Setting the sun down on affirmative action : a South African perspective

Abstract:The Constitution of the Republic of South Africa (1996) laid the foundation for the promotion of achievement of equality and further provides for the legislative and other measures to be taken to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination. One such measure was the enactment of the Employment Equity Act, No 55 of 1998. This the legislative measure aimed at forms part of the transformation legislation aimed at promoting equity and eliminating discriminatory and unfair treatment in the workplace. This Act was promulgated about 17 years ago, and its impact on transformation of the workplace into a representative establishments has to be measured. The private sector in particular, has shown reluctance in developing and/or implementing equity plans to advance the clearly stated objectives of the Constitution and the Act. This is evident in the number of organisations that are broad to book for failure to comply with the provisions of the Act. The Department of Labour reported on 24 July 2015 that 77 of South Africa’s big and medium companies were the first of 1 400 to face unprecedented court action over their failure to comply with employment equity legislation. This reflects on the challenges South Africa is regarding affirmative action. Several writers have shown their antagonism towards affirmative action. There have been calls that affirmative action must be ended. Claims such as that it is “reversed discrimination” and that it should not apply to the born-frees, have been canvassed widely. One such writer Valentine Mhungu, even produced a study that suggest that affirmative action should be terminated as it is not achieving its intended purpose but bring absurd and unintended results. This study seeks to demystify affirmative action and serve as a counter to the findings of Valentine Mhungu and many other antagonists of affirmative action and proves that there is no need to end affirmative action or to subject it to a sun-set clause. It further acknowledges that affirmative action is not and cannot be a permanent feature of employment sector as it has to and will die its natural death. This study further proposes mechanisms to fast track the implementation of affirmative action in South Africa....LL.M.(Commercial Law