The re-evaluation of principles of fairness, rationality and proportionality in affirmative action cases in South Africa

Abstract

The purpose of this study is to determine what role fairness, rationality and proportionality play in the implementation and interpretation of employment equity plans and affirmative action in South Africa. The recent judgment of the Constitutional Court in S.A. Police Service v Solidarity obo Barnard was the second case where the affirmative action clause in South Africa's Constitution was directly considered by the Constitutional Court. The majority judgment re-affirmed the rationality standard as the standard by which the constitutionality of affirmative action measures should be tested. However, two of the minority judgments held that the appropriate standard should be fairness and proportionality respectively. Chapter 1 of this study is an introductory chapter providing the reader with the problem statement, research question, research methodology and a general overview of the research. Chapter 2 consists of an overview of affirmative action in South Africa. It provides an overview of the pre-1994 apartheid laws and policies, whilst considering the Employment Equity Act, and some of the issues which may arise in the implementation of affirmative action measures. Chapter 3 critically analyses the concepts of formal equality and substantive equality. Chapter 4 consists of a critical analysis of fairness, rationality and proportionality in order to determine their role in affirmative action cases. A legal comparative analysis is undertaken in chapter 5 to determine what lessons can be learned from the Canadian experience. The conclusions that can be drawn from this study are the courts have required that affirmative action measures must be implemented in a fair, rational and proportional manner. The rationality standard, although not perfect, is nonetheless the most suitable standard by which the constitutionality of affirmative action measures ought to be tested as opposed to either a fairness or proportionality standard.