Bee: Helping or Hurting?. Anthea Jeffery
said, would have the advantages of increasing ‘political cohesion’ and limiting ‘public debate’ about the transformation process.
In 2007 the Strategy and Tactics document adopted by the ANC at its Polokwane national conference had a similar message. It began by stressing the need for the ANC to advance the national democratic revolution by deploying its cadres to all centres of power. In addition, it went on, the ANC should use its cadres to influence ‘the intellectual and ideological’ terrain and ‘promote progressive traditions within … universities and the media’. In 2012 the Mangaung national conference reaffirmed these goals.89
Initiatives supposedly aimed at redress provide a useful fig leaf for the ruling party’s determination to control autonomous universities. An undiluted power grab would be likely to attract domestic and international opprobrium. By contrast, state efforts to help ‘normalise’ the demographic profile of university staff and students are likely to win broad endorsement – even if the effect is to leave universities with only the outer shell of the independence they once enjoyed.
3. Affirmative Action in Employment
For some years before 1994 both government departments and private sector employers were already appointing more black managers and putting significant efforts into a ‘soft’ form of affirmative action based mainly on training and mentoring. This was prompted partly by the skills shortage among whites and partly by the imminent transition to black majority rule.
This ‘soft’ form of affirmative action, as noted in Chapter 1, focuses on ‘inputs’ (training and mentoring to improve the skills of the disadvantaged) rather than ‘outputs’ (racial targets or quotas). An inputs-based approach to affirmative action is also what is envisaged under the equality clause (Section 9) of the 1996 Constitution, which generally requires strict adherence to equality before the law but also authorises appropriate remedial measures to ‘protect or advance those disadvantaged by unfair discrimination’.1
However, within little more than a year of the 1996 Constitution entering into force, the ANC put forward an Employment Equity Bill that focused on racial targets, rather than on increasing skills. It also required the attainment, over time, of demographic representivity at all levels of the workplace.
The Employment Equity Act of 1998
The Employment Equity Act of 1998 was published as a bill in November 1997, enacted into law in 1998, and brought into operation in December 1999. At the time of writing, it had thus been in place for some 15 years. It bars unfair discrimination on racial and at least 15 other grounds, this prohibition applying to all employers irrespective of their size. By contrast, the affirmative action provisions of the statute apply only to ‘designated’ employers. These are defined as employers, whether in the public or private sectors, which either employ 50 or more people or have annual turnover exceeding specified thresholds.2
Designated employers must ensure that ‘black people’, women, and the disabled are ‘equitably represented’ at all levels of the workforce, while black people are expressly defined as ‘Africans, coloureds, and Indians’. However, the Population Registration Act of 1950, which established these categories and set out rules for classifying South Africans into them, was repealed by the National Party government in 1991. Hence, there is no longer any legislation that defines these categories or explains how classification is to be achieved.3
The Employment Equity Act seeks to cater for this by requiring (in regulations first gazetted by the minister of labour in 1999 and since regularly renewed) that all employees should ‘voluntarily’ classify themselves as ‘white’, ‘Indian’, ‘coloured’, or ‘African’. More than two decades after the National Party ended racial classification, the ANC government has thus breathed new life into a system that would otherwise long since have ended. Moreover, if employees refuse to classify themselves or provide ‘inaccurate information’, employers must take over the task of racial classification, using for this purpose ‘reliable historical and existing data’, whatever that may mean.4
Once employees have been identified by race, employers must use national and regional demographic data to assess the degree to which black people are ‘under-represented’ at any level in the workforce. This in turn depends on how far the proportion of black employees at any level differs from the black share of the economically active population (EAP) – those people between the ages of 15 and 64 who either work or are seeking jobs. Africans, coloured people and Indians currently constitute 87% of the economically active population at national level, making this the target for black representation that employers are expected to achieve. In addition, since Africans make up around 75% of the EAP, this is the ultimate target for African representation at all levels.5
Though the Employment Equity Act expressly ‘excludes’ the use of ‘quotas’, employers are expected to set ‘numerical goals’ and apply ‘preferential treatment’ to black people to correct for under-representation and ensure their equitable representation at every level, from the most junior up to senior management. Though only black people who are ‘suitably qualified’ are entitled to preferential treatment, this criterion is broadly defined. It may depend on formal qualifications or relevant experience, but it also suffices if a black person has ‘the capacity to acquire, within a reasonable time, the ability to do the job’.
Failure to make ‘reasonable progress’ towards demographic representivity, or to comply with various other requirements, is currently punishable by maximum fines ranging from R500 000 for a first offence to R900 000 for a fifth similar offence within three years. These fines are to be tripled or more under amendments recently adopted, as further explained in due course.6
Designated employers must report to the Department of Labour on the progress they are making towards demographic representivity. At present, larger employers with 150 employees or more must report on 1 October every year, while smaller employers with fewer than 150 staff members must report every two years. (However, now that recent amendments to the Act have taken effect, all employers will have to report each year.) The reports submitted by employers in both the public and the private sectors are analysed by the Commission for Employment Equity, a body established under the Act to monitor the implementation of the statute and make recommendations to the government on any necessary changes.7
The 75% target for African representation is problematic for several reasons. For one, it assumes that all Africans between the ages of 15 and 64 who work, or wish to work, are eligible for management posts. In practice, however, such positions commonly require post-school qualifications, along with significant experience in the workplace, which people under the age of 35 are unlikely to have acquired. Yet in 2002 – two years after the Employment Equity Act came into force – economically active Africans in the age cohort from 35 to 64 made up only 34% of the economically active population, making 34% a more realistic target for African representation at management levels. In addition, in 2001 only 276 000 Africans of working age held a degree or other post-Grade 12 qualification, making even a 34% target too ambitious.8 However, these salient considerations were ignored in the limited debate that surrounded the Employment Equity Bill.
Limited debate regarding the Bill
When the Employment Equity Bill was released and brought before Parliament for adoption, the government argued that the measure was needed to:
■ provide redress for the pervasive racial discrimination of the apartheid era;
■ put an end to current racism;
■ bring about the ‘norm’ of demographic representivity at all levels;
■ stimulate growth by expanding the black middle class and its purchasing power;
■ reduce black-white inequality; and
■ help stabilise society and prevent a revolt by the poor.9
The Institute of Race Relations was one of the few organisations to challenge the validity of these arguments. It warned against the Bill’s likely economic and other costs, and criticised its reintroduction of racial classification. It also cautioned against the way in which it ignored the skills deficit,