Affirmative action?just got real

2014-09-08 06:45

The Constitutional Court has dealt those who resist transformation a deadly blow

The Constitutional Court ruling on Renate Barnard handed down last week was such a clinical defence of affirmative action that I perfectly understand why those who oppose it are now looking outside the country for some relief.

The main judgment was delivered by Deputy Chief Justice Dikgang Moseneke. There were three judges who supported his main finding to grant the SA Police Service (SAPS) right to appeal a Supreme Court of Appeal judgment, but for different reasons.

Justices Edwin Cameron, J Froneman and AJ Majiedt decided to rule on the challenges the implementation of a restitutionary measure in an individual case can raise, which Moseneke had decided was not necessary.

Justice Johan van der Westhuizen separately tackled the sensitive issue of responsibility to deal with the consequences of the past falling on those who played no part in the past.

Their findings dissected all main arguments that the likes of AfriForum and union Solidarity and their supporters have raised over the years as arguments against the principles of Affirmative Action and Employment Equity as well as how they are implemented.

The case arose after the national police commissioner declined the appointment of a white police officer, Barnard, to a senior post because her appointment did not meet the requirements of representivity and the post was not critical to service delivery.

Barnard challenged the decision, arguing that she was discriminated against because she was white.

Among other things, Justice Johann van der Westhuizen eloquently dismissed the case of young South African whites who argue that they should not be paying the price for the sins of their fathers, who practised apartheid.

Van der Westhuizen quoted former US president John F Kennedy: “It is the fate of this generation?...?to live with a struggle we did not start, in a world we did not make.”

Van der Westhuizen said history was inclined to target the innocent for retribution and restoration following gross injustices committed by those who thrived on the systematic violation of the human dignity of others.

“This often seems unfair. Clichés like ‘two wrongs don’t make a right’ express the perceived unfairness.

“So it may be a historical fact that the innocent often have to account for sins committed before they were born or able to act independently. However, ‘innocence’ of conduct by one’s ancestors or predecessors that in hindsight are widely recognised as morally repulsive does not mean that the innocent have not over time benefited from injustice. One can benefit from a wrong without being guilty of wrongdoing.”

This must have been difficult to swallow for AfriForum, which has cried “innocent victim” for years.

Justice Edwin Cameron remarked that this case shows how balancing important constitutional imperatives can give rise to tensions.

He was arguing that transformation is a painful process and its implementation may be difficult, particularly for those who previously benefited.

Quoting from a previous Constitutional Court judgment, Cameron said: “Transformation is a process. There are profound difficulties that will be confronted in giving effect to the constitutional commitment of achieving equality. We must not underestimate them. The measures that bring about transformation will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities. It may well be that other considerations may have to yield in favour of achieving the goal we fashioned for ourselves in the Constitution.”

Moseneke dealt with the argument often inherent in the opposition to affirmative action, that it leads to the hiring of incompetent people whose performance may negatively affect the provision of services.

Moseneke said the Labour Relations Act itself guarded against such an eventuality.

“I pause to underline the requirement that beneficiaries of affirmative action must be equal to the task at hand. They must be suitably qualified people in order not to sacrifice efficiency and competence at the altar of remedial employment. The act sets itself against the hurtful insinuation that affirmative action measures are a refuge for the mediocre or incompetent.”

And Affirmative Action and Employment Equity are not absolute, as Moseneke emphasised, they have to be rational and lawful in each case.

“There is no valid reason courts are precluded from deciding whether a valid Employment Equity Plan has been put into practice lawfully. It may not be harnessed beyond its lawful limits or applied capriciously or for an ulterior or impermissible purpose,” he said.

Van der Westhuizen also dealt with the perception that affirmative action can be a cold, cruel instrument that chases numbers and targets without looking at how it affects people in the process. The court asked if Barnard was treated as a mere means to reach an end on the basis of her race only.

“The calculation required to restore the dignity of many after decades of unfair discrimination, and the possible cost to the interests of individuals like Ms Barnard, was done when the Constitution was agreed on,” said Van der Westhuizen.

“The goal of equality is being promoted in this case through representivity. The national [police] commissioner has a duty to achieve equitable representation in SAPS....Ms Barnard’s appointment would have aggravated unacceptably the already significant over-representation of white women at level nine. The impact on her dignity is not excessively restrictive and, indeed, reasonably and justifiably outweighed by the goal of the affirmative measure.”

Van der Westhuizen also decisively responded to concerns that representivity will lead to a decline in efficiency.

“It is incorrect to assume that the ideals of representivity and efficiency are necessarily opposed. They are in many ways interdependent and mutually reinforcing,” he said.

“Representivity may increase service delivery and efficiency because it raises the legitimacy of a public institution in the eyes of the community it is meant to serve.

It could not have been better articulated. There is hope yet in our courts.

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