Helen Zille's article, "Renate Barnard and AA: Where does the DA stand?", is a remarkable piece of work about a very difficult area. And it is remarkable in several different ways.

(1) Ms Zille starts off by saying that "I will focus on the broader issue of affirmative action....Having considered the matter carefully, I have classified affirmative action...etc". So this is an individual, personal essay on the matter. This is very peculiar. The DA is the official Oposition and one would expect such a party to develop its policy response to something like the Renate Barnard case based on:

- previous statements of party policy on the matter, plus research papers and other documentation

- the work of the Shadow DA Minister(s) and his/her assistants for the portfolio(s) under which this

 case is adjudged to come

- the deliberations of a senior party committee of experts/interested parties, perhaps afforced by key outsiders with special knowledge.

That is simply how one would expect any serious party to develop its policy responses - but of this there is no sign. Instead this is just what Ms Zille personally has to say on the matter. This is bizarre.

(2) Despite Ms Zille's title her essay does not answer the question in her title. We are no wiser at the end as to whether the DA sides with Ms Barnard or against her.

(3) The distinctive basis of liberal parties all over the world is that their doctrines are based upon the importance of individual human rights. Thus a liberal response to this case would be developed from these basic principles. The DA used to claim to be this sort of party, but of these principles and the recognition of these rights, there is no mention in Ms Zille's essay.

(4) Everywhere else in the world the first question that affirmative action schemes have to face is whether such practices will have a positive or adverse economic impact on the institution that adopts them. In this treatment, however, economics does not exist.

(5) Similarly, affirmative action schemes have been operated all over the world from the USA to Malaysia and points in between. A large body of research, legal opinion etc has built up internationally as a result. Yet in Ms Zille's essay South Africa is treated as a unique case, which it is not. The result of (4) and (5) is that affirmative action is thus discussed in just the way that the ANC does, in a little dreamland all of its own, where neither economics nor international experience exists.

(6) Ms Zille outlines her four types of affirmative action, the last being the complete rejection of affirmative action as being unmeritocratic. She does not say what is wrong with this idea but rejects it without any reason or argument.

(7) Ms Zille then develops what she says the DA policy is. She says it is all based on the concept of being "fit for purpose". But this is just a business buzz-word with no real meaning. In Britain or America the phrase usually means an institution which is practical and highly competent, based on wholly meritocratic selection. She more or less gives the game away by adding that the DA policy "is not an exact science. There is no easy formula to follow. Each case must be analyzed in its context and must take a range of factors into account."

What that means is that everything must be dealt with on a case-by-case basis. Which means there is no policy. Similarly, "diversity targets" are good, but "quotas" are bad. This reminds one rather of the mindless chant in Animal Farm, "Four legs good, two legs bad". It has about the same degree of reason to it. Speaking of Animal Farm, one can't but recall the final formulation of Napoleon, the leading pig: "All animals are equal but some animals are more equal than others". This is, after all, more or less exactly what affirmative action is all about and it illustrates why anyone who ventures down this path soon finds themselves in queer street.

(8) Ms Zille goes on to quote clauses 9 (1) and (2) of the Bill of Rights. She does this somewhat uncritically. If 9 (1) had been followed, after all, Ms Barnard would obviously have won her case. So she clearly lost because of 9 (2). Strange, because that clause talks of "persons disadvantaged by unfair discrimination" and one would imagine that Ms Barnard was just such a person. It seems clear, indeed, that affirmative action schemes are likely to infringe 9 (1) because they deny equality under the law.

So, if we are not to construe 9 (1) and (2) as being in conflict with one another that has to be because the sort of legislative measures to help the disadvantaged envisioned in (2) are, for example, special measures to help poor schools, scholarship schemes open only to the disadvantaged and so on. That is to say, broad social measures aimed at benefiting whole categories of the population would be permissible but measures which infringed on individual rights would not be.

(9) Oddly, Ms Zille never gives her opinion of the Constitutional Court's judgement but she does quote approvingly from Chief Justice Moseneke, as if she agrees with him. Yet the passage she quotes with approbation contains the strange sentence: "The Act sets itself against the hurtful insinuation that affirmative action measures are a refuge for the mediocre or incompetent." This is a very strange formulation which suggests that there is some sort of legal ban against criticising AA because to do so would be "hurtful" to some persons. Yet this cannot be right. After all, the advocacy of the abolition of slavery in the North of the USA was doubtless "hurtful" to slave-owners in the South, but could one similarly say that because of that the abolitionists should have shut up? The fact is that Moseneke's formulation is just a way of kicking into touch some of the real arguments about AA rather than honestly dealing with them.

That said, it has to be admitted that this is a peculiarly difficult area in many ways. It is, for example, difficult to quantify the indirect results of cases like Renate Barnard. One reads in the sports pages that the recent silly remarks about affirmative action in rugby by Messrs Tutu, Mbalula etc, immediately led actual and potential Springbok players to start thinking about playing in Europe for pounds or Euros. In that sense, every Minister is a Minister for Emigration.

Anyone who has been an employer in South Africa - I speak from personal experience - has made affirmative appointments for one reason or another. Most of those that I made were failures and I regretted afterwards that I had not stuck strictly to merit criteria, but in a very few cases they were a tremendous success, with the appointee summoning up unexpected acumen and resourcefulness. Such cases, few as they were, gave one pause for thought - but they did not provide any basis for policy. One cannot base policy on a few isolated cases.

If one wants to be practical let us take the private sector, on the one hand, where companies make some affirmative appointments but simply cannot prejudice their survival by appointing on non-meritocratic criteria to their key posts. Then contrast with the civil service where there are effectively no limits to affirmative action. The result is a broken and useless civil service and a private sector which, just about, keeps the country going. The only possible policy, based on that large comparison, is to keep affirmative action to a minimum and don't worry whether Chief Justice Moseneke finds this "hurtful".

That is, however, a rather crude formulation. I would expect the official Opposition to come up with something better than that. At the moment, as Ms Zille's essay reveals, it simply has no policy.

RW Johnson

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