Is a right to affirmative action the solution to the Orwellian postulate that all are equal but...
- Is a right to affirmative action the solution to the Orwellian postulate that all are equal but ...
Legislation often prescribes the broad parameters of social development, particularly in the creation of socio-economic entitlements and rights. In some cases such prescriptions may even be quite detailed. However, it is through the courts that these parameters are defined, narrowed, broadened, given substance and, ultimately, applied. It is thus the courts that create the body of jurisprudence that helps us to understand, and thus to analyse, such legislation. This article adopts as its starting point legislation that has been enacted to address the issues of the pervasive inequalities inherent in South African society, goes on to analyse the approaches adopted to solve similar problems in other jurisdictions, and then analyses the approaches adopted by South African courts in interpreting the legislation and giving content to the will of the legislature; ultimately addressing the question of whether affirmative action can now be described as a right.
Regular readers of Transformation will note that the article by Morris Montalti and Adrian Bellengère is not presented in the usual Transformation style. The original article we received was written for a legal audience. The editors and our referees felt that the submission was important but needed to be made more accessible to a broader audience. We have, therefore, asked the authors for 'parallel texts', with a narrative that runs along the top, and a further narrative, in the endnotes, that delves deeper into the legal issues for those who may be interested in this.
The Editors [End Page 146]
Introduction
The road back from racial persecution – slavery or apartheid – is a long one. It will meet resistance because nobody ever likes to think they are guilty. But I see no alternative to the payment of this historical debt, and no better hope in Africa for a successful outcome than in the land of Nelson Mandela.
(R Cohen International Herald Tribune March 11, 2006)
Affirmative action and remedial equality are politically, legally and philosophically contested concepts in many systems (Ginsburg and Merritt 1999), and it is often difficult to distinguish substantive issues from legal technicalities (Ssekasozi 1999:15).1 The South African Constitution (The Constitution) authorises legislative, and other measures, which are designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination.2 These measures have become referred to as 'affirmative action'. This is a relatively new aspect of contemporary liberal legal systems (Kymlicka and Wayne 2000:1-4) in that it effectively creates rights enforceable by an individual, but which are based on that individual's membership of a particular social or cultural group. Such rights have been accorded to members of a broad array of social groups to redress inequalities associated with, race, sex, sexual orientation, disability status, indigeneity, and so forth (Young 2001). Rights, similarly, have been granted to the members of cultural groups constituted according to nationality, ethnicity, or religion, to acknowledge and accommodate particular beliefs or practices, or in recognition of collective claims to self-governance (Kymlicka 1995, Mancini 1996).
However, such rights openly distinguish amongst classes of people in the distribution of social rights and benefits, thus giving rise to significant controversies and raising many questions: for example, are group-differentiated rights inherently detrimental to individual interest? Why is distinguishing amongst classes of people in the allocation of rights and responsibilities not prima facie contrary to principles of equality? Is there a conflict between the concept of affirmative action itself and an ad hoc adjudication on affirmative action disputes? How are rights vested on such grounds to be compared to the theoretical existence of an independent individual right?3 This paper will not directly address these questions, but will focus on the aspect of this debate which underlies these questions, namely: is there a right to affirmative action in the context of the South African jurisprudence? [End Page 147]
The first step will be to evaluate affirmative action in terms of different conceptions of equality itself. The notion of equality is a broad one and one thus needs to narrow the definition when analysing whether a...
