Geslag en Regstellende Aksie in die Werkplek
Thesis (LLM (Mercantile Law))--University of Stellenbosch, 2005.
The concept of affirmative action, in contrast to discrimination, does not have a universal uniform meaning. On the one hand affirmative action can be seen as an attempt to promote equal opportunities for individuals or groups previously disadvantaged by discrimination. On the other hand, its application is controversial when black people, women and disabled people are given preference, for example, when decisions are made that preclude the appointment of better-qualified candidates. Affirmative action therefore has pros and cons, depending on the approach adopted. In South Africa affirmative action, as defined in s 15 of Employment Equity Act 55 of 1998 (EEA), is seen as a measure that ensures equal employment opportunities and equitable representation of suitably qualified people from designated groups. Affirmative action thus enjoys legislative recognition and is judicially developed by the courts. Nonetheless the concept is problematic. A specific concern is the fact that the meaning of affirmative action is even more elusive when the conceptual relationship to discrimination and equality is examined in an effort to identify its theoretical foundation. Affirmative action is aimed at pursuing working conditions that promote a real, and not just theoretical, realisation of rights. It focuses on addressing the burden of discrimination, which is still borne by certain groups in society. In Harmse v City of Cape Town  6 BLLR 557 (LC), the court found that the broader idea of constitutional equality implies that the elimination of unfair discrimination includes affirmative action. The court based its reasoning on s 9(2) of the equality clause of the Constitution, wherein provision is made for measures, such as affirmative action, that are “designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination…” In Dudley v City of Cape Town  5 BLLR 413 (LC) the court found that the EEA distinguishes between the prohibition of unfair discrimination and affirmative action, as contained in chapters II and III of the Act, regarding approach, aim and application. This however does not imply that the two concepts are in no way connected. Another area of concern relates to doubts surrounding the effectiveness of affirmative action. The gender gap in the workplace becomes apparent when the labour market composition is taken into consideration. This emphasises the fact that affirmative action is not accomplishing sufficient transformation to further equality in the workplace. The origin of the problem lies in the fact that the impact of affirmative action depends on the approach to equality (be it formal equality, equality of opportunities or substantive equality) that it is designed to promote. Another affirmative action dilemma is the problem of enforcement of measures of this nature. Other alternatives, such as diversity management where both the employer and the employees benefit, should possibly be considered as a method of effectively empowering women to ensure that they can compete successfully with men in the labour market. Diversity management ultimately appears to have a social, as well as an economic advantage in the development of equitable representation of disadvantaged groups in the labour market.