The government’s affirmative action policy is cruel, heartless and immoral, argues Martin Brassey. Why are its victims so silent?
OFFICIAL job reservation, scrapped in 1987, was reintroduced to South Africa a fortnight ago. Yet not a word has been said in protest. Where once the policy provoked uproar, now it evokes mere silence.
Silence from those who profit by the new policy is understandable. They are the blacks and women who have applied for one of the 11 000 vacancies in the civil service. According to the government, they alone will be considered for appointment to a post.
But why are the rest of us so mute — the white males who are being overlooked, their unions, the libertarian politicians, the crusading columnists and the reflective commentators? Is the policy so obviously right as to be beyond comment or criticism?
I doubt it. I suspect the silence owes less to consensus and more to fear and confusion. The fear, which is far from baseless, will doubtless take time to dispel, but much of the confusion is unnecessary. Our Bill of Rights tells us how we should think on the issue.
More importantly, it tells the government, on whom it is directly binding, how it must think on the issue. As private people, we may be able to escape the consequences of wrong- headedness (though we would be wrong to assume that we are altogether immune); the government, on the other hand, can be brought up short by constitutional challenge on decisions in this field, including its policy on the 11 000 vacancies.
As we might expect, the Bill goes out of its way to regulate inequality and discrimination. In Section 8(1) it proclaims that “every person shall have the right to equality before the law and to equal protection of the law”. Lest there be any confusion on the matter, Section 8(2) goes on to provide that “no person shall be unfairly discriminated against, directly or indirectly … on grounds … (of) race, gender, (and) sex “
Recognising, however, that rules of formal equality can serve to entrench pre-existing substantive inequality, the Bill rightly legitimates affirmative action by safeguarding “measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by discrimination …” (Section 8(3)(a)).
The government’s decision purports to be such a measure. Is it?
In part this depends on the intention behind it. Analysing it, we can infer that it was motivated by a desire to promote:
* the interests of the black and female applicants;
* the interests of other blacks and females in the community or — what amounts to much the same thing — blacks and women generally; or
* the government’s own interests.
That the motive might be the third is scarcely implausible. Given the polarisation of our country, much political profit is to be made by exploiting racial and cultural antipathies. But yielding to this temptation is precisely what the equality and non-discrimination clauses forbid.
Less easy to reject are the arguments arising from an intention to advance the interests of non-applicant blacks and women. They take a variety of forms. The government may say that black consumers prefer dealing with black officials and, likewise, women; that blacks and women need role models in high positions whom they can emulate; that blacks and women will not tolerate too great a disparity between the races or sexes; or that blacks and women require a proportionate representation of races and sexes in all positions of power or privilege.
Properly analysed, these arguments are really variants of the one based on self-interest. The only difference is that now we are dealing with the self-interest of third parties, rather than the government. But the difference has important consequences.
Since race and sex biases in society are so pervasive and run so deep, it is impractical to be quite as strict as in cases of self-interested discrimination. In many cases the public will simply not tolerate too non-racial or too non-sexist an outcome. Some allowance has to be made for this argument, but it must remain small; for, as one prominent writer reminds us, “it remains a dangerous business for the law to recognise — and a morally dubious business for the law to teach — the relevance of race to an individual’s social worth”.
By far the best case for the government is that its policy is designed to serve the interests of the black and female applicants themselves. This brings the Bill’s affirmative action clause squarely into play.
Over the years blacks and women have most certainly been “disadvantaged by unfair discrimination” and they are, therefore, fully entitled to the benefit of measures designed to protect and advance their interests. But this does not mean that the government can throw reason to the winds. Strict scrutiny may no longer be appropriate, but the measures selected must still be rationally connected with the objective and cause no more harm than is reasonably necessary to achieve it.
The government’s policy fails this test in two ways. Without needing to, it assumes that every black and woman is disadvantaged and that every white male is advantaged. Making such general assumptions may be legitimate when it is administratively impractical to differentiate between individual cases. But in cases of recruitment and promotion, this is not so. Each case is individually considered and so each can be assessed on its merits.
What the government’s policy does is to foreclose on the process. The judicious decision-maker would, I suggest, appoint the less-qualified blacks or women only if:
* firstly, they would, but for their disadvantage, have been at least as well qualified as their competitors; and
* secondly, it would, having regard to the needs of the department, be sensible to allow equity to prevail over merit.
On this basis a white male from a poor background might be preferred over a black or a woman from a rich one. So might a white male whose qualifications or level of service were significantly better than his competitors.
In the famous Bakke case, the US Supreme Court held it was impermissible to adopt a rigid racial quota in determining admissions to a state university. What the government is intending in the present case is much, much worse. By so rigidly excluding white males, it acts in defiance of the constitution, for it creates a system based on race and sex by which some are preferred though they are not disadvantaged while others are overlooked though they are.
If the government persists in its intentions, constitutional challenge seems inevitable. If it is successful, we should raise a cheer. This policy is cruel, heartless and immoral. All that can be said for it is it apparently springs from the best motives; but for this, it would fully deserve the comparison to job reservation with which this article began.
Martin Brassey is a professor of law at the University of the Witwatersrand
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