The Employment Equity Amendment Act and related topical issues

20 July 2023

On the evening of 6 July this year the Centre for Social Justice at Stellenbosch University hosted a conversation on Twitter Space to unpack the Employment Equity Amendment Act 4 of 2022 (EEA). Prof. Thuli Madonsela and I, spokesperson for AfriForum Youth, were the speakers, while listeners could also contribute to the debate. A recording of the conversation is available on Twitter. However, I want to provide a summary of the key points from the conversation and share my thoughts.

Prof. Madonsela provided an introduction that I perceived as a very predictable and one-sided take on the controversial issues that pertain to equality in present South Africa. I will focus on three of the topics that she raised with her opening statements:

South Africa is unequal, and she suggests that the word inequality in a South Africa context automatically refers to comparing one racial group’s statistics to another. She mentioned various statistics, all relying on the old racial classification system from apartheid – which is still being used today.

She also declared herself against the US Supreme Court’s recent ruling that race-based college admissions should be overturned.

According to Madonsela, land ownership is a major issue because the white minority group in South Africa owns 72% of the country’s land.

Here are my viewpoints on these topics:

1. Equality

Equality cannot be the main objective when we consider equal outcomes. The concept of equal outcomes is unachievable; therefore, to partake in unequal practices to achieve equal outcomes is simply unjustifiable.

Socialism, for example, is an attempt to achieve equal outcomes by taking from those who have and giving to those who do not have so that everyone will be “equal”. This is counterproductive, however, because it penalises those who work and rewards those who do not work.

Equal opportunities should be the main aim, and this is exactly what the EEA does not offer.

Every government that has used racially discriminatory legislation at some point always argues that there is a good reason for it and that their attempts are different and better. It is not! Racial discrimination is wrong and immoral. Attempts to disguise it by using euphemisms like restitutive action or transformation will not help.

The EEA goes against the constitutional values of equality and non-racialism. Prof. Madonsela kept referring to the past that caused the need for a “positive intervention” to reach true equality. Of course, what happened in the past impacts the present, but we cannot ignore the fact that we have now been governed by the “new” government for almost 30 years. Still, we have children attending schools that have pit toilets; still, the unemployment rate just keeps skyrocketing. It is time that we look at the root of the problem, which is that the government does not seem to have the will to actively solve the education crisis that has been plaguing South Africa for decades.

Let us compare the employment issue in South Africa to a fruit tree. If the tree does not bear fruit, it would be silly to hang plastic fruit on it to pretend that the tree is indeed bearing fruit – or worse, to pretend that the tree is growing healthy and strong. The root of the problem is still the education crisis that remains unsolved – and representivity will not help.

2. Racial classification

The recent US Supreme Court ruling is positive because it steps away from racial discrimination – as it should. The justices ruled in favour of an organisation called Students for Fair Admissions and that name says enough. It is unfair to oblige students to racially self-classify.

Yet, Stellenbosch University currently has 17 adopted policy documents that refer to race. Racial classification is mandatory for South Africa’s public universities and such policies keep the practice of the apartheid era’s racial classification system alive, despite the fact that the Population Registration Act of 1950 was repealed over 30 years ago.

There is already a myriad of challenges that face minority groups at South African universities, especially if they have a specific presumably undesirable skin colour. Therefore, I must emphasise that the EEA’s practice of racial classification constitutes a gross violation of the right to equality as well as a violation of the founding values of non-racialism in our Constitution. South Africa’s youth unemployment rate is at a staggering 62%. Every young person deserves to apply for jobs after school without the fear of being rejected simply on the basis of their skin colour.

That is why the settlement agreement between the trade union Solidarity and the government on 28 June is groundbreaking. Solidarity lodged the dispute against the Department of Employment and Labour with the International Labour Organisation (ILO) to challenge the constitutionality of South Africa’s new BEE and transformation laws. This was done to support the UN Committee’s goal to eliminate racial discrimination. The ILO ruled that –

- the use of race as sole criterion for appointments is abolished;

- there should not be absolute ceilings for employment or promotion of people on the basis of race; and

- employers will no longer be forced to face heavy penalties if they didn’t reach the equity-targets but have a reason for this, like the pool of suitably qualified and competent persons.

Furthermore, race-based policies such as Black Economic Empowerment (BEE) have unfortunately not yet led to the overall upliftment of poor black South Africans. Instead, BEE created and still creates opportunities for enrichment and nepotism that do little to help poor South Africans, but rather exponentially create opportunity for corruption. BEE is for an exclusive elite of the politically connected, and most South Africans, regardless of their skin colour, know that they are not part of this elite group. It also achieves the opposite of what it declares to achieve: It does not empower black people because these policies make them more dependent on the state. Empowerment can only be achieved through high-quality training and economic policies that give people the freedom to be entrepreneurs without being hampered by government intervention.

3. Land ownership

It is a myth that white people own 72% of the land. This misconception comes from a government study that is fraught with methodological errors and flawed calculations. One example of this: The study actually argues that white individuals own 72% of 30,4% of agricultural land in South Africa. This statistic is highly questionable, but if, for argument’s sake, it is true, then white people only own only 21,9% of the land.

The state owns more than 24% of South Africa's total surface area, however. Think of it this way: the state collectively owns 17 million hectares of land in South Africa, equivalent to the total area of KwaZulu-Natal and Mpumalanga combined.

Yet, we do not see the ANC-led government giving black people land; we rather see how they are centralising more and more power. An investigation into the so-called “land hunger” found that 93% of the people who lodged a land claim wanted money rather than land.

Land ownership, however, was not the question at hand and it is worrying that Prof. Madonsela suggested that white people stole the land, because this is one of the greatest erroneous historical observations of our time in a South African context. The focus should remain on the unconstitutionality of the EEA, which stems from the underlying obsession with skin colour in modern South Africa.

Racial discrimination is indefensible, regardless of who the discriminator is. The distorted focus on skin colour is used to distract from the ANC governments’ enormous failures. I was taught to judge someone on their character and not the colour of their skin.

René van der Vyver is spokesperson for AfriForum Youth. René obtained a master’s degree (cum laude) in Tourism Management from the North-West University. Her research theme, creative Afrikaner cultural tourism, is indicative of her passion for Afrikaner culture. This passion sets the tone in several areas, such as when she takes a stand on topical issues on Twitter and YouTube (@ReneVanderVyver).