Die bereiking van gelykheid en die beperking van regstellende aksie
Jansen van Rensburg, Heinrich Casper
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This mini-dissertation focus on the possibilities of making an end to the programs of affirmative action as well as the legislation promoting and enforcing affirmative action, once the goals of affirmative action have been achieved. It is therefore necessary to discuss the goals of affirmative action with reference to relevant case law, as well as the Employment Equify Act 55 of 1998 in light of the Constitution of the Republic of South Africa, 1996. It is argued that a time will come for South Africa when most designated employers have complied with the regulations and requirements of the Employment Equity Act. The notion of substantive equality is also discussed as well as how it is applied in South Africa. An argument is made for looking at the position of the individual within the group to see which individuals had really suffered under the discrimination of the past. Certain categories of people are currently benefiting from affirmative action programs only due to their membership to a particular group. The possibility of a sunset clause for legislation promoting affirmative action is also investigated. The case is made that there is a need for affirmative action in South Africa but that it should not continue to be applied when it is no longer necessary for remedying the wrongs of the past. The conclusion is reached that a person that had not suffered due to the discrimination of the past should not benefit from affirmative action. The Constitution however and in particular the case of Minister of Finance & others v F J van Heerden 2004 1 2 BLLR 1 1 8 1 supports a substantive notion of equality. It will thus be difficult to investigate individual cases and circumstances of individuals that may benefit from affirmative action. When such a degree of equality is achieved in South Africa that one can no longer say that the inequalities that exist are due to the discrimination of the past, then only will there no longer be a need for affirmative action in South Africa. In such a scenario the notion of substantive equality, which is one of the prime considerations supporting the idea of affirmative action, may be the very tool that may be used to make an end to affirmative action.
- Law