Restitution or discrimination? Lessons on affirmative action from South African employment law

This article evaluates the usefulness of affirmative action, which appears to have become the cornerstone of South Africa’s campaign to achieve racial equality. Whether or not affirmative action is an effective tool to combat disadvantage depends on the legislative approach and its best application to the specific problems. The approach taken by South Africa re-opens the debate on affirmative action and offers the international community a new perspective on overcoming past wrong. The importance of the subject is reopened particularly now that South Africa is at the forefront of the definition and implementation of what is generally termed affirmative action. In 1996 South Africa constructed a Constitution that entails an equality clause and makes reference to racial equality in several other provisions (Employment Equity Act, Act 55 of 1998, and its forerunner the Labour Relations Act, Act 66 of 1995, the Promotion of Equality and Prevention of Unfair Discrimination Act, Act 4 of 2000, and the Broad-Based Black Economic Empowerment Act (Act 53 of 2003)). The means to achieve racial equality and to overcome the legacy of past discrimination is without doubt a form of equality intended to compensate for that history through affirmative action (hereinafter referred to as restitutionary equality). Nevertheless, after more than ten years of democracy, enormous disparities between black and white still characterise employment. Despite the repeal of many discriminatory laws in employment such as the reservation of jobs for white people, high profile jobs are still occupied mainly by white people and white people still get the higher salaries (see Commission for Employment Equity 2007, Forgey et. al., 2000, at p. 294-296). Poverty today remains a black characteristic and as such is rising, even though there has been an increase in the average personal income (South African Institute of Race Relations, 2003). This article argues that not enough has been done to make restitutionary equality work at its best