analysis
Judith February
Although the dismantling of apartheid signalled the end of legalised racial oppression, South African society remains deeply divided along racial lines. The inequalities reflected in rampant poverty and joblessness continue to be specific to a larger proportion of black people in South Africa.
The government, however, has enacted legislation to counter racism in all spheres of South African life.
Laws designed to combat racism in South Africa are the Employment Equity Act and the Promotion of Equality and Prevention of Discrimination Act. Underpinning each of these pieces of legislation is the Constitution, which prohibits unfair discrimination and seeks to place equality and the preservation of fundamental human dignity at the heart of our fledgling democracy.
The fundamental right set out in the Bill of Rights is the right to equality, which states that no one may be discriminated against on the basis of race. Everyone is equal before the law and has the right to equal protection and benefit of the law. The legislation seeks to guarantee “formal equality” and recognises the need to address past disadvantages.
Pursuant to the adoption of the Constitution, policies directly attacking racism came into effect. One of the most significant pieces of legislation is the Employment Equity Act 55 of 1998. The purpose of the Act is to achieve equity in the workplace by eliminating unfair discrimination and implementing affirmative-action measures to redress disadvantages in employment experienced by designated groups (blacks, women and the disabled) and ensuring their equitable representation at all levels.
The Act requires that every employer takes steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice. In terms of the legislation, employers with 50 or more persons and a turnover that exceeds the thresholds are subject to affirmative action. These measures must ensure that suitably qualified employees from designated groups have equal employment opportunities and are equitably represented at all levels. There may be preferential treatment and numerical goals to ensure equitable representation. Interestingly enough, this excludes quotas.
As with many of South Africa’s laws, the implementation of the Employment Equity Act has been fraught with problems. The Department of Labour experienced some difficulty monitoring compliance with the Act and, as a result, there have been concerns about the efficacy of such legislation. Companies failing to comply could face fines of between R500000 and R900000.
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 was enacted in response to the constitutional imperative that legislation aimed at preventing and prohibiting unfair discrimination be enacted within three years of the date on which the Constitution came into effect.
The Act also reinforces the understanding that everyone has a duty to promote equality.
In terms of the Act, “unfair discrimination” by the government, individuals and companies is prohibited, whether by act or by omission and regardless of whether it is intended or unintended. Liability may, therefore, arise from the application of policies that are race-neutral but which have a disparate impact on black people. Measures must be taken to prevent and eliminate racial discrimination. The Act also establishes equality courts to deal with cases of unfair discrimination.
Implementation of the Act is being monitored closely by human rights organisations and the legal fraternity. Draft regulations to facilitate its implementation have been circulated but are not yet in operation, which is cause for concern. It is generally thought that the training of presiding officers and staff for equality courts is critical for the successful implementation of the Act.
With the passage of progressive legislation South Africa has the tools with which to achieve racial equality.
There are, however, obstacles to be overcome before this legislation can be fully implemented. A lack of monetary resources and poor infrastructure are some of the shortcomings of the justice system. More important than that is, perhaps, the caveat which legislators, human rights organisations and ordinary citizens should heed: that legislation alone can never cure inherent social disorders. Instead, a commitment to become a society conscious of the equality and dignity of each citizen, is required from all. Legislation is the starting point of such a process.
Judith February is the legislation monitor at the Political Information and Monitoring Service at Idasa