Ralph Mathekga

Reassess affirmative action policy

2018-09-17 08:17
Thousands of Trade union Solidarity members take part in a protest at the Sasol plant during a shutdown against a black empowerment scheme at the chemical giant in Secunda, South Africa. (Gianluigi Guergia, AFP)

Thousands of Trade union Solidarity members take part in a protest at the Sasol plant during a shutdown against a black empowerment scheme at the chemical giant in Secunda, South Africa. (Gianluigi Guergia, AFP)

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The energy and chemical giant Sasol is involved in a standoff with its white workers after the company decided to adopt a share scheme that only benefits black workers to the exclusion of their white counterparts. 

This has seen white workers striking against what they regard as an unjustified scheme which, according to trade union Solidarity, constitutes unfair racial discrimination against white workers. 

The Constitution of South Africa's explicitly prohibits unfair discrimination on the basis of race, among other grounds. Sasol's affirmative action share scheme is aimed at advancing those who have been historically disadvantaged, hence it is a targeted measure that excludes others (i.e. white workers) from benefitting. 

It is not the first time that a scheme such as this has been adopted to benefit those who have been previously disadvantaged. Some years ago, around 2003, Parliament adopted a pension scheme whereby black political office bearers (as historically disadvantaged groups) would receive more money from the fund while they contributed less. Consequently, white office bearers who would have contributed more to the fund would receive less pay out. 

Like most affirmative action plans, the pension fund was challenged in court on the basis that it unfairly excluded whites from benefitting. 

The Sasol case is part of a growing trend where affirmative action is being challenged on the basis that it amounts to unfair racial discrimination. There are many such cases where government initiated affirmative action preprogrammes were successfully set aside in the courts because the measures did not stand up to the constitutional test. Sasol just joined the fray and the issue is headed for court. 

Sasol is a private company with the right to undertake policies aimed at achieving its strategic goals including transformation of society. Sasol is however not entitled to unfairly discriminate against its workers on the basis of race, for example. Its plan to uplift black workers should remain within constitutional confines and the company has to show that indeed its plan does not amount to unfair racial discrimination against white workers. 

Once the aggrieved party cries unfair discrimination, as is the case with white workers at Sasol, then it is the responsibility of the company to show that it had no intention to unfairly discriminate against these workers. 

If Sasol's share scheme was to be referred to court to determine whether it constitutes unfair discrimination against white workers, the scheme would most likely not survive the court's test. 

Dishing out shares to workers because they are black may not amount to a comprehensible advancement of blacks in a way that would satisfy the constitutional requirement of rationality. One cannot adopt a senseless plan that will clearly not be able to achieve the goals intended. 

This brings me to the most difficult hurdle confronted by those who seek to adopt affirmative action programmes: affirmative action has to be rational and defensible within the constitutional framework.

Let's take the Sasol share scheme: does this scheme form part of Sasol's comprehensive empowerment plan and where is that plan? Can Sasol demonstrate that it has tried other means and those means have failed, or did the company opt for the differentiated share scheme as a first resort? 

Sasol will also have to show that its goal of advancing black workers is a compelling goal, and not a political manoeuvre aimed at appeasing political bosses by allocating shares to black workers. All this will form part of evidence necessary to answer the question as to whether Sasol's share scheme is worth constitutional protection, or whether it is a lousy plan that needs to be scrapped and deemed unconstitutional. 

As is often the case, the court may agree with Sasol that the company's heart is in the right place and indeed there is a need to advance black workers. The court may however conclude that the specific plan adopted to achieve those goals – the share scheme for black workers – is not a sound idea.
The courts in South Africa are asking very tough questions when dealing with affirmative action policies brought for review. In instances where government affirmative action programmes are referred to court, government often loses as its policies are often declared irrational and unconstitutional. 

Its response has been to voice its frustration with the situation, saying we need to relook affirmative action. 

While the courts should indeed ask tough questions to ensure that affirmative action is implemented within constitutional bounds, the main challenge, however, is that government's policy in this regard is often poorly framed in a way that undermines affirmative action as a constitutionally permissible tool to bring about social justice. This is the reason why the majority of affirmative action programmes referred to court are successfully set aside as unconstitutional. 

Government has to assess how it has framed affirmative action programmes in the last decade or so. The aim should be to figure out if the problem is with affirmative action as such, or the way in which government has crafted its policies around this. 

As cases pile up in court for evaluation, it is important for government to study some of the previous cases and see if there is a better way of framing affirmative action programmes, not only to survive future court scrutiny, but also to achieve the goals of affirmative action. 

Some of the programmes that have been proposed by government as affirmative action are outright clumsy policy proposals that would not survive even the most lenient court. 

South Africa cannot abandon affirmative action altogether without having to undertake a constitutional amendment. Affirmative action is directly provided for in our Constitution as part of equality. Failure to implement it where it is required is a disservice to our very Constitution. 

Ralph Mathekga is a Fellow at the SARChI Chair: African Diplomacy and Foreign Policy at the University of Johannesburg and author of When Zuma Goes and Ramaphosa's Turn.

 Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

Read more on:    sasol  |  constitutional court  |  affirmative action


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