieve substantive equality to redress the imbalances of the past created by the unjust racially-driven Apartheid system, which still continue to plague the majority of our people even today.
In fact, the various Courts, including the Constitutional Court, have ruled that the implementation of affirmative action measures as enshrined in the EEA is not unconstitutional. This implies that the racial classifications stipulated in the EEA and its regulations to achieve the intended purpose of the EEA of achieving equality and promoting equal opportunities for all, irrespective of people's race, gender and disability are not unconstitutional.
For example, in the Constitutional Court case of the Minister of Finance and Another vs Van Heerden 2004 (11) BCLR 1125 (CC) - the Constitutional Court ruled that for a measure to be upheld as being permissible and not discriminatory under section 9(2) of the Constitution, it must meet three standards: it must target persons or categories of persons who have been disadvantaged by unfair discrimination; it must be designed to protect and advance such persons or categories of persons; and it must promote the achievement of equality.
It is submitted that in this case, the Constitutional Court was clear that to address the issue of unfair discrimination and substantive equality, restitutionary measures or “affirmative action" measures, inclusive of the race classifications that accompany them, are integral components required to achieve the fundamental human right to equality.
Subsequently, the Constitutional Court has again in the recent judgement of 3 February 2021, in the case of the Solidarity Trade Union vs Minster of Labour CCT179/20, the Constitutional Court dismissed the application for leave to appeal filed by Solidarity on the basis that there were no reasonable prospects of success. It is significant to highlight that, in this case, the Solidarity Trade Union had lost the Labour Court case wherein they alleged that affirmative action measures, inclusive of the race classifications accompanying them as prescribed in the EEA were unconstitutional. It is again evident from this Constitutional judgement that both the affirmative action measures and accompanying race classifications as currently contained in the EEA are indispensable instruments to achieve equality and are not unconstitutional.
I therefore, concur with the arguments expressed by the South African Human Rights Commission in their response to the petitioners that the restitutionary measures such as affirmative action measures and the race classifications contained in the EEA and utilised in the various South African government policies and programmes, fall within the ambit of the Constitution.
I further argue that you cannot address the imbalances and the injustices of the past without recognising the fact that the Apartheid system was solely driven from a Race Hierarchy classification system, with Whites being on top, Coloureds and Indians in the middle; and Africans at the bottom.
In light of this context, it is important to identify who are the disadvantaged groups and the rightful beneficiaries of the restitutionary measures/ affirmative action measures. As such, the current race classifications contained in the EEA should be seen solely as a yardstick and an instrument critical to achieve substantive equality for all and not as a device to reinforce the Apartheid race discriminatory practices.
It is acknowledged that the government, private sector and the society as a whole will continue to struggle with the implementation of the affirmative action measures as everyone seeks to redress the imbalances and the injustices of the past and at the same time, striving to uphold the aspirational goals and values of the Constitution.
In view of this context provided, I urge the petitioners to reconsider their request for the removal of the race classifications in the EEA, if not, I then advise that they have a right to approach the Constitutional Court to provide clarity on this matter.
I thank you!
© 2019 - The South African Department of Employment & Labour