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Thesis Com 2013 Charles S (1).Pdf The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgement of the source. The thesis is to be used for private study or non- commercial research purposes only. Published by the University of Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University of Cape Town 1 A CRITIQUE OF THE CONCEPT OF DISADVANTAGE IN RELATION TO THE IDENTIFICATION OF AFFIRMATIVE ACTION BENEFICIARIES: RACE AS PROXY FOR DISADVANTAGE By Stephen Charles Supervisor: Prof Alan Rycroft University of Cape Town Dissertation presented for the approval of Senate in part fulfilment of the requirements for the degree of Master of Philosophy in the Department of Commercial Law FEBRUARY 2013 2 PLAGIARISM DECLARATION I hereby declare that I have read and understood the regulations governing the submission of Masters of Philosophy dissertation, including those relating to length and plagiarism, as contained in the rules of this University, and that this dissertation conforms to those regulations. University of Cape Town Signature: Student No: CHRSTE004 Date: 08/02/2013 3 DEDICATIONS This work is dedicated to my wife, Michelle and children (Erin and Stephen) for their support and patience throughout my years of study. This degree is for the family. University of Cape Town 4 ACKNOWLEDGEMENTS My indebtedness and gratitude goes to many individuals, in particular my supervisor Prof Alan Rycroft for his valuable input and patience in my journey to produce this research and secondly to Prof Ockert Dupper for shaping and guiding my thoughts during the embryo phase of this research and lastly to my manager, Ernst van Vondel, at Power Construction for his support and understanding. University of Cape Town 5 TABLE OF CONTENTS Contents DEDICATIONS ....................................................................................................................3 ACKNOWLEDGEMENTS ...................................................................................................4 Chapter One ..........................................................................................................................7 INTRODUCTION .................................................................................................................7 1.1 Introduction .................................................................................................................7 1.2 The research question ................................................................................................. 11 1.3 Rationale and aim of the research ............................................................................... 12 1.4 Motivation of the research question ............................................................................ 13 Chapter Two........................................................................................................................ 18 THE CONCEPT OF EQUALITY ....................................................................................... 18 2.1 Trajectories of equality and impact on redress measures ............................................. 18 2.2 Notions of equality and the South Africa approach ..................................................... 20 2.3 Section 9(2) of the Bill Of Rights – Concept of disadvantage ..................................... 28 2.4 Section 6(2) of the Employment Equity Act - Concept of designated groups .............. 31 Chapter Three ...................................................................................................................... 35 AFFIRMATIVE ACTION AS REDRESS MEASURE ....................................................... 35 3.1 Introduction ............................................................................................................... 35 3.2 Definitions of affirmative action ................................................................................. 37 3.3 Models of affirmative action ...................................................................................... 38 3.3.1 The compensatory model ...................................................................................... 39 3.3.2 The diversity model .............................................................................................. 42 3.3.3 The integrative model ........................................................................................... 45 3.3.4 The discrimination blocking model ....................................................................... 47 3.4 Affirmative action approaches in the two jurisdictions ............................................... 48 3.4.1 Introduction .......................................................................................................... 48 3.4.2 AffirmativeUniversity action model applied inof South Cape Africa ................................................. Town 49 3.4.3 Affirmative action model applied in the United States of America ........................ 53 Chapter Four ....................................................................................................................... 58 THEMES IN AFFIRMATIVE ACTION DISPUTES .......................................................... 58 4.1 Introduction ............................................................................................................... 58 4.2 Levels of scrutiny in the two jurisdictions .................................................................. 58 4.3 A walk through themes dealing with affirmative action disputes ................................ 61 Chapter Five ........................................................................................................................ 75 AN ALTERNATIVE ASSESSMENT OF DISADVANTAGE ............................................ 75 5.1 Introduction ............................................................................................................... 75 5.2 Class-based or socio-economic disadvantage .............................................................. 78 5.3 How will we determine socio-economic disadvantage and possible implications of the approach? ................................................................................................................... 82 6 5.4 Conclusion ................................................................................................................. 85 BIBLIOGRAPHY ............................................................................................................... 88 TABLES Table 1: Total and per capita income, 1970-2000................................................................. 27 Table 2: Trends in poverty and income distribution ............................................................. 36 University of Cape Town 7 Chapter One INTRODUCTION 1.1 Introduction Policy makers have often grappled with the intricate issue of identifying affirmative action beneficiaries. The selection of affirmative action beneficiaries are at times done according to criteria which often create resentment and tension among groups.1 It is imperative to keep in mind that selection criteria are dependent on the outcomes – the redress program wishes to achieve.2 Affirmative action beneficiaries usually include ethnic groups, national or racial minorities or majorities, aboriginal people, women, people with disabilities and war veterans.3 The above description highlights the point that historical disadvantage or current disadvantage is necessary to guarantee benefits under such a redress initiative.4 The pertinent question that arises, is how one may possibly or should identify disadvantage? It is acknowledged that a correlation between race, discrimination, disadvantage and inequality, exist. Interrogating these multifarious concepts in isolation is complex. Adding to this complexity is the fact that these concepts at times does not stand in isolation, but intersect.5 In the United States and South Africa opposition to affirmative action argues that too much emphasis is placed on race in the identification process of affirmative action beneficiaries, resulting in tension and resentment among groups.6 These tensions culminated in many court contestations, specifically by white University of Cape Town 1 M Sithole et al „Affirmative action in South Africa: A panacea for addressing the imbalances of the past?‟ 2005 AIB-SE (USA) Annual Meeting, Charleston, SC 310 at 314. 2 To compensate for past wrongs; bring about diversity, block past and current discrimination and to bring about integration by eliminating segregation, to mention a few. 3 J Faundez Affirmative action international perspectives 1 (ed) (1994) at 34. 4 K Adam „Affirmative action and popular perceptions: The South African case‟ (2000) 37:2 Society 48 at 50. 5 J Amoah „Constructing Equality: Identity and intersectionality in Canadian and South African Jurisprudence‟ (2004) LLM dissertation at University of Cape Town, Cape Town at 12. 6 J Pretorius „Affirmative Action‟ in Pretorius J L et al Employment Equity Law (2011) at 5-6. 8 males.7 Affirmative action is controversial, because it is viewed as a political contest of who gets what, when and how.8 The race-based approach to affirmative action in South Africa does not really contribute to the constitutional ideal of non-racialism.9 Racism is thus seen as one of the unintended consequences of affirmative action.10 This unintended consequence impacts negatively on the legislative intent to ultimately
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