Has affirmative action become an illusionary right for certain designated groups?

Master of Law in Labor Law. University of KwaZulu-Natal, Durban 2014

South Africa consists of one of the most diverse societies in the world, comprising of people from different cultures, race, religion, gender and languages. During the apartheid era, unjust laws were applied to create disadvantages amongst races and gender. Women as well as people from the African, Coloured and Indian races were subjected to exclusions from amenities of life, education and labour arenas under the apartheid regime. With the emergence of democracy, the acknowledgement of the injustices perpetuated against these classes of people and the quest to achieve an egalitarian society, the need for restorative measures developed, in order to redress the disadvantages that those classes of people endured. The South African constitution and other legislation provides for the implementation of affirmative action measures in order to protect and advance persons who have been disadvantaged by the unjust laws. However the application of affirmative action measures have often been done in an arbitrary manner, with irrational equity plans, resulting in numerous challenges to the implementation of affirmative action measures, eroding the statutory protections and benefits of certain designated groups thereby creating disillusionment among those groups. This thesis was prompted by the numerous challenges to the implementation of affirmative action measures. It analyses the aims and objectives of affirmative action measures, the various legislative provisions as well as the approach by the courts. This thesis also examines the various issues pertinent to the implementation of affirmative action measures, such as the right to equality, equality of persons from the designated group, dignity, employment equity plans, quotas, absolute barriers and targets, and identifies possible solutions to the problem of implementation. This thesis also examines the recent CC case of South African Police Service v Solidarity obo Barnard, which identifies and analyses virtually every issue pertaining to affirmative action measures. This thesis also provides clarity concerning the factors that should be considered when drafting the employment equity plan in order to ensure that the plan is not haphazardly drawn. It concludes with recommendations on the implementation of the employment equity plan to ensure that the plan is not arbitrarily or capriciously applied, thereby ensuring firstly, that the measure is fairly applied and secondly, that those adversely affected would understand and appreciate the purpose and need for the implementation of the affirmative action measures.