Affirmative action must be rational

Apartheid officially ended in 1994. In South Africa discrimination on the basis of race and other crimes against humanity came to an end. A new legal system was enacted. 

The Constitution expressly protects equality; so everyone is equal before the law and has the right to equal protection and benefit of the law. But the Constitution also recognised that the playing field was not equal. So it permits Parliament and other state bodies to take affirmative action steps (transformation) to promote the achievement of equality. The measures may be designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination. Does that mean that any affirmative action or transformation measure would be lawful? If the government imposed an affirmative action policy that only black woman could be appointed as police officers for the next ten years would that policy be lawful, constitutional and valid? And secondly, who would decide whether it was lawful? 

The second question is easy to answer. It is the courts who decides the lawfulness of all government action. Whenever and wherever the government take action it must do so on a rational basis; and if the action taken is not rational the courts will invalidate it. Rationality means that the government action at a minimum must serve the purpose it was designed to achieve. In a challenge to governmental action the Court will consider what the government claims its purpose is and consider whether the conduct is properly crafted to achieve the stated purpose. But when is the exercise of public power in fact irrational? Is the test for rationality objective or subjective? The courts have accepted the rationality test is objective. It is not what the court thinks is rational that counts. It is only what as a fact is rational that is relevant. 

The courts have in a few cases been required to consider challenges to the validity of affirmative action/transformation policies designed to level the playing field in the name of equality. During a stint as an Acting Judge in the High Court, Cape Town during 2013 I was called upon to decide the validity of a policy by the Minister of Justice concerning the appointment of liquidators in the insolvency industry. There was evidence of widespread corruption in the appointment of liquidators, who it was suggested consisted of mainly white males. An appointment to a large estate is usually lucrative, and is highly desirable. Most liquidators of sizable estates were white males. To deal with this “problem” of unfairness and fraudulent appointments the Minister established a policy to deal with the corruption and the domination of the industry by white males. The Minister’s policy was to the effect that of every ten appointments the first four would go to black females, the next three to black males, the next two to white males and the tenth to a white male. The 4, 3, 2, 1 race/gender appointments were to be made on a strict rotating alphabetical basis. So, a massive liquidation of a mining company could be handled by a relatively junior practitioner, and the estate of a relatively small corner butcher shop that had gone under could be dealt with by the most experienced insolvency practitioner on the list. A group of insolvency practitioners challenged the Minister’s policy, complaining that it violated rights, including the constitutional right to equality. I, in my capacity as the judge, was required to consider the challenge. What was important was how the Minister justified the policy; the Minister was required to demonstrate how his 4, 3, 2, 1 policy would achieve his aim of rooting out corruption and level the playing fields. 

By way of introduction I commented: “Equality is an aspiration. More than three hundred years of inequality and pernicious disadvantage (unfair discrimination) at the instance of the State cannot be thought away overnight by raising a new flag and adopting a new supreme law. More is required.

The Constitution recognises this and requires protection of all rights in a transformative way. This approach informs constitutional jurisprudence and defines the right to equality, which requires remedial measures as a key element of that right. Such measures seek to redress the disadvantage caused by past practices. The Constitutional Court has recognised that such measures may adversely affect some, but that this is the necessary price to pay to enjoy social cohesion and the vision of the Constitution. For this reason, whilst white males, for example, may decry ‘affirmative action’ as it affects them, carefully crafted affirmative action plans and policies are necessary to ensure that the divisions, bitterness and resentments that have divided South Africa society and the stark disparities between those on the different sides of the colonial and apartheid divide are overcome. Division and bitterness could lead, and in many societies does lead, to conflict and destruction. 

A failure to appreciate and deal with historical fault lines on a sustainable basis and unresolved resentments can and do lead to civil conflict and often war. South Africans, led by Nelson Mandela in the early 1990s, sought a different route based on healing past divisions and consciously building an open society based on democratic values, social justice and fundamental human rights.”

The Court held the Minister’s transformation policy was unlawful and declared it to be invalid. The reasoning was that although it may have been desirable to clean out and transform the insolvency industry for the reasons put forward by the Minister, he did not demonstrate by evidence that his 4, 3, 2, 1 policy would achieve the desired changes. The statistics he relied on in deciding to adopt his policy were incomplete and in many instances inaccurate. How could a policy developed on incorrect facts be considered rational? It could not. Thus, the policy was objectively invalid and was set aside as being unlawful. The Constitutional Court agreed with the High Court. Justice Jaftha stated: “I have already found that the policy is not reasonably capable of achieving equality. The reasons supporting this finding are equally applicable to the rationality enquiry. This is so because the failure to prove that the policy is reasonably likely to achieve equality must mean that there is no proof of a rational link between the policy and the purpose sought to be achieved. Accordingly, I hold that the impugned policy is also irrational.”

So the policy of affirmative action can in limited circumstances be part of South African law. It is permitted to address past injustices in order to level the playing field and give all a fair opportunity. But any attempt to impose transformation measures must be rational. The law or policy must properly advance a better and fair society. Over time, it will probably become more and more difficult for the state to justify a discriminatory policy on the basis of affirmative action. The argument would be that so many years after the end of apartheid the disadvantage complained of no longer applies to those whom the policy is designed to benefit. 

To read or download the full March issue PDF of the Chronicle, click here

To read the Editor’s column for March, click here

To read the most read article of the February issue, click here

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