Renate Barnard and affirmative action: Where does the DA stand?

17 September 2014

Of the many issues South Africans find it difficult to have a rational discussion about, affirmative action tops the list.

It is called many names, but for most people it means one thing: employment preferment on the basis of race. And people are either vehemently "for," or virulently "against" it.

But what exactly is "it"?

And where does the DA stand?

This newsletter once again focuses on this crucial issue, in the light of the unanimous recent ruling by the Constitutional Court, dismissing the claim by a SAPS officer, Renate Barnard, through her trade union Solidarity, of unfair discrimination. 

She had twice applied for promotion to the same position, twice been recommended as the best candidate by the adjudicating panel, and twice been turned down by the Commissioner on the basis of her race, while the post remained vacant.

Before examining the details of the Renate Barnard judgement, I will focus on the broader issue of affirmative action.

Having considered the matter carefully, I have classified affirmative action in South Africa into four distinct approaches. Once one understands what they are, it becomes easier to analyse examples on a case-by-case basis.

One approach is "representivity". This is another word for "quotas". Representivity aims to achieve a situation in which every employment category, at every level in any institution, company or government department, reflects the racial ratios of the broader population. 

At national level, on the basis of the 2011 census, this would be 79,2% black African, 8,9% white, 8,9% coloured, 2,5% Indian. In this approach, race classification and "race proportionality" usually trump all other considerations.

The second approach is "cadre deployment". This describes the way the ANC uses "racial preferment" as a smokescreen to ensure that party loyalists control all institutions of the state, the economy, and civil society. 

The ANC even has a formal "deployment committee" to undertake this task. In this approach, loyalty to the ANC (or a faction within the ANC) overrides all other considerations, while "race" is merely a convenient fig leaf used to camouflage the strategy of "capturing" all key institutions, private and public, and bending them to the ANC's agenda.

The third approach is best described as the promotion of "diversity". This involves a conscious effort to redress the effects of past discrimination through broadening opportunity, advancing people's potential through training and mentorship, improving education, and growing the economy to promote inclusivity. 

It is possible to incorporate diversity "targets" in this approach, without turning them into quotas, and while still ensuring that other criteria (such as capacity to do the job, relevant experience and qualifications) remain central to employment and promotion decisions.

The fourth approach regards any form of affirmative action as "reverse racism" or "compromising on merit" and rejects it unequivocally.

The DA supports option 3 for three reasons:

It is the right thing to do.

It is the only approach that can achieve inclusivity with sustained economic growth, which is essential to creating the jobs required to make affirmative action work in the long term.

It is the only approach compatible with the Constitution and the law.

The DA's goal is to ensure South Africa becomes an open, opportunity society for all. We are not in denial about the impact of past discrimination. We believe this legacy must be addressed without entrenching race as the determinant of a person's life chances. We reject the notion that "demography is destiny". We also understand how important it is in any society to reinforce the link between effort and ability (on the one hand) and outcomes and rewards (on the other).

At the same time, we recognise the extent to which past opportunities were skewed, and we want to help correct this. Within the DA we try to practice what we preach and our approach is beginning to bear fruit in the rapidly increasing diversity throughout our party. 

In our approach, race on its own, is not the criterion for preferment. It is one of the factors we take into account. Everyone in the DA agrees that race cannot be used as a substitute for skills, commitment, initiative, effort and plain old-fashioned hard work. We look for the full package.

Option 3 is not an exact science. There is no easy formula to follow. Each case must be analysed in its context; and must take a range of factors into account. 

As part of this process, we have developed the concept of "fitness for purpose", which includes (but is certainly not limited to) the attainment of diversity. It also includes qualifications, experience, track record, potential and other relevant factors. It opens opportunities for people to prove themselves, but does not manipulate race-based outcomes according to numerical formulae.

The key objective of option 3 is to employ and retain people who not only enhance diversity, but who are also competent and effective. Importantly, it does not create an impenetrable barrier to the promotion of people who are not from "designated groups".

The constitutional approach to affirmative action is defined by clauses 9 (1) and (2) of the Bill of Rights. These state:

9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

9. (2) Equality includes the full and equal enjoyment of all rights and freedoms. 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.

A crucial point about clause 9 (2) is that it says nothing about race. It speaks about disadvantage. This distinction will become more and more relevant over time, as education and economic opportunity erode the legacy of apartheid, and disadvantage is less defined by race. 

The Constitution's purpose is clearly to reduce the impact of "racial preferment" and eradicate it over time. Anyone who believes in the goal of non-racialism must support this thrust.

The University of Cape Town has started moving away from "race" as the sole arbiter of disadvantage in its admission criteria. It now factors in a range of issues that are better measures of disadvantage. 

It has been interesting to note the outcry from some black students, which should serve as an early warning that once a "category of persons" becomes accustomed to racial preferment, they defend that advantage, even when it is unconstitutional and unlawful to do so. 

Over time, there are likely to be more Constitutional Court cases challenging racial preferment in matters where race is no longer an adequate proxy for disadvantage.

But, apart from the constitutional imperative, it is also important to analyse the "legislative measures" that are mandated under Clause 9 (2) of the Constitution. These include the Employment Equity Act, and particularly clauses 6 (1) and (2) which read:

6 (1) No person may unfairly discriminate directly or indirectly against an employee in any employment policy or practice on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

6 (2) It is not unfair discrimination to

a) take measures consistent with the purpose of this Act [i.e. to promote equal opportunity and fair treatment through the elimination of unfair discrimination]; or

b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

In addition the Act specifically outlaws quotas, which is why, after a false start last year, the DA kicked up such a fuss about amendments to the Act that enabled "quota regulations" to be drawn up by the Minister, exposing the ANC's intentions to sneak in quotas through the back door. (These regulations were subsequently amended.)

The Barnard case is helpful in describing a quota as an "absolute barrier" to promotion, on the basis of race, or other arbitrary requirements that are not inherent to the nature of the job.

The Court found that this "absolute barrier" or "permanent ceiling" was not present in the Renate Barnard case because, although she was "passed over" twice for promotion to a position for which she had been unanimously recommended, the post was deemed "non-critical" for service delivery; the two black officers who scored slightly lower than she did (in the second round) were also not appointed; and the post was subsequently abolished, while Barnard herself was promoted to another post.

The 11 member court produced three different judgments, which gave different reasons for their unanimous conclusion that Ms Barnard's application should fail.

The majority finding (supported by 6 judges), hinged on a technicality. It argued that Barnard had changed the basis of her case at appeal stage, challenging not the SAPS affirmative action plan, but the Commissioner's application of it. Such a change was not possible at appeal stage, and Barnard's case could therefore not be upheld.

It is worth quoting Deputy Chief Justice Dikgang Moseneke who authored the majority judgement, in this context:

"I pause to underline the requirement that beneficiaries of affirmative action must be equal to the task at hand. They must be suitably qualified people in order not to sacrifice efficiency and competence at the altar of remedial employment. The Act sets itself against the hurtful insinuation that affirmative action measures are a refuge for the mediocre or incompetent. Plainly, a core object of equity at the workplace is to employ and retain people who not only enhance diversity but who are also competent and effective in delivering goods and services to the public."

A minority finding (supported by 3 judges), argued that the matter of the Commissioner's application could indeed be adjudicated, on the basis of whether Barnard had been unfairly discriminated against in terms of the SAPS plan. These judges found that, despite scant reasons and sparse evidence to back the Police Commissioner's decision, it narrowly complied with the fairness test.

The final judgment, (authored by a single judge), said the test was whether the decision not to promote Barnard had impacted disproportionately on her dignity as an individual. He concluded it had not.

As far as I can establish, the judges did not adjudicate the constitutionality or legality of the SAPS's employment equity plan itself, which may have produced an entirely different result.

Because, as Counsel for Officer Barnard cogently argued, the plan would battle to pass the test of constitutionality. It divides posts at every level of the service into a numerical grid, reflecting the proportional composition of the population as a whole in terms of eight categories. These include the four apartheid race categories (black, coloured, Indian and white), each of which is then divided into two gender categories: males and females.

While race placements are determined by strict proportionality, women are only allocated 30% of positions (and men 70%), despite the fact that women constitute 51% of the population. The SAPS do not explain this anomaly in their quota-based (and I therefore believe, unlawful) system.

It is very interesting to note that where the courts have been called to adjudicate the SAPS applications of quotas, they have concluded that quotas are not lawful. The best known case in this context is that of Jennila Naidoo, who also challenged her non-promotion after being rejected on the grounds of the SAPS affirmative action policy in 2009.

In court, SAPS explained that their employment equity plan sets "targets" for every level of employment based on national race demographics (then still on the basis of the 2001 census): 79% African, 9,6% white, 8,9% coloured and 2,5% Indian. In terms of gender, the targets were 70% male and 30% female at each employment level.

Ms Naidoo applied for the position of cluster commander in Krugersdorp, a level 14 position. In the interviews and assessments she achieved 74,2%, which was the second highest score. The candidate with the highest score was recommended for another position, and the panel recommended Naidoo in order to address the issue of gender equity. However, she was rejected by the relevant Commissioner in favour of a black male candidate.

The SAPS rationale for this decision was as follows:

There were 19 posts at level 14. To determine how many of those posts would be given to Africans, the following calculation was applied: 19 x 79% = 15 posts.

A similar calculation was applied to Indians: 19 x 2,5% = 0,475 posts. 

To calculate how many of those posts would be occupied by Indian females: 0,5 x 30% = 0,1 posts -- which was rounded off to 0.

Thus, SAPS concluded (and indeed argued in court), that no Indian female could ever be promoted to post level 14, because their numbers in the population did not warrant it.

The court concluded that this was unconstitutional and unlawful. The SAPS quota system created an absolute barrier to Ms Naidoo's progress on the basis of her race and gender. The court made it clear that equity targets cannot be turned into quotas.

The Renate Barnard case was different from the Jennila Naidoo case. But they both evoked the same amount of passion, anger and intemperate language on both sides, especially from people who cannot be bothered with detail. And in these matters, the devil is always in the detail.

To do justice to this fraught debate, one has to grapple with the detail of each case, and any employment equity plan must make this possible. 

Only option 3 (above) enables us to do this, and make decisions on the basis of what is "fit for purpose" in each employment decision, so that South Africa can deal with the legacy of the past while preventing race from becoming the predominant criterion in decision making.

This is the imperfect and difficult balance we must strive to maintain as we move towards achieving a non-racial society as soon as possible.

This article by Helen Zille first appeared in SA Today, the online newsletter of the leader of the Democratic Alliance.

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