DEFENCE OF AFFIRMATIVE ACTION IN SOUTH AFRICA
OCKERT DUPPER* Associate Professor, Faculty of Law, University of Stellenbosch
INTRODUCTION The Employment Equity Act 55 of 1998 (EEA) has a dual purpose: first, to prohibit discrimination on a number of grounds, including race, sex, pregnancy, sexual orientation and HIV status; secondly, to make explicit provision for affirmative action in the workplace.1 Shortly before the EEA came into force, Martin Brassey wrote a number of articles thereon in the press. In his articles, collectively re-published under the title The Employment Equity Act: Bad for Employment and Bad for Equity,2 Brassey notes that the EEA is significant in being the first major piece of race-based legislation to enter the statute book since South Africa became a democratic state in 1994. This represents a watershed, Brassey writes, because it signif[ies] the perpetuation of precisely the institutionalized race consciousness that has already proved so divisive and destructive in our country [and] in consequence, cries out for analysis and debate.3 However, Brassey continues, to date there has been neither analysis, nor any real debate beyond a few comments of a technical nature. A possible reason might be, according to him, that it could appear churlish, because of the tremendous suffering of blacks under apartheid, to attack a legislative measure that has redress for past wrongs as its object. Another, perhaps more plausible reason, is that the silence is politically motivated:
Critics of the Act are reluctant to enter the area, which is of course a minefield, for fear of being stigmatized as racist. The epithet is easy to use, hard to shake off and, once applied, quickly results in ostracism and the loss of the states patronage. Since few wish to run this risk, the result is that analysis is muted; if the Act is attacked at all, it is simply on matters of a technical nature. The champions of the Act may rejoice at this, but the rest...