The South African Constitution and other legislation provide for the implementation of affirmative action measures for the protection and advancement of persons who have been disadvantaged by unjust laws. This thesis was supported by many challenges in the implementation of affirmative action measures.
Introduction
The Introduction and Background
Although legislation prohibits the implementation of quota systems3, numerical targets and quota systems have become the norm for the implementation of affirmative action.
The Statement of Purpose
The Problem to Be Analysed
It also provides for positive discrimination “measures intended to protect or promote persons or categories of persons disadvantaged by unfair discrimination.”6. However, the application of affirmative action measures has often been haphazard, with irrational share schemes and demographic figures leading to numerous challenges and the erosion of legal protections and benefits for certain designated groups.
The Aims of the Research
This paper examines the affirmative action measures in foreign jurisdictions, their implementation and the challenges they faced. Finally, this document will attempt to illustrate the factors that should be taken into account to ensure that there is a fair, reasonable, rational and consistent application of affirmative action.
The Research Methodology
He states that the prioritization of the designated group cannot be challenged as discriminatory until. It is clear that affirmative action must favor individuals or a group of individuals who have been victims of past discriminatory laws. Affirmative action has been interpreted in a way that has established a hierarchy among the members of the designated group.
It is clear that affirmative action should favor persons or a group of persons who have been victims of past discriminatory laws. Section 9(2) of the Constitution provides that the beneficiaries of affirmative action are persons or categories of persons disadvantaged by unfair discrimination. This chapter has been an exposition of the elements, presumptions, and general law underlying affirmative action.
However, the policy of affirmative action has created disarray due to polarized interpretations of the law. The fatal error made by the SCA (which was later dealt with by the CC) was its reliance on Article 9(3) of the Constitution. The court ruled that “… the main difference between numerical targets and quotas is the flexibility of the standard.
In essence, the study showed that there is a need for proper administration of the affirmative action policy.
The Research Questions
Conceptual Framework
This study rejects the principle of judicial deference which postulates that decisions left to policy makers should be beyond judicial review. It is imperative that there is accountability for any matter that affects members of the public, therefore no subject should be left to the exclusive discretion of politicians.
Literature Review
The author does not address the possibility of arbitrary design and implementation of capital plans. It is clear from the writing of the article that it was written before Barnard's case26.
Introduction
Definition of Affirmative Action
Affirmative action measures were first used in the United States in 1961 to promote measures that achieve non-discrimination. whereas affirmative action measures in the United States were designed to protect and promote the interests of minorities against the privileged majority within their society; in Malaysia, affirmative action measures were designed to encourage and favor members of the majority population.
The South African Context
The South African Legislative Framework
The Constitution guarantees the preservation of equality and the prevention of unjustified discrimination.49 Because of this provision, there have been many challenges in the interpretation and application of affirmative measures. In this study, attention should be drawn to the provision that beneficiaries of positive action measures must be persons or categories of persons who have been disadvantaged due to unfair discrimination.
Equality
This means that the nature of the facility and its intended purpose are examined. If it is proven that the discrimination was necessary to implement positive discrimination measures in accordance with the provisions of the Constitution and the EEA, then the discrimination would not be unfair. However, the wording of Article 9(2) of the Constitution provides for provisions for both individuals and groups on the basis of positive discrimination measures.
Council,128 this requirement ensures that there are clear, recognized standards by which to measure or test the implementation of affirmative action and ensures full participation in program creation. What becomes clear at the end of the case is that the EEA in mandating affirmative action requires the exercise of a discretion that involves a balancing of all factors relevant to the decision. Suffice it to note that the main difference between numerical targets and quotas lies in the flexibility of the standard.
It is submitted that if the application of affirmative action is evaluated in the way the majority reasoned, the benefits of affirmative action will be an illusory right for some persons in certain groups. If the impression that affirmative action has become an illusion to other members of the particular group is to be limited, the need to give reasons should be provided for by law in the EEA. The essence of the third chapter was a critique of the ways in which affirmative action has been implemented.
The discussion of the provisions of the EEA that provide for affirmative action served to show what the law says about affirmative action.
Equality of Persons from Designated Groups
Dignity
The Kantian moral philosophy says that dignity is what gives an individual its intrinsic worth.76 Therefore, in section 10, the constitution requires that everyone has the right to have their dignity protected.77 The constitution goes further from recognizing the equal worth of people to sanctioning pro. -active measures to protect this right to dignity.78 The court in National Coalition for Gay and Lesbian Equality vs Minister of Justice found that anything that builds insecurity and vulnerability into an individual based on an immutable trait violates that individual's dignity .79 Although dignity has not been clearly defined, understanding of it can be found in the way it informs other rights and how it is enforced and protected. A claimant in an equality dispute will be required to prove not only that he has been disadvantaged, but also that the challenged measure disrespects him as a person or has fundamentally impaired his or her right to dignity or a sense of equal worth. 81 The position has been confirmed in President of the Republic of South Africa and Another v Hugo,82 where the claimant based his claim on the basis of gender but could not prove that his rights to dignity were impaired. One of the ways to accord people equal dignity and respect is by seeking to protect the fundamental choices they make about their own identity.
It often happens that the implementation of affirmative action creates the impression that certain group members are being punished for the atrocities of their ancestors.86 To address this gray area, the CC considered that such a shortcoming should be viewed in the light of the policy that the affirmative action seeks to achieve.87 The judge warned that such a justification must not totally sacrifice the dignity of members of non-designated groups who are considered better off. So in cases where it appears that individual dignity has been compromised for the benefit of a class of persons, it must be scrutinized in the light of the need to correct the imbalances in current society. The courts must give deference where decisions are made in a way that balances the mandate to achieve representativeness with a full appreciation of the individual.”90.
Designated Groups
In George v Liberty Life Association of South Africa,97 Landman J, stated that the Constitution recognises the fact that even within a disadvantaged racial group “there may be and indeed are persons who have had opportunities and who have not been, or not be disadvantaged to the extent of their fellows.” In his view affirmative action in a South African context is not primarily intended for their benefit.98. The reference to ‘persons or categories of persons, disadvantaged by unfair discrimination’ clearly favours individuals themselves who have been disadvantaged, as well as individuals who themselves may not have been victims of unfair discrimination, but who belong to a category which has been disadvantaged.99In Stoman v Minister of Safety and Security and Others,100 Van Der Westhuizen J , held that the emphasis of affirmative action is on a group work category of persons who have been disadvantaged by unfair discrimination. The process of transformation must be carried out in accordance with the provisions of the Constitution and its Bill of Rights.
But to achieve the goals set out in the Constitution, what needs to be done in the process of transformation will inevitably burden some members of the community at times more than others.”104. Jurisprudence on affirmative measures shows that the implementation of affirmative measures becomes complicated when it comes to a person who is repeatedly discriminated against, for example an Indian woman. The next chapter deals with the implementation of positive measures as envisaged by the EEA.
Conclusion
Chapter 3: Implementation of Affirmative Action Measures
- The Provisions of the Employment Equity Act
- Employment Equity Plans
- Rationality
- Proportionality
- Quotas
- Absolute Barriers
- Conclusion
- Introduction
- Background
- Issues
- Causes of Action and Affirmative Action
- Challenging the Constitutionality of the Measure Itself
- The Lawfulness of the AA Measures (The Plan)
- Challenging the Manner of Implementation of a Lawful Plan
- Fairness
- Settling Conflict of Rights
- Absolute Barriers
- Critical Analysis
- Conclusion
It is not enough that the aim of the measures in question is to remedy past discrimination - the means chosen to achieve this aim must be reasonably capable of doing so. It is about whether the decision is rationally reasonable in relation to the reasons given for it and the purpose of the measure. The applicants submit that the content of the Department of Correctional Services EEP is inconsistent with the EEZ as viewed through the lens of the Constitution.
The LC172 concluded that the failure to promote Barnard was a decision based on race and constituted discrimination that was unfair and inconsistent with the provisions of the EEA. The CC affirmed the LAC's position that the legitimate implementation of restitution measures is not subject to an individual's right to equality within the meaning of Article 9(3) of the Constitution. As previously stated, the CC noted that the Barnard case was not about the constitutionality or legal validity of the police-devised EEP (the validity of the plan was never challenged).
It therefore followed that the reasons given by the Commissioner were the subject of investigation to determine the fairness of the execution. The majority, as long as there is underrepresentation, regardless of size and other factors.
Recommendations
- Flexibility
- Furnishing Reasons
- Regional Demographics
- Compulsory Training
- Conclusion
The above recommendations are based on the case law developed in the field of affirmative action lawsuits. The concept of positive discrimination is based on its purpose, which is to undo the effects of apartheid. This insight has also led to the way in which the policy of positive discrimination is implemented.
The selection of affirmative action beneficiaries should be consistent with demonstrable need and disproportionality in representativeness. If implemented correctly, affirmative action will contribute to the achievement of an equal society. O Dupper and C Garbers, "The prohibition of unfair discrimination and the pursuit of affirmative action in the workplace in South Africa".