The SAHRC Equality Report – Light at the end of the tunnel for minorities?
11 September 2018
The South African Human Rights Commission (SAHRC) recently published its 2017/18 Equality Report (the Report), which was submitted to Parliament. This has probably not attracted much attention, due to processes around expropriation without compensation (EWC), the Zondo State Capture Commission of Inquiry and other current news. One exception was the Solidarity Movement. They announced that the Report means that the country's affirmative action legislation is unlawful and does not comply with international requirements. Solidarity is to approach the Courts for a declaratory order to clarify how employers and the Department of Labour should handle the situation until the law (as proposed by the SAHRC) is amended.
The subtitle of the Report is insightful: “Achieving substantive economic equality through rights-based radical socio-economic transformation in South Africa”. The SAHRC thus uncritically accepts the political policy of the ANC government and tries to strengthen it by giving it a human rights basis. On several occasions the Report concludes that because so little progress has been made with greater equality in South Africa, radical socio-economic transformation is essential. The question about why so little happened (e.g. that the education system has hopelessly failed) is never asked or answered.
The equality clause in the Constitution, section 9(1) states that everyone is equal before the law, while (2) states that 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.” The Employment Equity Act of 1998 (the Act) and affirmative action are based on this clause. Section 9(3) of the Constitution prohibits the State from “unfairly [discriminating] directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.” Subsection (5) states that “discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”
The Constitutional Court in the Van Heerden case (Minister of Finance and Another v Van Heerden 2004 (6) SA 121 (CC)) found that any application of section 9(2) (i.e. special measures to promote equality) is automatically fair and not subject to the tests of subsections (3) and (5). This means that according to this judgment, all corrective action - without any test of its fairness - should be regarded as fair. The only limitation is that a measure shall not constitute abuse of power and that it may not cause substantial and unintended damage and thereby threaten the country's long-term constitutional goal of a non-racial and non-sexist society. This interpretation has serious negative consequences for, and has even led to harm of, minorities.