A lot of hot air has been generated around the Democratic Alliance's tortured gyrations concerning its position on the Employment Equity Amendment Bill and on Broad-Based Black Economic Empowerment codes. As frequently happens when hot air is involved, more heat than light has been shed on the issues as the nation grapples with the lingering effects of the unfair discrimination of our racist past.
The ANC espouses what former deputy minister Enoch Godongwana calls "positive discrimination"; the DA is contorting itself with fine distinctions between the types of liberalism it embraces: working out the difference between substantive and functional liberalism is akin to calculating how many angels can dance on the head of a pin, and does not assist ordinary folk much. This is often the case when ideology and pragmatism get in each other's way.
The starting point of a heat-free discussion of the issues has to begin with consideration of the Constitution. It constrains all laws and policies, including those on "empowerment" in the economic sphere. If a law or policy (as a form of conduct) is inconsistent with the Constitution it is invalid whether it is called "positive" or "substantive" or "functional". These words do not feature in the relevant parts of the Constitution.
In the foundational provisions of the Constitution a democratic order under the rule of law is prescribed: one in which openness, accountability and responsiveness thrive. A non-racial non-sexist society in which human dignity is respected, the achievement of equality is promoted and various freedoms, all guaranteed in the Bill of Rights, are enjoyed is what the founders of the new order had in mind. On the basis of this compact a brave new dispensation was created with parliamentary sovereignty being jettisoned in favour of constitutionalism and the rule of law.
The Bill of Rights is explicit:
"Everyone is equal before the law and has the right to equal protection and benefit of the law."
This is very different to the discriminatory past from which we all emerged some 20 years ago. The inequalities of the past cannot simply be swept aside at the stroke of a legislative pen; the hard work of redress is required to do that. The manner in which to do so is also included in our supreme law:
"To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken."
Note that this provision does not make any reference to race or to racial groups and is not time bound. Individuals' rights are under consideration. The nationalistic "group thinking" of the past is discarded; we are all human beings and are all members of the human race. The entire constitution is free of race based terminology save as regards its consideration when appointing judges and public servants. Even there, broad reflection of gender and race on the Bench and in the Public Administration is contemplated, not any form of quota or of racial bean counting.
Unfair discrimination on the grounds of race is not allowed. "Positive" or "substantive" or "functional" discrimination are all unknown to the Constitution. It envisages discrimination that is either fair or unfair. If fair it is allowed "to promote the achievement of equality" and for no other purpose. It is certainly not fair to create a system that promotes the interests of cronies and the politically well-connected to the exclusion of everyone else. The DA trenchantly accuses the ANC of creating a handful of "black" elite billionaires through its affirmative action panoply of measures while leaving the poor masses worse off than they were under apartheid. This may be a valid criticism, but the DA does not follow through and impugn the laws and policies in place on the basis of non-compliance with the Constitution.
Even Trevor Manuel, a long serving ANC cabinet member, has taken to musing about the dreaded "pencil testing" that is inherent in the current system of employment equity. He asks: "Can we claim to be non-racist and look beyond the norms of the Employment Equity Act that describes "designated groupings" to definitions that appear to approximate the pencil test?" The obvious answer is: "No we can't claim to be non-racist while we have these 'designated groupings' on our statute book." In a non-racial order they are an abomination. They have no place in our law, certainly not twenty years or more after the demise of apartheid. There is nothing "positive" about discriminating in this way; it is unfair and it will continue to be so until the nettle is grasped and the laws are abandoned or struck down as invalid. This would involve a constitutional challenge of the kind that the Solidarity trade union appears to be prepared to mount.
Fair discrimination of the kind allowed in the Bill of Rights is the type of discriminatory measure that affirms opportunities. This would include a better education system than that in place at present, the provision of skills development and apprenticeships, training measures for victims of dreadful "Bantu education", the mentoring of those aspiring to new careers and the creation of university courses that impart the so called 'soft skills', the lack of which keep so many new graduates unemployed at present.
While the basic education system remains as dysfunctional as it is those disadvantaged by it, overwhelmingly 'black' young people, will not be able to fill the vacancies in the world of employment to which they aspire. Employment equity based on demographics will fall flat on its face for want of candidates who qualify for anything other than the most menial opportunities in the market place. Pushing square demographic pegs into round equity holes to fill quotas will break the system. This will kill the goose that lays our golden economic eggs in the process.
Affirmative action of all kinds ought to be colour-blind. It ought to affirm opportunities for persons and categories of persons disadvantaged by unfair discrimination.
It is counter-productive to concentrate on affirming outcomes by imposing social engineering of the kind tried in the old South Africa. Social engineering always fails; it will fail in the new South Africa just as surely as it was doomed in the old order. Racism in employment, where all the plum jobs are allocated to the favoured race in accordance with some quota system or code of conduct is still racism. It offends our non-racial foundational constitutional value and it is also, by definition, unfair discrimination. Using race as a surrogate for disadvantage is hardly appropriate in a society that has had twenty years to settle into its new dispensation; certainly not when disadvantage, both in law and in practice, knows no race. In South Africa today there are persons or categories of persons of all descriptions who can point to unfair discrimination that they have suffered, both before and after 1994.
We need to come to the realisation as a nation that "disadvantage" knows no race, no creed, no sex, no gender, no marital status, no ethnic nor social origin, no colour, no sexual orientation, no age, no disability, no religion, no conscience, no belief, no culture, no language and neither birth nor pregnancy. In our constitutional order disadvantage is the product of unfair discrimination. It has happened and can happen to anyone. Ask the prison officials at Pollsmoor, who recently successfully litigated the point. Ask the "white" squatters on the fringes of Pretoria, and ask the rural "black" women in the former homelands. The Indian policewoman denied promotion who had to sue for it. They will all speak of conditions in their lives that fit the definition of "unfair discrimination" a practice which, in law, is not allowed in our new order.
Positive forms of affirmation, rather than the weird idea of "positive discrimination", are what are required. The current dysfunction in schools attended by "black" learners will, if allowed to continue, ensure the dismal failure of the latest economic empowerment measures. These measures are a horse that won't run.
Paul Hoffman SC is with the Institute for Accountability