Date: 15/07/2009

Source: Solidarity

Title: SA: De Klerk: Speech by the former State President to Soldarity's International Conference on Affirmative Action

In preparing the speech I will now deliver I had to make some choices. Do I speak on the subject of Affirmative Action in a broad and philosophical sense? Or do I address the subject from a South African perspective and within the framework of our Constitution and our legislation?

I decided to choose the latter approach but will of course deal with questions of broader concern in question time as they arise. The title which I have decided upon is "Affirmative Action and the Elusive Search for Equality."

The achievement of equality is one of the principle values on which the new South Africa was founded. Despite this, we have made little progress during the past 15 years in achieving a more equal society. Although the top quarter of the population have benefited greatly since 1994 more than half the population still live in abject poverty and almost a third are unemployed. For the majority of South Africans the vision of equality and social justice expressed in the constitution remains something which lies in the future.

Our failure to effectively promote equality is not only a constitutional disappointment: it is a threat to the long-term stability of our society.

There can also be little doubt that the policies of previous dispensations contributed to this inequality. For generations government policies seriously hobbled the ability of black South Africans to accumulate wealth.

Under these circumstances there can be no doubt about the need for special measures to promote equality. Nothing I say today should be interpreted as if I do not wholeheartedly support special measures. Our Constitution is a transformative document. Its intention is not simply to maintain the status quo. It requires all of us to establish a society based on social justice. It calls on us to improve the quality of life of all citizens and to free the potential of each and every person.

Within this framework, a central question is: What do we mean by equality?

Some regard it as an empty concept "with no substantive moral content of its own". Former Constitutional Court judge Laurie Ackermann links it to the "common and immeasurable human worth" of people. In the Constitutional Court's view equality of human dignity lies at the heart of the concepts of equality and non-discrimination.

The Constitution provides some guidance in helping to define equality:
• in the first place it proclaims that "Everyone is equal before the law and has the right to equal protection and benefit of the law".
• Secondly, equality also requires that nobody should be subjected to unfair discrimination of any kind."
• Finally, Section 9.2 states that "Equality includes the full and equal enjoyment of all rights and freedoms set out in the Bill of Rights.

Does the requirement that everyone has a right to "full and equal enjoyment" of all these rights mean that everyone has a right to an equal amount of property; equally large houses; equal bank accounts; and equally advanced education? This would not appear to be the Constitution's intention. The requirement is for "access to adequate housing", "sufficient food and water", and "basic" education and "basic" adult education.

Accordingly, Prof Francois Venter points out that the Constitution deals with the concept of equality throughout as a value. According to him inequality is a natural fact that cannot be undone by the creation of a right to be equal. However the Constitution can and does create a right to equal protection and advantage of the law. Specific concrete, context-determined rights can also be deduced from the constitutional provision that everyone is equal before the law.

What Prof Venter says is demonstrably true. There is little or no possibility that, given mankind's varied talents there is any prospect that any society will ever be able to attain a condition of absolute material equality. The last one that tried was Pol Pot's regime in Cambodia. Even supposedly communist countries like China and Viet Nam perform only moderately when it comes to equality and fall into the same range as the archetypal capitalist United States. The most equal countries in the world are Japan and social democracies like Sweden where the top ten percent earn only six times as much as the bottom ten per cent.

There are of course, and quite rightly so, strong arguments that equality requires more than simply equality of opportunity - that it also implies that there must at least be progress towards greater substantive equality of outcomes as well. The Promotion of Equality and the Prevention of Unfair Discrimination Act states specifically that

"Equality includes the full and equal enjoyment of rights and freedoms as expressed in the Constitution and also includes de jure and de facto equality, as well as equality in terms of outcomes."

What does equal standing before the law mean if one has no socks and shoes to stand in?

It is then further argued that greater equality of outcomes, require a more equal distribution of wealth. Indeed, when most observers refer to the degree of equality or inequality in a society they almost invariably have in mind the degree to which material benefits are distributed.

South Africa's failure to achieve greater income equality is reflected in the fact that, according to the UN Development Programme, it is one of the most unequal societies in the world. Our GINI coefficient of .66 has remained virtually constant since 1994. It is deeply ironic that the income gap between black and white South Africans actually closed more rapidly between 1970 and 1994 than it has done since then.

It was with this degree of inequality in mind that the framers of the Constitution provided in Section 9 (2) that

"to promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination, may be taken."

The provision for remedial or restitutional equality in Section 9 (2) has, in turn, become the fountainhead of all subsequent affirmative action and black economic empowerment legislation. It is accordingly important that there should be absolute clarity about its requirements:
• firstly, any of the legislative and other measures contemplated under this section must promote the achievement of equality;
• secondly, they must advance persons or categories of persons who have been disadvantaged by unfair discrimination.

However, there is mounting evidence that affirmative action, as practised in South Africa, does not always promote equality and that many of the beneficiaries of affirmative action and BEE measures cannot be described as disadvantaged.

There is accordingly good reason to question the manner in which the state has gone about the crucial challenge of promoting equality. There is also reason to ask whether affirmative action has been an effective measure in promoting the achievement of equality and whether there are not other measures that the state should consider in this regard.

There are a number of problems with affirmative action, as we know it:

• Firstly, most affirmative action and BEE measures affect only the top 15 per cent of the income pyramid and have little or no impact on the condition of the bottom 85 per cent of our society. It is like playing musical chairs in an airliner - while the vast majority of the population watches helplessly from the ground. The manner in which affirmative action has been applied means that a small minority of the black population has benefited quite significantly, while the great majority has been left behind. This has substantially increased inequality within the black section of our population.
• Secondly, in implementing affirmative action those involved have too often overlooked the requirement that beneficiaries should be suitably qualified. The Fair Employment Act of 1998 states that

"Affirmative action measures are measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer.

No thinking person can reasonably quarrel with this formulation.

The problem is that there are at the moment simply not enough suitably qualified black South Africans to fill their proportional share of all the highly skilled technical and managerial posts in the private and public sectors.

Despite progress, black South Africans in 2009 still accounted for only 17% of the candidates who passed the chartered accountants final exam. In 2008 only 23% of the engineers registered with the Engineering Council of SA were black.

The reality is that the wholesale appointment of people who are not suitably qualified has been a major factor in dysfunctional service delivery by the state - particularly at the municipal level. Unbalanced affirmative action has undermined the right of millions of ordinary South Africans to equal enjoyment of many of the basic rights in the constitution - including most notably
• the right to life and security;
• the right to health care, food, water and social security; and
• the right to education.

By so-doing unbalanced affirmative action has actually undermined the right to equality.

• Another problem is that the guiding principle behind the implementation of affirmative action has too often been the ideology of demographic representivity. The Constitution requires demographic representivity only in the public service and the judiciary. It stipulates that "public administration should be broadly representative of the South African people" - but it goes on to require that employment and personnel management practices should also be based "on ability, objectivity and fairness" and on "good human resource management and career-development practices."

In practice, the application of representivity in public administration has often ignored the countervailing requirements for ability, objectivity, fairness and good human resource management. The precipitate departure of 120 000 trained and experienced whites from the civil service has undoubtedly been a major element in the marked deterioration in the provision of public services, especially at the municipal level.

Because of its ideological commitment to demographic representivity the government would rather leave posts vacant than fill them with qualified whites. Its alleged refusal to appoint qualified whites to key vacant posts in the police's forensics units have been a major factor in the poor performance of those units - to the detriment of South Africa's ability to fight crime.

The Constitution does not require the application of demographic representivity in the private sector and in civil society - provided that nobody discriminates unfairly against anyone else on any of a number of grounds, including race, gender, religion or language. In particular, demographic representivity cannot and should not be applied in organisations that have a cultural or religious nature.
o It makes no sense to require that 80% the staff of Afrikaans newspapers should be non-Afrikaans-speaking black South Africans.
o How can an organisation like the Afrikaans Christelike Vroue Vereniging - be representative of the demography of the country as a whole? Nevertheless, the ACVV does excellent work - much of it to the benefit of disadvantaged black communities.

Finally, the manner in which affirmative action is being applied too often constitutes unfair discrimination - and therefore adds to the sum total of inequality in society.

The simple reality is that income and education levels in South Africa no longer coincide exactly with race - particularly in the top 15% -20% of income earners. For example, there are almost two million black, coloured and Indian South Africans who have higher education qualifications than almost three million whites. Another five million have the same education qualifications as these whites. There are more than 2 million black, coloured and Indian South Africans who earn more than 1.6 million whites.

It is accordingly impossible to implement the remedial measures envisaged in Section 9.2 without taking into account the actual circumstances of the individuals involved - particularly when it comes to affirmative action appointments or promotions. Clearly, if a black, coloured or Indian candidate from the privileged education and income group is "advanced" because of his or her race over a white South African from a less privileged education and income group, the result will not "promote the achievement of equality" but will increase inequality in society. It is difficult to see how such discrimination could possibly be regarded as "fair" in terms of Section 9(5) of the Constitution and would accordingly be in contravention of the prohibition against unfair discrimination.

Balanced affirmative action involving the appointment of suitably qualified people from disadvantaged groups can and must play a constructive role in promoting equality - particularly in addressing residual conscious and unconscious discrimination. However, experience has shown that affirmative has not been effective in promoting the kind of equality required by the Constitution.

If the state genuinely wishes to promote equality - as envisaged in Section 9 (2) - it should concentrate on measures that will provide all our citizens with much greater access to ‘the full enjoyment of all rights and freedoms' - and in particular to the right to decent basic education, security, housing and health services.

The roots of inequality lie in poor education, poor services and unacceptably high unemployment.

• We shall not be able to advance the achievement of equality until we can provide all South Africans with decent education.
o Of the 1.67 million children who entered the school system in 1995 only 34% made it to matric in 2007.
o Of these 1.67 million children only 22% passed matric and only 5.2% did so with the exemption required for university.
o Finally, only 1.5% passed maths at the higher grade - most of whom were Whites and Asians.

How - under these circumstances - are we supposed to promote equality and produce the black candidates that we need to take up leadership positions throughout society and the economy?

• How will we be able to ensure real equality before the law and equal protection and benefit of the law in circumstances where a quarter of a million people have been murdered since 1994 and where the great majority of the population simply does not have access to the courts?
• Real equality can best be promoted by the provision of decent social, municipal and medical services. Government has made progress in this regard by building more than 3 million houses since 1994. More than 13 million South Africans now receive children's and old-age allowances. However, such transfers do not promote equality - they simply help to provide minimal subsistence for those involved.
• Finally, the right to equality of almost a third of our population is fatally undermined by the fact that they are unemployed. The consequences of unemployment are devastating for the people concerned and for our whole society. Unemployment is at the root of the deep poverty in which half of our population subsists; it is inevitably interwoven with unacceptable crime levels; and it is one of the main causes of the persistent inequality which negates one of the foundational values of our Constitution.

The measures on which the state should concentrate in its efforts to promote equality in terms of Section 9 (2) of the Constitution should not primarily centre on the present type of affirmative action and BEE - although these have a role to play. They should instead be focussed on uplifting the 50% of our population that is most disadvantaged through the provision of decent and effective education; through the delivery of effective health, municipal and social services - and above all through the creation of jobs.

We should set a national goal to substantially decrease our GINI coefficient - and the inequality in our society - by 2020.