IIRA African Regional Congress, Cape Town 27 March 2008 Ockert Dupper

1. Resolving the tension between formal and substantive equality: the record of the South African courts in adjudicating affirmative action disputes IIRA African Regional Congress, Cape Town 27 March 2008 Ockert Dupper

2. Legislative framework • Section 9(2): explicit endorsement of AA • ‘In order 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’ • EEA; PEPUDA = give effect to 9(2)

3. Van Heerden-judgment of CC • No presumption of unfairness • Meet internal criteria = then complete defence to unfair discrimination claim • General approach = one of restraint and deference • Low level of scrutiny: focus on disadvantaged, not advantaged group • Manifestly overbalanced; disproportionate burden = then courts have duty to interfere

4. Who? • Constitution open-ended • EEA = 3 distinct categories of disadvantage that warrant redress: race, gender, disability • Black people, women, people with disabilities • Black = ‘African, Coloured, Indian’ • Actual implementation favours: • race over other categories; • African over Coloured and Indian

5. Who: actual disadvantage? • AA overinclusive = emphasis should be on disadvantaged individuals • CC in van Heerden: group-based approach • Group disadvantaged; not individuals • Individualised approach: does not correspond to manner in which harms inflicted, experienced • ‘Overwhelming majority’

6. Who: degrees of disadvantage? • CC flags issue: resolution requires legal, historical, social evidence • Case law: differentiation between Africans and other groups • Accepted relative disadvantage argument (Motala, Fourie, Christiaans etc.) • Scrutiny may wel be higher than relatively relaxed standard for identifying disadvantaged group • ‘Equitable representation’ in EEA = alternative

7. How? • CC = AA measures may come at price for previously advantaged • Magnitude of preference: how heavy the thumb that AA places on the scales? • Least disruptive: equal qualifications • Most disruptive: wholly unqualified (‘token’) • ‘Suitably qualified’ • ‘Threshold of performance’: otherwise reinforce stereotypical and prejudicial views

8. Suitably qualified • Courts reluctant to interfere in how SQ defined • ‘Insurmountable obstacle’: • du Preez v Minister of Justice and Constitutional Development and others [2006] 8 BLLR 767 (SE) • Criteria not applied properly: • IMAWU v Louis Trichardt Transitional Council (2000) ILJ 1119 (LC)

9. Efficiency considerations? • Private sector – largely self-enforcing • Merit defined in manner that advances own interests • Public / police service: constitutional imperative • Efficiency / representivity not necessarily in conflict (Stoman-decision) • Coetzer & others v Minister of Safety & Security & another(2003) 24 ILJ 163 (LC)

10. How much? • AA temporary measure with specified goals • Closely tied up with justification • Backward-looking = expiration date possibility (see van Heerden) • Forward-looking = redressing exisiting inequality = more amorphous goal • Workplace = ‘equitable representation’; ‘broadly representative’ • Willemse; Alexandre decisions • Attain / maintain

11. Concluding remarks • Constitutional provision carefully drafted to provide ‘express direction’ • EEA = sophisticated; nuanced • Courts = commendable job of resolving tension • However, is race-based redress best way to redress disadvantage / inequality in all its complexity? • Declining interracial but rising intraracial inequality • Perpetuation of race-consciousness • Class supplemented by race-based initiatives; urban-rural; language etc?