03090550010770201

Affirmative Action:
A Comparison between South Africa and the

United States
by
Izelde Louise van Jaarsveld BIUR LLB (Pret), LLM (Hull)
Managerial Law 1
2 Volume 42 Number 6 2000
Contents Page
I. Introduction 5
II. General Principles 6
A. A Definition of Affirmative action 6

B. The Philosophy of Equality and Equal Opportunity 6
C. The Justification for Affirmative Action 7
D. An Approach in Reasoning 8
III. Affirmative Action in the United States 9
A. Background 9
B. Legislation 11
C. The Implementation of Affirmative Action 12
D. Practice versus Reality 13
E. The Present - An Observation 16
IV. Affirmative Action in South Africa 17
A. Background 17
B. Legislation 18
C. The Implementation of Affirmative Action 19
D. Practice versus Reality 21
E. The Present - An Observation 23
V. Evaluation 24
A. A Comparison between Affirmative Action in the United States and in South Africa 24
B. Conclusion 27
VI. Bibliography 29
References 41
Managerial Law 3
I. Introduction
The publication of a draft bill on affirmative action in South Africa is imminent. In the United States af-
firmative action which has a history of more than thirty years was declared unconstitutional. Issues of
segregation and discrimination are not new in the United States and in South Africa. Both countries
have had the opportunity to address their past policies through affirmative action programmes. Be-
cause a growing economy demands a stable work force the implementation of affirmative action pro-
grammes is one of particular importance in the work place. The purpose of this study is to follow
affirmative action in the United States in order to determine what has led to the denouncement of the
programme. The answer to this question may prove essential to South Africa, which currently has the
opportunity of improving its affirmative action programmes in order to ensure the effective continu-
ance of its remedial policies.
In the first part of this study the discussion will focus on the principles of equality and justice in order
to justify affirmative action and clarify the need for it. In both the United States and in South Africa af-
firmative action can be defined as a programme which demands the appointment of a black person
above a sometimes better qualified white candidate in order to obtain equal representation in the work
place.1 Affirmative action is necessitated by past policies of discrimination which have left legacies of
unequal racial representation in most employment spheres . In Part 2 affirmative action in the United
States will be discussed with reference to the background of segregation, the relevant legislation and
the manner in which the programme was implemented. Academic opinions and relevant court rulings
will be discussed in the fourth section. A similar pattern of discussion about affirmative action in South
Africa will be followed in Part 3 of the study. In Part 4 the situation in both countries will be compared
and similarities pointed out in order to ascertain whether lessons could be learned from the American
experience of affirmative action.
What are perceived to be the problems with affirmative action ? Problems seem to exist with the
costs required to create affirmative programmes and with the money necessary for education and train-
ing.2 Affirmative action is critised3 as being only beneficial to those who have suffered least from past
discrimination and as a burden to those who least participated in previous discrimination. Some per-
ceive affirmative action as reverse discrimination4 because it condones the appointments of blacks and
the exclusion of qualified white workers. Objection is made to the longevity of the remedial pro-
grammes5 ; those who are suffering today in order to compensate the victims of past discrimination
may have to be the ones in need of future compensation. Remedial programmes seem to subordinate
the individual to the group6 ; some blacks are receiving preferential treatment while it is being denied to
others. Blacks seem to be gaining not because of merit but because of being black.7 The so-called un-
fairness of affirmative action can be found in the fact that impoverished white people who are suffering
are not receiving benefits from the policy8 .Advocates of affirmative action see the programme as a de-
nunciation of racism and the only way of offering compensation to victims of the past.9 By promoting
socio-cultural diversity affirmative action is predicted10 to create an understanding between black and
white . Remedial programmes should recognise the effects of past discrimination and can address
them. It is suggested11 that affirmative action is the only way to ensure future equality : without the pro-
gramme the effects of discrimination may result in the loss of much needed potential.
How to reconcile the different opinions pertaining to affirmative action is not an issue which will be
the focus of this study. As a starting point it is accepted that affirmative action is a controversial but
necessary policy. Its justification through the principles of equality and justice should be seen as the
background against which the policy has been initiated. To avoid confusion the terms black and white
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will be used to refer to the parties involved. It is recognised that distinctions can be made among af-
firmative action in the work place, in educational milieus and pertaining to gender. The focus of this
study will be on affirmative action in the work place although some of the sources used may refer to
other forms of affirmative action. This work will discuss the affirmative action position in South Africa
as it is until June 1998.
II. General Principles
“All animals are equal but some animals are more equal than others”12
A. A Definition of Affirmative Action
Defining affirmative action without reference to justice and equality is impossible.13 The concept of
justice can be divided into two categories:14 distributive justice which refers to an obligation to expand
actions for the beneficiaries (give them the chance they should have had)15 and correctional justice
which refers to equitable conduct in order to achieve the goal of equality. Equality refers to the princi-
ple of similar treatment irrespective of background or race.16 It is suggested17 that affirmative action
should refer to programmes which lift the discriminated into higher participation with the effect of a re-
versal of earlier discrimination. Affirmative action could be seen as an “auditing system”18 which
alerts organisations about the discrepancies between qualified citizens and their utilisation in the or-
ganisation whilst demanding the correction of racial imbalances which the system has pointed out. The
demolition of racial segregation and social imbalances are included in the body of affirmative action.
In the United States affirmative action is defined19 as the setting of goals and the writing of timetables
which should create equality and social balances in the work place.
Affirmative action could be seen as a synonym for positive action20 ; positive action should call for
actions which will aim at offering help to past sufferers of discrimination. Why should affirmative ac-
tion be associated with the creation of balances ? Affirmative action is intended to restore diversity in
situations where previous discrimination practices excluded it,thus its association with social justice
and fair balances should be undeniable. In South Africa affirmative action is described as a ‘tool of jus-
tice’21 which could rectify past discrimination practices whilst contributing to the demand for equality
and equity. It is suggested that affirmative action should be defined as an active attempt of integration
and social restructuring .
B. The Philosophy of Equality and Equal Opportunity
A consideration of the term equality is necessary. The formal principles of justice demand the equal
distribution of social and natural resources.22 If it is accepted that every person should have an opportu-
nity of a good life then it should be the public’s duty23 to ensure an equality in which unrepresentative
classes could secure the same benefits as were previously denied to them. The equalisation of opportu-
nities is not a removal of social barriers but a process of balances24 which has to be achieved. The aim of
equality is the acceptance of differences in all cultural and ethnic surroundings. To achieve equality
comprehensive non-discrimination practices and an understanding of a duty to minimise social unrest
are required.25 With the reinstatement of certain racial groups an elimination of differences in class and
ability is possible. This striving towards an acceptance of cultural diversity can result in an affirmative
action which could promote certain inequalities.26 To prevent this affirmative action should be seen as
a chance to create new achievements and not as a punishment for the past. Complete equality27 may be

difficult to achieve but with the acceptance of cultural diversity the goal towards social justice should
be achievable.
An understanding of the principle of equal opportunity could clarify the relationship between af-
firmative action and equality. Equal opportunity grew out of the multi-cultural approach and focuses
on the cultural diversity of life styles with a view to further cultural pluralism.28 Black progress can be
accomplished by adhering to the policy of equal opportunity; most forms of discrimination can be re-
moved by granting equal chances.29 Before subscribing to the policy of equal opportunity one should
be sure that the dominant values and goals of society are what is needed; different social policies could
create more inequalities.30 If affirmative action strives to address previous discrimination the question
being asked is how equal opportunity can be achieved while affirmative action is being critised31 as be-
ing reverse discrimination? It should be admitted that affirmative action which promotes equal oppor-
tunity does include unfair discrimination- this discrimination stems from a desire to help those who
have suffered in the past.32 One should accept that even if this discrimination may not be entirely justi-
fiable it should in some ways be morally excusable33 if taking past discrimination into consideration.
Equal opportunity is based on the three principles of merit, equality of life chances and liberty in fam-
ily.34 All the conditions of life could be addressed with equal opportunity in terms of competition and
predisposed circumstances. It should add to merit the additional requirements that those with similar
abilities should have similar chances.35 Affirmative action will create a sense of equality and equal op-
portunity by granting a chance to victims of past discrimination.
C. The Justification for Affirmative Action
The justification for affirmative action can be found in the principles of justice and equality. In defining
affirmative action reference is made to social justice and the concept of equality. What is meant by so-
cial justice in terms of affirmative action ?
1. Justice
Justice consists in the constraints on themselves which rational people would agree to as the prize
which has to be paid in order to obtain the co-operation of others36. Utilitarian justice is described37 as a
comparison between the rights of the individual and the rights of society. A ‘common-sense’ concep-
tion of justice proclaims the duty of society not to ignore any policy which holds the prospect of welfare
improvements for all38 .Utilitarian justice gives permission for an individual’s right to equal treatment
to be qualified by what should be the best for society, while ‘common-sense’ justice demands from so-
ciety a correction of previous discrimination practices. Last mentioned is criticised in that the outcome
of correctional measures through affirmative action would result in renewed racial tension.39
To obtain justifiable affirmative action programmes preferences should be given to deserving indi-
viduals40 thus balancing the gains of the individual with those of society. Individual merit can be
reached if the norms of the legal order and individual rights are correctly utilised. It is argued41 that af-
firmative action can only equal justice if it is applied in favour of people who have actually been de-
prived of opportunities; the application of affirmative action programmes can result in the
discrimination of impoverished white workers because of the denial of employment in favour of af-
firmative action applicants.42 The formulation of any kind of justice describes the philosophy of ‘re-
nder to each one his due.’43 A society which agrees that past discrimination need to be addressed should
acknowledge that affirmative action based on fairness can be the best solution available. Justice as fair-
Managerial Law 7
ness45 has a moral conception which is embodied in the human character and social life. The usage of
this kind of fair justice would demand a society which accepts a new conception of justice necessary to
regulate the structures of life.46 The justification for affirmative action can be seen in this new way of
thinking. It is accepted 47 that society needs to pay a price if equality based on justice is the desired out-
come. The concept of justice accepts affirmative action as a form of restitution for past wrongs.There
may be truth found in the suggestion that justice can not be done as long as it incorporates a form of dis-
crimination.48 It is opinionated that affirmative action would resolve the effects of past discrimination
by granting a chance to the victims of it. The desert principle of justice 49 indicates that by allocating
goods to deserving individuals based on what has previously been done to them can justify the unfair-
ness of affirmative action.
2. Equality
Equality is defined50 as a subjective state of mind; individuals should be offered equality without the
need to demand it. With the recognition of individual differences groups should not be seen as simil-
iar.52 The right to equal treatment originates in the attributes of uniqueness and a demand of dignity.53
Similar treatment of people succeeds equal treatment and takes diversity into account54 . It may not be
the meaning of equality which has resulted in an omission, but rather the application of it. This can be
counteracted if equality is qualified by results and opportunities.55
Goals of achieving equality should be set to suit the prevailing circumstances. General affirmative
action programmes can be justified where results are slower perceivable, while in contrast, specific ac-
tions may be needed where the necessary skills and abilities are at hand. What does this mean in the
context of affirmative action ? Notions of inequality may be largely inconsistent and limited56 . Equal
chances57 for individuals should not be a goal which has to be maintained in all situations; rather it
should be perceived as a goal subsidiary to the goal of having individuals confronting one another on
equal footing. Last mentioned could be seen as the goal of affirmative action: bringing individuals on
equal footing in order to make employment competition fair and just.
It should be accepted that all programmes can not result in absolute fair equality- individual varia-
tions in talent and skills will have an influence58 .Affirmative action does not proclaim to bring forth
absolute equality. What it does proclaim is addressing the effects of discrimination through remedial
policies. In both South Africa and the United States two kinds of equalising programmes are applica-
ble. Segregation and disparate treatment are addressed in equalising programmes59, while social and
economic inequalities are addressed by substantive (positive action) programmes.60 The question be-
ing asked is how affirmative action can have as its goal equality when the practice of it is discriminating
against white workers? It is stated that as there could be no specification of who has caused discrimina-
tion so should there be no specification of who is to carry the blame for it61 .This idea of responsibility
could explain the paradox of discrimination in equalising programmes: society should be responsible
for the consequences of past discrimination. 62 Although future inequalities may be inevitable the no-
tion of fairness,reciprocity and justice should be admitted as being part of social reality63 .Affirmative
action should not try to portray itself as an all encompassing remedy.
D. An Approach in Reasoning
It is accepted that South Africa and the United States have appalling records concerning their treatment
of black people. There should be no denial that the 1990’s society is adamant that inequality be ad-

dressed and victims of discrimination be given an opportunity to catch-up with the rest of society. The
problem seem to exist in finding a fair and acceptable way of reaching equality. For the victims of dis-
crimination it may not be a matter of ‘catching-up’ but rather a way to see justice being done. Does this
justify a programme created to bring about equality while in encompassing discrimination ? In the pre-
vious passages it was shown that justice as a norm can include and justify unfair results as a way to
atone for the past. Even though society may accept the concept and necessity of equality justifying af-
firmative action through justice and equality may not be enough. A discussion on rights in general may
clear -up this issue further.
Aristotle’s frame of equality can be perceived as a principle which should be the basis of society if
unrest is to be averted64 .The right to be treated as an equal should not be novel in South Africa and in
the United States65 .In an affirmative action context this right should be seen as a remedial right 66
which will apply to groups which are suffering as a result of past oppression. Any right can combine
ideas of ethics and morality with religious believes and political agendas .67 If it is accepted that rights
do not exist in a vacuum but address social structures, then it may seem more fair to perceive affirma-
tive action as society’s way to ensure equality through programmes which in their imperfection may
create inequalities. The features of rights are connected to what it is to be a human being ;68 having
rights give people a moral significance 69 to claim their place in society.
Another way of justifying affirmative action is found in the understanding of the doctrine of double
effect. If there exist two effects in every action (one which is intended, another which is unintended )
the responsibility for these actions falls on the intended.70 The foreseeable effect of affirmative action
is the exclusion of people who have benefited from past discrimination. Affirmative action does not in-
tentionally exclude a certain group of people, thus the unintended exclusion (discrimination) should be
perceived as an undesirable side-effect.71 By acknowledging affirmative action as a way to address
past unfairness the unintended results can be accepted as long as the programme is effective.
It is suggested that by taking the consequences of discrimination in consideration the benefits of af-
firmative action can justify the inherent unfairness which is perceived to exist. Even if the majority of
people, who are currently being discriminated against because of affirmative action, did not engage in
past discriminatory practices the consequences of the remedial actions should be the burden of the
whole society.72 The justification for affirmative action can be found in the forecast of a future where
no remedial actions were taken: neither social unrest nor a lost generation of people should be accept-
able over affirmative action. A question in need of addressing is how long affirmative action should be
tolerated? Justice and equality could not exist in time-phrases. In order to keep the justification for af-
firmative action fair and accurate it is suggested that the practice should not exist indefinitely. Society
is bound to demand foreclosure.
III. Affirmative Action in the United States
“Mend it, don’t end it “73
A. Background
Since the nineteen-sixties Americans have been conscious of the discrepancies in the opportunities be-
tween white and black people. With the implementation of Title 7 of the Civil Rights Act of 1964 the
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US Congress tried to address discrimination by prohibiting it on bases of race, colour, religion, sex and
national origin. Affirmative action programmes were installed in 1965 through Executive Order 11246
by the Johnson Administration ; federal contractors were obliged to use affirmative action to ensure
non-discrimination in hiring practices.74 Even though affirmative action were not always accepted75
the congress and judiciary seemed unsure how to address the complaints and outcries which followed
the programmes over the next twenty years. In 1996 the 5th US Circuit Court of Appeals agreed that the
constitutionality of affirmative action is flawed and queried the validity of race-based admission pro-
grammes.76 After more than thirty years in practice the question which should be asked is why affirma-
tive action has progressively been seen as an unwanted practice. In this section the path of affirmative
action will be followed in order to ascertain whether the programme has led to its own destruction and
if any lessons could be learned from it.
As early as in 1776 with the American Declaration of Independence to section 2 of the Constitution
of 1789 the issue of discrimination has been acknowledged as being part of American history. The
Civil War in the eighteenth century is perceived to be the result of black slavery and white suprem-
acy.78 During the Reconstruction period black codes and anti-black believes compelled the US Con-
gress to add the Fourteenth and Fifteenth Amendments to the constitution; in both Amendments blacks
were affirmed as equal citizens of the US and guaranteed equal protection of the law. The so-called Jim
Craw laws, which provided for segregation were not abolished till the passage of the Civil Rights Act
in1964.79
The nineteen-sixties can be seen as successful times for the black movement. The Civil Rights Act
tried to abolish the South’s Apartheid system with the creation of an Equal Employment Opportunity
Commission (EEOC) which administered complaints even though no enforcement powers were
given. Different executive orders were issued to solve racial tension. Executive Order 11246 is still
seen as the primal source of affirmative action ;80 through the EEOC and the Office of Federal Contract
Compliance affirmative action was promoted and employers compelled to employ black workers. In
1972 the Equal Employment Opportunity Act gave the power of enforcing affirmative action to the
EEOC 81 and for the next fifteen years affirmative action programmes were used and recognised by the
federal government and the courts.82 White opposition groups criticised affirmative action as not only
unfair to individuals but in resulting in the appointment of less qualified people.83
It was found in 198484 that even though a large majority of black Americans expressed support for
race specific affirmative action it has received less support in the black community than it did twenty
years earlier. In 1991 President George Bush tried to pass new civil right legislative which would have
determined that institutions which continue to supply black students with special scholarships would
not receive federal funding. Because of large public opposition the legislation was withdrawn. Presi-
dent Clinton stated in 1995 85 that affirmative action could work when it is perceived as flexible, fair
and not as reverse discrimination. After the 1996 Supreme Court decision white America joined forces
against affirmative action. Proposition 209 in California was voted in whereby positive action in state
appointments was forbidden86 .Its enactment was stopped by a preliminary injunction issued by Chief
Justice Henderson of California.87 It is against this background that the United States are trying to de-
termine the future of affirmative action .Where remedial action was acknowledged in the early seven-
ties and eighties it would seem that the nineties generation will try to establish equality through a
different criteria than one based on race.

B. Legislation
Many of the legislative efforts in the US seem to evolve around the principle of equal opportunity. Ex-
cept for executive orders issued by the White House no mention is made to the term “affirmative ac-
tion”. In the Civil Rights Act of 196488 Titles 3 and 7 have been acknowledged as granting to
affirmative action its legitamacy.89 Where section 2000A of Title 3 entitles all people to’ full and equal
enjoyment of goods’ section 2000 (2)(a) of Title 7 prohibits unlawful employment practices-it is where
employers would hire a person on the basis of his race, colour ext. Other sections in Title 7 are mention-
ing the term “preferential treatment” to describe remedies available to employers when addressing ra-
cial imbalances in the work place.90 It would seem that Title 7 permits race conscious programmes; it
was stated 91 that affirmative action is not intended to maintain racial balances but to eliminate racial
imbalances. Because affirmative action focuses on the elimination of racial imbalances Title 7 can not
be perceived as forbidding an employer to adopt a racially- conscious remedy.92 It was acknowledged
that Title 7 did not provide for remedial actions which set hiring goals with the effect that seniority in
the work place would be overlook when it comes to redundancies.93 In none of the court cases the judi-
ciary has provided Title 7 with a constitutional balance between group-regarding and individual-
regarding interests.94
Executive orders (E.Os) issued in the nineteen-sixties were ways of the White House to re-enact its
support of affirmative action programmes. Affirmative action in E.O. 11246 (1965) is interpreted as
requiring something beyond passive non-discrimination.95 Unlike affirmative action under Title 7 the
federal government did not need court findings of discrimination to make affirmative action a condi-
tion for receiving federal contracts.96 The director of the Labour Department’s Federal Contract Com-
pliance Programme (OFCC) stated97 that affirmative action under an E.O. demanded active
race-conscious hiring. Executive Order 1124698 required federal contractors to use affirmative action
to recruit blacks even if there was no evidence to suggest previous discrimination. This order has been
criticised 99 because affirmative action was to create difficulties in persuading all members of society
to accept the concept of equal opportunity. On the one side the US government can be seen to promote
equal opportunity while on the other side it has issued E.Os which in short demanded unequal promo-
tion. One might speculate that an optional enforcement of affirmative action might have resulted in no
affirmative action at all thus the White House felt it necessary to ensure its enforcement.
The Civil Rights and Women’s Equity in Employment Act of 1991100 has provided for damages in
employment discrimination suits and granted employers the defence101 of ‘business necessity’ when
looking to employ a white person. Earlier 102 it was accepted that the term ‘business necessity’ would
demand a look at the extent to which it would influence hiring criteria and disparate practices. For em-
ployers it may prove easier to defend an appointment by stating that the black candidate did not possess
all the necessary skills as required by the business. Even though the Congress may have attempted to
grant monetary relief to victims of discrimination the 1991 Act may contribute to complicate matters
for affirmative action advocates.
The added Title 6 103 of the Civil Rights Act of 1964 testifies to the confusion about discrimination
and affirmative action. Section 601 states that no person should be subjected to discrimination when
applying for government assistance. Because Title 6 bans discrimination against the intended benefici-
aries it has been argued 104 that because blacks are not the only beneficiaries of financial assistance Ti-
tle 6 has resulted in white workers receiving most of the grants. In 1996 fifty-five percent of
Californians voted for the California Civil Rights Initiative which would have promoted the elimina-
tion of affirmative action programmes. The Initiative’s chairman stated105 that he as a black man him-
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self refuses to believe that blacks by definition are disadvantaged. While the affirmative action issue
may differ from political agenda to presidential beliefs it is noticeable that the people it was created for
may denounce it in favour of non-racial awareness programmes.
C. The Implementation of Affirmative Action
From the nineteen -sixties until the present affirmative action programmes were implemented through
the efforts of government agencies and state legislature. Codified in Title 7 and in the executive orders
most anti-discrimination policies are being enforced through the administrative, judicial and economi-
cal powers of the US government.106 At plant level recruitment efforts focus on the black targeted
groups.
During the seventies and the eighties the complexities of economic and legal influences have created
important issues for policy strategies107 .Through the Office of Federal Contract Compliance (OFCC)
the government was authorised to cancel contracts with companies which have violated equality poli-
cies.108 The creation of the EEOC in 1965 has had an influence on the elimination of work place dis-
crimination. After the EEOC’s enforcement powers were strengthened in the seventies it has had the
freedom to file cases in the courts when employers (after conciliation efforts) failed to implement af-
firmative action programmes.109 Because governmental programmes gave preferential treatment to
people of certain races the question arose whether race should be a factor in selections? The judiciary
seemed to require a standard of racial neutrality110 when hiring, but in the Washington-case111 the court
held that ability tests are not unconstitutional solely because they may have a racially disproportionate
impact. Under the Philadelphia Plan 112 contractors had to set hiring goals of blacks as a condition for
working on government assisted programmes. The federal court upheld the legality of this plan and
E.O. 11246 which placed it in operation113 .
In Fullilove 114 the court found that the use of racial and ethnically criteria as a condition for federal
grants violated the equal protection component of the due- process clause of the Fifth Amendment. It
would seem that the courts in general interpreted statutory provisions to the advantage of blacks; where
the statute was not ambiguous it was passed along racial lines.115 It can not be said that the implementa-
tion of affirmative action programmes were not problematic; for the judges who had to decide the le-
gality of these programmes no precedent was set while employers who favoured race-bias hiring
programmes may have had to face lawsuits on the one side and the losses of federal contracts on the
other side. In Cleveland116 and Paradise117 the courts upheld the validity of preferential promotion
schemes which included racial quotas. In the Paradise- case the court found11815 that although preferen-
tial promotion benefited blacks who were not discriminated against in the past it can be justified under
the equal protection clause.
The Supreme Court gave in 1989 new authority to white men to challenge decrees which contain
court-approved affirmative action programmes119 . It has been stated120 that colour-conscious remedies
exacerbate racial tensions and contravene the goals of civil rights. It may be narrow-minded to describe
affirmative action as just a colour-conscious remedy. Some of the problems associated with affirma-
tive action may be seen in the issues of fairness between black and white; one may have to question the
political influences under which some of the cases have been decided. Affirmative action can be per-
ceived as a political remedy; the successes of many programmes can be seen in the government of the
day. It may come as no surprise that the Reagan Administration’s enforcement of affirmative action
was non-existent 121 while Proposition 209 which promoted a ban on all Californian race preferences

was supported by the conservative senator Dole in 1996.123 The Clinton Administration seems to fa-
vour an approach which is both remedial and non-discriminative. The present system of affirmative ac-
tion has little regard for race-conscious programmes; any programme aimed at increasing the number
of black workers has to receive ‘severe constitutional scrutiny’124 .This standard requires that race-
based affirmative action should be narrowly tailored to serve government interest.125
Under the economic, political and judicial influences affirmative action has been implemented
through different programmes with similar goals: addressing past discrimination practices. It would
seem that the usage of a programme without constitutional inquiry may become increasingly difficult
as the judiciary and US Congress try to combine political agendas with public demand.
D. Practice versus Reality
During the years affirmative action has been received with mixed feelings ; advocates of the pro-
gramme deemed it necessary for a desegregated society while its enemies were quick to point its flaws
out. Rather than granting the government the credit for affirmative action’s longevity one should look
at the diversity of opinions handed down in the courts. In most cases the judiciary seemed to be the
power behind the successes of affirmative action.
As early as 1954 it was agreed that racially segregated practices generate feelings of ‘inferiority’.126
The issue of the constitutionality of affirmative action reached the Supreme Court in the Defunis
-case128 which involved the challenge of a preferential programme which favoured black applicants.
Justice Douglas stated 129 that the Fourteenth Amendment commanded the elimination of racial barri-
ers in order to satisfied a theory (affirmative action) as to how society should be organised. The issue
was addressed in 1978 when Justice Powell stated130 that the Fourteenth Amendment demands the
equal protection of individuals : it is objectionable that a white applicant because of his race had to bear
the consequences of past discrimination. The Bakke -decision seemed to put into words the objection
to remedial programmes; any remedial programme would involve decision- makings in how much dif-
ferent races deserve.131 It should be kept in mind that the main goal of affirmative action is not achiev-
ing diversity but to remedy imbalances132. Rosenfeld agrees with this by stating133 that affirmative
action promotes the prospects of equality for groups which have been denied equality in the past.
Affirmative action has been acknowledged134 as ‘breaking down patterns of segregation and open-
ing employment opportunities to blacks which were previously denied to them’. Title 7 is regarded to
permit race-conscious programmes which could eliminate past discrimination135 .In the Weber-case
proof of previous discrimination was required before the court was willing to affirm a remedial pro-
gramme. Justice Brennan’s opinion in this case has relied on a justification of remedial programmes
which is partly compensatory and partly distributive.136 In 1980 Justice Powell upheld the constitution-
ality of a Congress affirmative action plan.137 By using a balancing test it was concluded that govern-
mental interest in the remedial plan has outweighed any ‘marginal unfairness’138 to white workers.
This burden, previously discarded in the Bakke-case, was resolved in Fullilove; the so-called unfair-
ness to white workers was no longer an argument against affirmative action. Greenawald opinion-
ated140 that the usage of remedial programmes would reflect on how claims based on past discrimina-
tion were weighed against claims founded on equal treatment for equally qualified applicants. Thus
far, no American court has addressed the issue of skill as a requirement for successful affirmative ac-
tion placements. Opponents of affirmative action have based their claims on the so-called unfairness
Managerial Law 13
and unconstitutionality of affirmative action. By the mid-eighties the courts have disregarded both
these arguments in favour of race-conscious, quota-based programmes.
The Stotts141 and Wygant 142 decisions were the first cases where the Supreme Court struck down on
race-conscious preferences in the context of layoffs. In the Stotts-case Justice White pointed out 143 that
Title 7 protects bona fide seniority systems and that it was inappropriate to deny an white employee the
benefits of his seniority in order to provide a remedy for discrimination. The court added that even if
the black worker were a victim of past discrimination it could not justify the dismissal of a white em-
ployee with seniority. In the dissenting opinion of Justice Blackmum it was stated144 that the main pur-
pose of the affirmative action plan in Stotts’s work place was to provide a remedy for blacks as a group
rather than to an individual member. Justice Powell145 also referred to the group impact of affirmative
action by stating that the layoff plan was not compensatory but to provide role models for black stu-
dents. In his conclusion Justice Powell ruled that the use of race-conscious layoff plans, in order to ad-
dress past discrimination, violated the Fourteenth Amendment of the Civil Rights Act. In the
Wygant-case the balancing test 146 (as used in Fullilove) may have been used again; Justice Powell
ruled that the heavy burden imposed on white employees when laid off would be constitutionally not
permissible. In the dissenting opinion Justice Marshall stated147 that the burden of any layoff would be
heavy not because of a race-conscious policy but because of the inherent circumstances which de-
manded the layoff. The ultimate goal of remedial programmes is the elimination of all racial considera-
tions from decision-making processes, thus because a racially integrated school faculty would be
better than an all -white faculty one could derive that the Wygant-plan would be constitutionally
valid149 .Support for such programmes can be seen in affirmative action programmes where remedial
efforts are consistent and of value to all involved.150 In both cases it would seem that the Supreme Court
was finding it difficult to balance the rights of individual white worker against the group rights of
blacks. These inconsistencies where affirmative action was supported in some cases but denounced in
others may account for the general confusion about the constitutionality of racial programmes.
As a direct opposite of what was stated in the Defunis-case a plurality opinion in Paradise151 ruled
that affirmative action programmes which benefit blacks who were not victims of past discrimination
can be justified under the Fourteenth Amendment. The Court of Appeals affirmed 152 that in establish-
ing a promotional quota all collective and individual interests are properly balanced The burden im-
posed on white workers by the promotional quota is described as ‘constitutionally acceptable’.153
Affirmative action by way of promotional quotas should be seen as remedial rather than punitive and as
a means to eradicate the effects of past discrimination.154 Justice Brennan noted in the Paradise-case
that affirmative action is temporary155 but failed to comment on what the time-span for ‘temporary’
should be. Fullinwider 156 criticised the use of quotas in remedial programmes; a quota would result in
people being denied employment. It is suggested157 that the use of goals rather than quotas would equal
a diverse work force in which white and black are being employed together for the sake of proportion-
ality. Flexible, short-term goals designed to indicate which factors should be taken into account when
filling a position can be justified in remedial programmes where action is needed to remedy imbal-
ances.158 One may ask exactly how the period of ‘short-term’ will be determined and on which factors
will it be based ?
The constitutionality of affirmative action based on race has been determined by a ‘strict scrutiny’
test. A remedial plan, which proposed to promote wider participation by black business owners was
considered justified under the Fourteenth Amendment if it could meet the ‘strict scrutiny’ test159 . The
majority of judges found the plan to be unconstitutional while the minority agreed that ‘strict scrutiny’
would mean compensation to actual victims of past discrimination.160 It was stated 161 that the Four-

tenth Amendment is designed to uphold equal worth and respect regardless of race and that the fulfil-
ment of constitutional equality lies in the establishment of a colour-blind society. A remedial race-
based affirmative action would serve a compelling state interest if it is compensatory in nature and de-
signed to benefit actual victims of discrimination162 .Rosenfeld 163 criticised the complexity of the ver-
dict by explaining that even though the ‘strict scrutiny’ test may seem simplistic the test’s inability to
account for the controversies which surround affirmative action meant that it failed the proponents of
equality. It would seem that the difficulty of affirmative action to overcome past discrimination is little
when compared to the difficulty of eradicating the source of all its efforts: the classification of people
on their skin colour.164
This position was affirmed in the Metro-case 165 when the court stated that racial and ethnic charac-
teristics provided a relevant basis for disparate treatment only in extremely rare situations, thus when
justifying affirmative action the reasons for using it should be clearly identifiable. The court held166
that the creation of diversity in broadcasting is a justifiable group-based reason for implementing af-
firmative action. The exclusion of white people from government posts can be permissible if it serves
the objective of creating diversity167 . In Adarant v Pena168 the court overruled the Metro-decision by
affirming the usage of the ‘strict scrutiny’ test in affirmative action thus limiting the use of racially-
based programmes to remedial efforts which are created to overcome race. A lost of trust in the US
Congress when dealing with the race issue is reflected in the Adarant-case;169 by requiring evidence of
specific and relevant discrimination before affirmative action can be justified Justice O’Conner has de-
nied the remedial purpose of affirmative actions. It is conceded 170 that for all the good results affirma-
tive action may have had more blacks are being stigmatised by it than those who are benefiting from it.
Judge Thomas pointed171 out that while segregation can not be unconstitutional it can cause feelings
of inferiority only because it has violated the principle of equal protection. In March 1996 the Court of
Appeals agreed172 that the University of Texas’s Law School maintained a ‘sub-rosa’ quota system for
black students while claiming to use race only as a positive factor. Justice Ginsberg said 173 that the Su-
preme Court by rejecting the diversity excuse for race-preference programmes has invalidated pro-
grammes which employed racial preferences. It was ruled that by attempting to increase the enrolment
of black students the law school was discriminating against white students : the Fourteenth Amend-
ment does not permit any discrimination.174 It was later stated175 that the Supreme Court had to await a
final judgement on an affirmative action programme before it can address the validity of race-based ad-
mission policies. It is pointed out 176 that individual scrutiny rather than the proxy of race may have the
power to justify affirmative policies based on race. For acceptable programmes it would seem that the
focus has to be moved away from group remedies and centred on individuals.177
What can be derived from these opinions from the judiciary? If one was hoping for a clear picture
concerning the position of affirmative action it still has to be put forward. It may not be difficult to
guess why affirmative action seemed to cause much judicial diversity. Chang 178 postulated that the ab-
sence of social values in affirmative action which warranted judicial protection has caused much of the
harm these policies seem to contain. The fact that many Americans choose to settle for symbolic an-
swers to real social problems may have created a system which yet has to find the meaning of equal-
ity180 .If nothing in the nature of affirmative action requires the use of quotas or proportional represen-
tation it should be questionable why many of the judiciary are finding the fairness of remedial policies
in the dogma of proporsionality.181 It would seem that other options of applying affirmative action are
found to be wanting. President Clinton182 may have been correct in assessing that the use of a quota sys-
tem equals rigidity and the relegation of qualifications. Krieger183 sees the solution to the affirmative
action problem in the responsibility of the courts to differentiate between intentional and unintentional
Managerial Law 15
forms of disparate treatment. A theoretical investigation into how to reduce the awareness of racial bias
is needed before a move can be made as to how racial bias should be addressed185 . It is noticeable that
the Bakke-case has first determined that for all the good intentions of affirmative action equality can
not be found in reverse discrimination policies. Nearly twenty years later the Hopwood-case brought
the issue to a full circle by referring to remedial policies as being discriminatory against white students.
Supporters of affirmative action are stating186 that selection criteria do not predict future perform-
ance but rely on fairness and existing merit standards to justify a departure from standards. It would
seem that affirmative action is using racial classification to define a class of people who are subjected
to different standards of evaluation.187 These different standards may be acceptable as part of an attack
on the historical legacy of racial discrimination.188 Kahn189 sees the problems which affirmative action
are meeting as an unacceptance of governmental structures which address sociological conditions
through remedial programmes. Tensions in the affirmative action debate may be analogous to the cul-
tural contradictions in American societies; justice and equality are suppose to equal just results which
affirmative action can not promise.190 The answer may lie in society’s perception of affirmative ac-
tion192 ; it should not be viewed as a violation of the rights of white people but rather as a guarantee that
black individuals are receiving what they would have had if not for a racist environment.While the
courts in cases such as Fullilove, Cleveland and Paradise seemed willing to affirm the use of preferen-
tial treatment in all circumstances, the judiciary in other cases such as Metro and Adarant were mostly
cautious. By limiting affirmative action to cases where discrimination can be proven some judges may
have tried to acknowledge their concerns about its fairness.Whether affirmative action should be based
on class or race may have little to do with the outcome: granting disparate treatment.It is suggested that
all this indecisiveness has contributed to the fact that America seemed tired of the affirmative action
option. Clear requirements when using affirmative action may have addressed some of the concerns if
applied years ago.Whether any affirmative action programme will be welcome in the future should be
a matter for the American public to decide- clearly the government and judiciary have shown their in-
ability to address issues in need of change.
E. The Present - An Observation
Where does the United States intend to go with affirmative action and are there any new suggestions
available which may address the problems ?
The Fourteenth Amendment to the Constitution is essential in the understanding of why affirmative
action is being criticised; the initial affirmative action expectation may not have been to alter the idea
of fairness through inequalities but to provide positive action which can provide legal equality in the
work place 193 .With this idea came the side-effect: the exclusion of white people.Yinger194 explains
this exclusion by looking at history ; even with a perfect system of equal opportunity there is bound to
exist some inequalities as the result of past discrimination. These results are unacceptable to the
American society ; it is opinionated195 that it would be a mistake to allow even remote discrimination to
justify affirmative action . Sunstein 196 stated that the fault for the controversy surrounding affirmative
action should be attributed to the judiciary which has issued casuistic rulings which do not settle much,
but granting unwanted publicity to social issues. After more than thirty years it may be inconstructive
to attribute blame for a programme which may in future be altered. The dream of changing a perception
of black and white may have been naive-it may be true that a programme which takes race into account
can not produce long-term good results.197 The usage of race seemed to have encourage Americans to
think of themselves in racial and ethnic terms.198 Kahlenberg 199 believes that by substituting race with
class an objective solution for addressing past discrimination can be found. A class-based programme

will look at family income as a way of granting preference202 .This solution is criticised203 as being in-
sufficient for achieving the goals of affirmative action; black people who are not disadvantaged will be
excluded.
It would seem that but for the enthusiasm of the government to ‘mend’ the system of affirmative ac-
tion little other support for it can be found. The fact is that the United States is faced with a society
which demands equality but, after more than thirty years of possible changes the ideal has become
mostly unwanted. It may have been the long period of different programmes which have tried patience
or it may have been the fact that white America are tired of standing back and paying for past .It will be
unfair to state that it is racial hatred which has resulted in the dissatisfaction; for more than twenty-five
years affirmative action was accepted and acknowledged by the judiciary, the government and the pub-
lic. The absence of successful affirmative action statistics coupled with American impatience may
have determined an end to remedial programmes.
IV. Affirmative Action in South Africa
“We were, I must say a slow moving, fat cat, white male, Afrikaner dominated kind of organisation.”204
A. Background
Equality and the idea of equal opportunity is a fairly new concept for most South Africans. It was not
until 1994 with the first democratic elections and the writing of a new constitution that Apartheid was
abolished. Where the United States had nearly thirty years of experience in equal opportunity practices
the situation in South Africa is different. Although there was talk about affirmative action in the early
nineteen-eighties it was and still is the nineties which are addressing issues of Apartheid and policies of
equality through the affirmative action process. South Africa’s labour history is filled with Apartheid
legislation, decisions and practices.
It was through the Industrial Dispute Prevention Act of 1909 205 that white workers through white-
only trade unions were given the right of employment within the government. The Native Regulation
Act of 1911206 standardised black employment by providing for certain procedures and penalties if
black workers were to be employed. Section 77 of the Industrial Conciliation Act of 1956207 enabled
the Minister of Labour to reserve employment positions for people of a certain race. The Bantu Labour
Act 208 excluded all blacks from the definition of ‘employee’ and prohibited registered trade unions
from including blacks as members. Not until the nineteen-sixties has economic growth necessitate the
upliftment of black workers ; any exclusion of a white worker in favour of a black would have resulted
in monetary compensation to the white worker.209 When the National Party came into power in 1948 a
policy of Apartheid which envisaged the restoration of the black tribal system and the re-establishment
of chiefs was maintained.210 The Tomlinson Commission211 which investigated the policy of separate
development was convinced that the solution for South Africa’s racial problems was the separate de-
velopment of white and black people. In 1953 the African National Congress (ANC) adopted a Free-
dom Charter which called for a democratic majority rule of South Africa.212 The South African
government reacted to it by arresting and charging a hundred and fifty-seven black leaders with high
treason. Because of South Africa’s Apartheid policy several countries severed economic ties with the
country and boycotted its products.213 In the nineteen-seventies policies of racial segregation changed
when pressure mounted for the reform of South Africa’s labour markets. The Wiehahn Commission of
Inquiry214 recommended the abolition of all forms of job reservation. It was clear that the Apartheid
Managerial Law 17
state had to relinquished to ‘free-market forces’ some economic processes and racial discrimination in
employment.216 The 1984 Constitution, in which a three-chamber parliament credited Indians, whites
and coloureds but excluded blacks led to renewed international calls to South Africa to end its Apart-
heid policy.217 A South African Law Commission stated218 in 1984 that affirmative action had to be in-
cluded in a new bill of rights which would permit temporary advances to groups which were
discriminated against before. Between the period of 1988 and 1989 the black unrest in South Africa
grew and church leaders predicted a ‘bloodbath’219 and a race-war within the country. With the release
of Nelson Mandela in 1990 the South African government declared itself willing to discuss the demo-
cratic sharing of power.220 Mandela addressed the issue of affirmative action in 1991 when he stated221
that the primary aims of affirmative action should be to re-address the imbalances created by apartheid.
Such a policy has to be based on the just and universally agreed criteria of entitlement .222 It was sug-
gested223 that a democratic government has to balance black promotions with the necessity of main-
taining a growing South African economy. In 1992 a multi-party congress for a democratic South
Africa (CODESA) was created to address specific constitutional issues and give feed back.224 On the
28th of November 1993 the Interim Constitution of South Africa was accepted and led the way towards
a constitution which provides for equality and equal opportunity in the work place. A negotiating coun-
cil concluded225 that the requirement of reasonableness should be inherent in the formulation of an af-
firmative action policy.
The history of apartheid and the commitment to democracy have led to an environment where af-
firmative action was seen as essential for future equality policies in South Africa. In this section af-
firmative action will be analysed in a South African context as perceived by mainly South African
academics . Already a need for re-adjusting the existing policies seem to exist.
B. Legislation
The main statute pertaining to affirmative action is the 1993 Constitution of South Africa226 . Section
8(3)(a) stated that ‘society will regard any measure designed to achieve adequate protection and the ad-
vancement of people who were disadvantaged by past discrimination as legitimate’. It would seem that
employers who wish to use affirmative action will have to show that the person has been a victim of
past discrimination and that the discrimination was unfair.227 The employer will have to prove that the
promotion of equality is the aim of using affirmative action, the measures employed relate to the
achievement of this aim and the measures are being applied in a consistent, non-discriminatory way.228
The word ‘unfair’ should ensure that affirmative action is used in the context of policies designed to
employ only victims of past discrimination. It is admitted229 that a white applicant may experience dis-
crimination but that it can not be judged to be unfair because of South Africa’s apartheid history. Mure-
inik230 is of opinion that the words in section 8(3)(a) ‘designed to achieve’ are ambiguous; it could
mean intended to achieve or constructed so as to achieve. The advantage of adopting a broader mean-
ing would mean that challenges to affirmative action can be defended by showing that the policy would
achieve the aim set out in section 8(3)(a) . Affirmative action would be seen to have gone to far when
the point at which any further sacrifices of the principle of merit would make black and white people
worse of is reached231 .White workers are allowed to challenge affirmative action policies only when
access to resources which they would have been entitled to in a colour-blind society is being denied232.
It would seem that section 8(3) is the only exemption to section 8(2)233 of the Constitution.
In Public Servants Association of SA v Minister of Justice234 Judge Swart stated that affirmative ac-
tion measures can not go beyond what is adequate and that the rights of all affected by the measures
should be taken into account. With reference to section 8(2) Prof Landman stated235 that it is imperative

that affirmative action has to outweigh the injunction not to discriminate on the basis of race. Different
cases237 have confirmed that there can not be ‘universally accepted bright lines’ to determine whether
or not a right to equality has been breached. Section 8(3)(a) provides an applicability of the equality
clause (section 8(1)) to both state and private persons238 . Sections 195(2)(b) and 195(3) of the Consti-
tution demand affirmative action in public administration posts - the enforcement and enactment of af-
firmative action policies are made compulsory.
The Labour Relations Act of 1995239 entitles employers to formulate their own remedial policies. It
is stated240 that affirmative action is acceptable to sustain suitable representation in the work place. In
the Western Cape -case241 the court stated that discrimination in the work place is unacceptable except
when applying an affirmative action measure. With reference to Addendum 7 it was stated242 that all
employees need to be considered equally for promotion and that affirmative action will not justify the
unfair exclusion of white workers.
Two governmental notices are in the process of furthering affirmative action in South Africa. The
Green Paper on Affirmative Action243 acknowledges that equality is the funding principle to build a
democratic society. Employment equity programmes are described244 as strategies which will ‘expose’
and redress racial injustices .The Employment Equity Act 245 (EEA) will provide for measures to re-
form the work place structure. This pending act will require employers to promote transformation with
the implementation of affirmative action agreements through work place representation, realistic
target-setting and the evaluation of remedial programmes.246 The EEA will strive to achieve equality
by outlawing discrimination and enforcing the implementation of remedial measures247 .The Bill is
criticised248 in that it seeks to remove past discrimination but repeats methods which have given South
Africa the race problem. Like the Apartheid laws the EEB demands race-classification in the work
place and could result in a black complacency in the face of the new anti-discrimination laws249 .The
Bill may expand job opportunities not for job creation but for shams and underserving250 .
The impact of affirmative action on the Constitution and other acts and bills will be vast251 .Basic
principles of responsibility, equity, proportionality and accountability need to be included in ways to
give the Constitution legality252 .The inclusion of affirmative action might be perceived as a definite
method to ensure the programme’s enforcement and counteract any claims of unfair discrimination.
Why the government has deemed it necessary to promulgate two bills on affirmative action soon after
the 1996 amendments to the Constitution is a matter for speculation. One can hope that these efforts
will ensure fair and acceptable affirmative practices. Already the courts have had to rule on the discrep-
ancies between sections 8(2) and 8(3). Presently affirmative action is being forced on employers -
clearly the spirit of reconciliation did not prevent such measures. Blumrosen stated253 that the purpose
of affirmative action acts will be to compel employers to actively address the effects of Apartheid.
Whether measures of force will make a difference is a matter of opinion.
C. The Implementation of Affirmative Action
It has often being observed that affirmative action is aimed at improving the lot of employees. A pro-
gramme which seeks to improve the lot of the employer can not be a remedial action254 .The notion that
South African motives may be mixed adds to the problems of implementing effective programmes.
The successes of affirmative action are measured by the setting of targets255 ; black representation in
the boardroom should not be less than 30 %, in equity not less than 40% and in management positions
not less than 60%. If affirmative action in South Africa were required to commensurate with the demo-
Managerial Law 19
graphic structure it could result in a 25: 5: 3:1 relationship for blacks, whites, coloureds and Asians re-
spectively.257 The task of providing training for black workers may call for the planning of resources
and new methods of coping with problems.
The implementation of affirmative action policies in different sectors is in its test phase. Other than
the setting of goals and suggesting new programmes, affirmative action was not perceived, till the mid
nineteen-nineties as an issue in need of implementation. The problem with affirmative action in the
civil service is that emphasis is placed on quantity rather than quality; 258 few qualified blacks exist who
can be incorporated into seniority positions. The outcome is that most black leader-ship positions are
filled from non-civil service persons. 259 Goals being put forward to transform the civil service have to
break down white domination, assure the implementation of affirmative action at all levels and transfer
the delivery of services to meet certain needs.260 It is agreed that affirmative action needs to be facili-
tated in the least disruptive way while other opportunities have to be created for the ‘victims’ of the re-
medial policies261 The National Party criticised the present affirmative policy by stating262 that the
employment of ANC comrades are not based on skills or capacity building. Picard stated 263 that there
can be no single strategy for affirmative action in the public service. The separation of affirmative ac-
tion from social responsibility and the creation of training opportunities should be methods of address-
ing the past.264 In the Public Servants-case265 the implementation of a remedial policy was challenged.
The court ruled that section 8(1) -equality principle- of the Constitution accommodated remedial
measures and that the policy was not the result of any ’haphazard of arbitrary’ action. Of importance it
was ruled266 that the Public Service Act267 has to be interpreted as referring to the criteria of merit rather
than to one of race.
The implementation of affirmative action by semi-state institutions such as universities is governed

by the 1993 Constitution. In the Balora-case the court ruled268 that even if an institution is privately
managed it would be included in the section 8(3) provisions .In the Motala-case the court stated269 that
special affirmative action programmes are compulsory for semi-state institutions.Olivier270 is of opin-
ion that even if mandated by the Constitution the nature of implementing affirmative action could dif-
fer from institution to institution as long as the norms of fairness are interpreted according to the
situation at hand. Mandonsela271 stated that for fair affirmative action in the public sector new merits,
for example the ability to implement social development programmes should be taken into considera-
tion. Concerns for equity and efficiency can be addressed by intensive black training programmes272 .
It would seem that affirmative action in the private sector is not based on using quotas273 ; targets are
being set for black applicants to fill positions and more time is spend on the recruitment of blacks than
on the actual numbers of black workers in employment. Even if many academics recognise the need for
employing skilled black workers the reality seems different. A low morale and productivity are per-
ceived to be the result of incorrect remedial policies where appointed black managers lack perform-
ance and the required skills274 .The Department of Defence has declared275 its willingness to eradicate
practices of tokenism in the advancement of blacks. This action may be perceived as brave as the gov-
ernment has stated that a new policy of affirmative action will be based on numeric targets and time
phases ; where the implementation is deemed to be ineffective department heads could face dis-
missal.277 It has been acknowledged278 that President Mandela’s policy on affirmative action held on
radical transformation; while trying to appease white business men broad remedial policies were intro-
duced. The stringent new policies where companies will have to convince the government of their im-
plementation of affirmative action may have resulted in the negative feelings surrounding the issue.
Sach279 is of opinion that before the question of targets and timetables should be addressed the only
means of implementing affirmative action should be by applying principles of good governance. By

addressing social changes the implementation of affirmative action should be acceptable to all con-
cerned.281
For the successful implementation of affirmative action it should not be expected of employers to
promote people who do not possess the requisite qualifications282 : any form of paternalism will have a
negative impact on the economy. Many affirmative action programmes are criticised as being little
more than ‘window-dressing’;283 un-qualified blacks who fill positions are failing expectations be-
cause they do not possess the experience needed. By implementing programmes which develop poten-
tial the emphasis can be placed on aiding those individuals who are looking for better opportuneties.284
Presently most affirmative action policies are deemed to be based on a trial by error basis.
D. Practice versus Reality
In a normal society a person should be employed if he possess the attributes which can be judged on
merit irrespective of race and colour. South Africa is a ‘non-normal society’285 ; because of a history of
discrimination remedial programmes are needed to open previously restricted opportunities for blacks.
Not many people are neutral -minded about affirmative action in South Africa286 ; the majority seem to
feel that business and society should accept black workers and value their work, but also observe that
blacks could be too emotional thus challenging work may not be of importance to them. Companies
employ affirmative action because of the need to deflect the legal and compensation costs of being
guilty of discrimination287 .The question which should be addressed is whether affirmative action has a
future in South Africa or whether it is a programme perceived as a nuisance and to be avoided if possi-
ble ?
Burton288 stated that the answer lies in a new understanding of the merit principle. South Africa
needs a revision of standards to ensure that qualified people are not excluded from consideration while
arbitrary barriers should be reassessed as to include an understanding of which merits would be in-
volved in remedial policies.289 Joubert290 warns that the careless use of affirmative action may cause a
loss in efficiency which may reduce the advantages of affirmative action. The objective of affirmative
action in South Africa is to eradicate social inequalities and the way to do this will be through propor-
tional representation in the work force.291 Lever292 has rejected this argument for proportional repre-
sentation by stating that only qualified people should be admitted to professions even if the only
qualified people available are white. Academic qualifications should not be the determining factor
when it comes to merit; family members of people who have died in the struggle against Apartheid may
have earned their places in employment positions.293 Last mentioned opinion will be disastrous for
South Africa if put into practice ; by creating ‘stereotypes’294 innocent victims will be burdened and ra-
cial politics promoted not allowing for the consequential economic chaos. The court in Minister of Jus-
tice 295 pointed out that section 212(4) of the Constitution stated that appointments in the public service
can be made only if qualifications, levels of training, efficiency and the suitability of an applicant are
taken into consideration. Representativity can be promoted by recruiting applicants at the entry level
making training available. The court ruled that the white plaintive has been discriminated against be-
cause the defendant did not recruit applicants with similar qualifications for the position: affirmative
action here did not take the interests of all the affected people into consideration.296 Judge Swart con-
cluded that representation can not be a mathematical percentage. If affirmative action is opening the
door to litigation how will the courts decide whether a programme is unfair or justified ?
Managerial Law 21
It has been recognised298 that the statutory obligations concerning affirmative action will have to
comply with the constitutional requirements relating to such programmes. Judge Mlambo299 stated that
affirmative action must be subjected to a two-stage test. The first will be whether the programme un-
fairly discriminate and therefor breaches section 8(2) of the Constitution ? On passing this test the pro-
gramme will be judged on whether it complies with the provisions of section 8(3)(a). Justice
Chaskalsen stated300 that a ‘balancing test’ should be used to determine the fairness of the affirmative
measure. The balancing process will include weighing the nature of the right (equality) which is being
limited against the importance of a democratic society based on equality. Whether the ends (a demo-
cratic society) can be achieved should be judged on whether the same can be achieved through means
less damaging. In the George-case301 the court preferred to look at the principles of fairness, equity and
the economic implications when judging affirmative action. Prof Landman found302 that because af-
firmative action is a means of ensuring that the previously disadvantaged are assisted in overcoming
their disadvantages the focus has to be on them so that society can be normalised. For this reason the
court disregarded the merits of the black appointee even when the concept of fairness was found to be
wanting.303 Brassey304 is of opinion that striking a balance should not be a statistical calculus but a rec-
onciliation of the claims of two competing values. It has been observed305 that the only issues for the
courts to consider should be whether the employer has arbitrarily discriminated against a white appli-
cant (the burden of proof will be on the employer) and whether the appointed black applicant was
qualified for the position. Last mentioned may be interesting if taken into consideration that the court in
the George-case306 stated that it would not review the skills of the respective candidates in determining
whether affirmative action is justified. The Industrial and Labour courts seem to favour an approach
based on the conceptual basis of a right to equality, the constitutional imperatives relative to the men-
tioned right and the requirements which an affirmative programme must meet if it is to be upheld307
.This conception of equality does not regard affirmative action as an exception to the right to equal-
ity.309 Rather, it requires that certain conditions are met in order to achieve substantial equality. It may
be difficult for white applicants to challenge an affirmative action appointments ; the confirmation that
affirmative action did not violate the principles of equality coupled with the inclusion of it in the Con-
stitution make any challenge on equality grounds defensible. The courts seem to be willing to allow re-
medial measures if employers are able to prove that the intention is not to discriminate unfairly.
Employers who defend an accusation of discrimination by a black plaintiff can justify the appointment
of a white worker by showing that the nature of the job demands a specific level of skill and that an af-
firmative policy is in place at the work place. In the George-case 310 the court noted that affirmative ac-
tion is a temporary measure and that once its purpose of redressing past imbalances has been achieved
it will no longer provide a defence to an equality claim. As no time limit has been set by the court and
the Constitution the duration of affirmative action programmes will remain speculative.
It may be fair to suggest that affirmative action has yet has to make its mark in South Africa. Various
opinions exist on the desirability and future of the programme. Sachs311 wrote that affirmative action
policies should not be unilaterally worked out in a government department and then announced. It is es-
sential to involve all the trade unions, staff, government leaders and companies in the creation of ac-
ceptable policies. Affirmative action which debarred white workers is disproportionately tilted
towards the principle of resolute steps to correct imbalances.312 Because affirmative action in the South
African context is part of political ideals the goals of equality should be realised in action rather than ar-
ticulated in discourse.313 The African National Congress314 sees the future of affirmative action in spe-
cial investments in rural infra-structures such as roads, schools and water. This view is acceptable as
long as affirmative policies are not used to address issues for which they were not designed for. By giv-
ing remedial policies political backing the true meaning of the goals of the policies may be forsaken to
be replaced with political whims. The government’s Redistribution and Development Programme

(RDP) could address the issue of rural infra-structure ; affirmative action in this context should be used
with reference to the employment needed on rural construction sites. As for action versus discourse ; if
affirmative action is perceived to be unsatisfactory suggestions through discourse would be an accept-
able and democratic way of improving current programmes.
Gering315 has identified two principles for an affirmative action model in management: testing by
doing and creating alternatives to demonstrate competence. Given the needs of South Africa the provi-
sion of accelerated training through remedial programmes may address some of the concerns about the
absence of skills and competence.316 Affirmative action’s first priority should be the advancement of
black people;317by creating role models and facilitating integration the programme could lead to a
non-racial society. A policy of reform should involve re-orientation of the present bureaucracy : a
change from control to interest presentation.318 Dave319 agreed with this by stating that remedial poli-
cies would be futile if social relations in institutions do not change. The fault for worker dissatisfaction
can be attributed to the fact that many companies hire and promote people by race because discrimina-
tion litigation is perceived to be a reality320. An essential shortcoming of current approaches to affirma-
tive actions is the failure to recognise that white workers can be hired in ways which affect the
successes of remedial programmes.321 A way to counteract this is by perceiving affirmative action as a
necessary component of human resource development which should be carried out in conjunction with
the components of recruitment, training and promotion322 .
In South Africa the main beneficiaries of affirmative action are perceived to be the black middle-
class and professional women of all ages.323 In order to promote a system which will hold advantages
for all concerned clear goals are needed which can be managed by a monitoring agency to ensure their
realisation324 .Authentic affirmative action serves to promote equality; in a South African setting the
need still exists for a programme which offers training for the disadvantaged and acceptable opportuni-
ties for white workers. At this stage it would seem that many South Africans see no future in the current
programmes.325 Programmes which offer undeserved promotions, employment to the unqualified and
dismissal to white employees may result in achieving more racial tension than abolishing it. It may be
obvious that the dedicated advocates of affirmative action have realised the value of combining train-
ing with remedial measures. A policy which demands the employment of the unqualified may fail in
not only achieving diversity but also in creating an equal society. Because of Apartheid many blacks
find themselves wanting in the required qualifications and management skills. The only affirmative
programme which can address this past should be one which recognises the value of experienced white
workers in the training process and the importance of promoting racial tolerance.
E. The Present - An Observation
Although progress towards the implementation of affirmative action programmes has been made there
still exist a discrepancy between the representation of black people at management levels.326 In the
middle- management positions the number of blacks being employed in South Africa has increased
from 32 % to 45%. 327 The government is perceived to have taken active steps to improve the statistics
as far as black employment is concerned, but whether it will be able to reassure many black and white
South Africans who criticise the fairness of remedial programmes is another question .
The National Party is adamant that the government through its affirmative action policies is disre-
garding merit and experience in favour of race and colour.328 The Auditor-General’s annual report
stated329 that South Africa is paying for the government’s applications of affirmative action ; in spite of
Managerial Law 23
taxation increases the country’s financial administration is deteriorating. Remedial programmes are
being criticised331 as to distinguish between the different disadvantaged race-groups ; Indians and
mixed-race people consider themselves victims of affirmative action because black applicants are ap-
pointed over the more qualified coloured applicants. Dissatisfaction over the way the government is
addressing the affirmative action issue has led to feelings of white resentment. The South African
Youth Organisation is of opinion 332 that white graduates are being reduced to ‘second-rate’ citizens.
Where remedial policies were supposed to create diversity it would seem that they are creating polari-
sation in the country. Emigration continues to drain South Africa of qualified and professional people.
It has been observed333 that 22% of management employees have resigned in order to emigrate to coun-
tries where their skills are recognised. A lack of confidence in the government and its affirmative ac-
tion policies are the main reasons behind the scarcity of academic, research and computer personnel.
President Mandela has recognised this problem by stating334 that South Africa can not afford to push
white workers aside: ‘they have a role to play in the country’. The present Employment and Equity
Bill336 proposes a three-phase process as a way to prevent allegations of reverse discrimination. This
process will demand efforts which will strive towards equality by taking the influences of Apartheid,
the assessment of potential abilities and the evaluation of existing work structures into consideration.
The Bill provides for equality policies337 which are designed to protect individuals and encourage
change over an agreeable period of time .An Employment Advisory Council (EEAC)338 will be created
to monitor the process and ensure that proportionality principles are adhered to. The provision339 that
all employers will be able to obtain information and debate specific measures may point towards a will-
ingness to keep the implementation of remedial policies as democratic as possible.
Because affirmative action is yet a new policy in South Africa the government does not seem par-
ticularly concerned about the negative comments directed at its programmes. One may hope that be-
cause there exist more than enough grounds to question the skills of appointed black workers the
government will recognise the importance of training programmes. The judiciary are aware that reme-
dial policies need to comply with minimum requirements if disaster is to be prevented. It would be
tragic if a country which has come this far in the process towards equality loses its hold on sensibility.
The fact that qualified professionals are leaving South Africa should be a matter of great concern.
Black workers who are promoted because of affirmative measures need to understand their responsi-
bility in keeping standards high and proving their critics wrong. The new equality which provides for
exceptions in order to bring about diversity may be a difficult concept for the old school of white work-
ers to reconcile themselves with. One can only hope that fairness, equity and common sense will pre-
vail. There can be no question that South Africa needs to come to terms with its past. The government
which has used its power to create new legislation may want to consider the position of white workers
and try to sympathise with the fear which seem to be prevailing.
V. Evaluation
A. A Comparison between Affirmative Action in the United States and in South Africa
In many instances the course of affirmative action in the United States and in South Africa is similar.
The differences between the two countries’ affirmative action policies are perceived to be in some
ways the result of different political circumstances as seen in apartheid and a difference in the under-
standing of what the policy involved.

1.The Similarities
Superficially affirmative action in South Africa and in the United States has evolved in similar ways. A
recognition of the legacies of past discrimination was followed by the implementation of remedial
policies. The legitimacy of affirmative action was strengthened by its inclusion in the legislature of
both countries while its implementation was swift and thorough. The judiciary supported the govern-
ments of both countries by recognising the importance of affirming most remedial policies. The crea-
tion of balancing tests in South Africa and in the US may be perceived as evidence of the judiciary’s
understanding of the inherited unfairness which results from affirmative action.
2.The Differences
If one were to take a closer look at the affirmative action situation in both countries the similarities may
seem insignificant when compared to the different ways in which South Africa and the US have chosen
to steer their remedial policies. It may be fair to observe that even though the US has had nearly three
decades to perfect its affirmative policies, the way of handling it was somewhat haphazard without a
clear understanding of the policy’s effects and purposes. Where South African legislature refers ex-
plicitly to affirmative action, the term was omitted in American legislature. This may have being the
result of a desire to broaden the application of affirmative action as much as possible. The American
executive orders have demanded affirmative action without proof of past discrimination : one may pos-
tulate that affirmative action was to take place without any obstacles to limit its uses. The South Afri-
can implementation of affirmative action by way of distinguishing between the civil service and the
private sector may be indicative of caution and a willingness to allow freedom of choice. Where af-
firmative action is compulsory in the filling of governmental positions, the South African private sec-
tor has the luxury of determining its own policies. The American 1991 Employment Act which created
the defence of ‘business necessity’ when employing a white applicant, may be evidence of a compro-
mise between the need for remedial appointments and economic pressure; where a white appointment
can be justified by business necessity any social outcry may be irrelevant. The South African balancing
test seemingly revolves around the crux of the affirmative action dilemma : how to reconcile the right
to equal treatment with preferential treatment. Where the American balancing test evokes economic
sensibility, the South African version tackles the complexities of social rights. The reason for this may
be found in the desperation of South Africa to sort out issues as soon and as clearly as possible. Procras-
tination does not seem to be an option available in South Africa.
The Makwanyane-case has recognised the importance of alternative less damaging means to af-
firmative action. Why were alternatives never raised in the US ? One may postulate that the American
judiciary and Congress did not want to delve too deeply into the whole issue of remedial justice. Be-
cause concerns were mostly ignored the need for in-depth consideration of alternatives for affirmative
action was not recognised before it was too late. While Sachs in South Africa pleads for a combination
of affirmative action and the principles of good governance which include discourse, democratic dis-
cussions on affirmative action was not an option in the US. The reason for this may be found in a belief
that open discussion on affirmative action may remind Americans of unresolved black and white is-
sues - a situation which civil rights history has taught the US to avoid. South Africa, on the other hand,
having created democracy and social equality through the processes of discourse, may welcome any
chance to further public discussions.
It should be agreed that the unwillingness of the US judiciary to clarify aspects of affirmative action
has contributed to the failure of the programme. Rulings such as Paradise, which justified unlimited af-
Managerial Law 25
firmative action and Defunis and Croson which narrowed its application, have done little to clarify the
issue. It is suggested that while the US government demanded remedial action the judiciary found itself
with case situations which could not in fairness justify unlimited affirmative action. In contrast, the
South African judiciary seemed to have recognised their role in setting boundaries and clarifying as
many issues as possible. This may have been the result of South Africa’s successes in dealing with its
past by ensuring participation of all the parties involved.
Surprisingly enough it would seem that academics such as Greenawalt who has recognised the con-
stitutional dimension of affirmative action, could not manage to enlighten the American judiciary on
the need for limitation and clarified rulings. The willingness of the courts to affirm remedial action in
earlier rulings while, in cases such as Adarant and Metro denouncing it, may have accounted for the
growing dissatisfaction. Complicated academic analysis of issues such as whether to use goals or quo-
tas testifies to the confusion about what is relevant and what is needed. Even though most South Afri-
can academics have different opinions on the principles of affirmative action there seem to be
agreement on the essential issues, such as employing only the qualified and the importance of individu-
alising remedial policies. The fact that the South African government and judiciary seem to be in con-
currence may account for relevant academic suggestions.
Why is it that the US did not elect to create a policy based on clear guidelines while South Africa can
be seen to have a definite affirmative action policy ? It is suggested that neither the White House nor the
judiciary has realised that affirmative action would touch social values and rights in the way it did. Be-
cause affirmative action encompasses issues such as equality, racial discrimination and equal opportu-
nity an acceptable policy seems to demand in depth understanding of social values and their effects.
Brassey stated that affirmative action entitles a reconciliation of competing values. South Africa could
not afford social unrest or economic instability thus the creators of the affirmative action policy had to
ensure that the policy is clear and indicative. The US may not have wanted to consider the pros and cons
of its new policy after writing the 1964 Civil Rights Act thus discouraging in depth inquiries. It is dis-
appointing that this cautious behaviour has been carried forth for nearly three decades.
The fact that Picard has recognised that a single stategy for affirmative action will not be effective,
points a finger at the US. Individualising remedial programmes were not considered. A lack of under-
standing of the controversy of affirmative action and its effects may be the cause for this. Even though
South Africa may seem to grasp the intricacies of affirmative action, the US did not make the mistake
of employing unskilled black workers. Overzealous implementation of affirmative action may account
for these appointments. It is suggested that nearly three decades of over-zealous implementation of af-
firmative action has contributed to the programme’s failure in the US. South Africa may be wise to rec-
ognise the folly in appointing the unqualified.
In summary: The United States has had nearly thirty years of practice with the affirmative action is-
sue. While the government took part in enforcing the programmes, the courts and academics delivered
diverse opinions which have led to confusion. South Africa, although in some instances following a
path similar to that followed in the United States, is perceived to have taken the best of the United
States’ affirmative action policy and limited it with requirements based on fairness and equality. South
African courts seemed uniform in their opinions about the constitutionality of affirmative action while
the government is encouraging democratic discourse to address arising problems. Where the govern-
ment of the United States may have pledged too late to mend its affirmative action policies, one would
hope that the South African government will not act akin by ignoring the concerns expressed by acade-
mia and the public.

B. Conclusion
Affirmative action is the term used to describe remedial policies designed to ensure the equal participa-
tion of people who were previously discriminated against. Whether goals, timetables or quotas should
be used to create equal opportunity is a matter of opinion. Because quotas may result in the hiring of the
unqualified and timetables may be designed without due consideration, it is suggested that the term
goal should be used in the context of affirmative action. Affirmative action should ensure that the goal
of equality through remedial practices is reached. The purpose of this study was not to justify affirma-
tive action; it may be moot to seek justification for a programme which has been used for more than
thirty years. Rather, by explaining the need for affirmative action in terms of justice and equality the
necessity of the programme has been acknowledged. The differences in compensatory, distributive
and utilitarian justices in the context of affirmative action may not be of great importance. The idea of
creating equality in two different countries through remedial policies is a way of addressing the past
and ensuring a just future. Criticism for affirmative action seems to exist in the way the programme ex-
cludes white workers in favour of blacks. By accepting this as the result of an unintentional but foresee-
able effect of affirmative action, the exclusion can be tolerated for the time it may take to achieve
equality. The South African version of affirmative action tries to address some of the criticism by en-
couraging discourse as suggested in the Employment Equity Bill.
Questions in need of answering are why affirmative action in the United States was declared uncon-
stitutional after thirty years of practice and what should South Africa derive from this ?
It is suggested that the greatest problem with affirmative action in the United States is its duration of
more than thirty years. It is postulated that the court in the Hopwood-case had to terminate the pro-
gramme for that was what the public has been waiting for. Whether affirmative action programmes
have been terminated for reasons of constitutionality or for their lack of perceived successes may not
be important to analyse. The fact that the programme was deemed constitutional during the time it was
being used may make an inquiry into American constitutionals of little importance. Affirmative action
in the United States may have been acceptable at first because of the result it was to achieve : equal op-
portunities. Even though affirmative action was the subject of numerous court cases it is clear that the
need has existed for a policy which could change public perception of race and discrimination. While it
is accepted that to put a time limit on the creation of equality may be difficult, it is curious that neither
the American courts nor the government were willing to address the issue of when to end affirmative
action. The anomaly of reverse discrimination as a result of affirmative action may have been tolerated
because people may have been inclined to believe that this will be for a short period of time only. The
fact that the existence of affirmative action in the United States is in jeopardy should be a warning sign
to South Africa.
Even though the South African courts have stated that affirmative action would be tolerated for a
certain period of time no time limit was suggested. It may have been such vague observations which
have resulted in the Hopwood- ruling. After four year South African academics are concerned about
the appointments of unqualified blacks while the public is criticising the ousting of white workers.
These concerns should be addressed by the government in order to prevent racial tension and the down-
fall of remedial policies. Credit should be given to the way democratic procedures are included in the
Employment Bill and the role the judiciary has played in addressing the crux of what may have been the
American problem. South Africa may be wise to acknowledge that affirmative action will not be ac-
cepted indefinitely; by combining training with appointments, affirmative action may achieve equality
within a reasonable period of time. Blacks who are already denouncing affirmative action as favourit-
Managerial Law 27
ism and white workers who are rejecting it as reverse discrimination have shown that time may not be
on the policy’s side. One may postulate that affirmative action in the US has outlived its acceptance; it
may be too late to limit its application to victims of past discrimination.
South Africa is perceived to possess all the information for the successful implementation of af-
firmative action . If the programme is sensibly applied to create equality the effect of reverse discrimi-
nation may be acceptable for the time being. The need for training and using the skills of white workers
are undeniable. It is suggested that a time limit should be agreed on either by using the goals needed to
achieve equality or through annual assessment by the Employment Equity Advisory Council. Compla-
cency by all concerned should not be tolerated.

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Radin, M J “Affirmative action rhetoric” Social Philosophy and Policy Vol. 8(2) Spring 1991 p 133
Rankin, N L “Compensation vs. fair equality of opportunity” Journal of Applied Philosophy Vol. 3(1)
p 199-201
Rawls, J “Justice as fairness : political not metaphysical” Philosophy and Public Affairs Vol. 14(2)
Winter 1985 p 246
Reddy, P; Chaudee, R “Public service transformation and affirmative action perspective in South
Africa” Industrial Relations Journal of South Africa Vol. 14(1) 1994 p 29
Ripstein, A “Equality, luck and responsibility” Philosophy and Public Affairs Vol. 23(1) Winter
1994 p 18
Rosenberg, A “Equality,suffiency and opportunity in a just society” Social Philosophy and Policy
Vol 12(2) Summer 1995 pp 62-65

Schuwerk, R P “The Philadelphia plan :a study in the dynamics of executive power “ University of
Chicago Law Review Vol. 39(1972) p 723
Sinen, R L “Pluralism and equality :the status of minority values in a democracy” NOMOS Vol.
32(1990) pp 207-209
Smith, N “Affirmative action under the new constitution” South African Journal on Human Rights
Vol. 11 (1995) pp 95-97
Somerville, J “Some supposedly new sorts of discrimination” Journal of Applied Philosophy Vol.
4(2) 1987 p 191
Sonn, P K “Fighting minority underrepresentation in publicly funded construction projects after

Croson - a Title 6 litigation strategy” The Yale Law Journal Vol. 101(7) May 1992 p 1582
Sullivan, G M “Disqualification on the basis of race- a critical development in US race relations”

Anglo-American Law Review Vol. 21(1) 1992 p 28
Sullivan, G M et al “The ascendancy of the conservatives at the US Supreme Court” Anglo-American

Law Review Vol. 17(4) 1988 p 295
Sunstein, C R “Public deliberation, affirmative action and the Supreme Court” California Law
Review Vol.84(4) 1996 July p 1198
Sturn, sincerely; Guinier, L “The future of affirmative action : reclaiming the innovative ideal”
California Law Review Vol. 84(4) July 1996 p 955
Temkin, L S “Inequality” Philosophy and Public Affairs Vol. 15(2) Winter 1986 p 125
Teuhan, L S “Justice and equality :some questions about scope” Social Philosophy and Policy
Vol.12(2) Summer 1995 p 111
Tokayi, D P “The persistence of prejudice :process-based theory and the retro-activity of the Civil
Rights Act of 1991” The Yale Law Journal Vol. 103(2) p 570
Townsend-Smith, R “The role of affirmative action officers in North-American universities”

Anglo-American Law Review Vol.17(4) 1988 p 344
van Niekerk, A “Affirmative action - three cases, two views” Contemporary Labour Law Vol. 7(1)
August 1997 p 10
van Niekerk, A “Equality rights in employment :the new law begins to bite” Contempory Labour Law
Vol. 7(3) October 1997 p 24
Managerial Law 37
van Reenan, T P “Equality, discrimination and affirmative action : an analysis of section 9 of the
Constitution” SAPR/PL Vol. 12(1997) p 164
Wolf-Devine, C “An inequality in affirmative action” Journal of Applied Philosophy Vol.5(1) 1988
p 107
C. Miscellaneous
1. Documents:
- Clinton, W J :’Remarks at the National Archives and Record Administration ‘ July 19, 1995 31
Weekly Comp.Press Docs.1255 p 4
- Mandela, N ‘Opening statement to the Conference of Affirmative Action in the New South Africa’
Port Elizabeth, October 1991 pp 16-17
- The Report of the South African Law Commission 1984 p 440
- The Report of the Tomlinson Commission 1955 UG61/1955 paragraph 2
- The Report of the Wiehahn Commission, Johannesburg 1982 Part 1-6
2. Documents on the Internet:
’Nel attack ANC ‘suicide pact’ of employing comrades’ SAPA July 13 1998 at www.gcis.gov.za/
cgi-bin/vdkw/xafbea973-442/search 1
’As election looms, old issues resurface in South Africa ‘ Government Information Service June 15
1998 at www.gcis.gov.za/cgi-bin/vdkw/xafbea973-442/search 11
‘SABC denies racism determined the choice of new CE’ Government Information Service June 7
1998 at www.gcis.gov.za/cgi-bin/vdkw/xafbea973-442/search 14
’South Africa is paying dearly for affirmative action ‘Government Report of the Auditor General
May 26 1998 at www.gcis.gov.za/cgi-bin/vdkw/xafbea973-442/search 25
’Failure to implement Affirmative action could lead to dismissal’ SAPA April 28 1998 at
www.gcis.gov.za/cgi-bin/vdkw/xafbea973-442/search 29
’NP rejects new affirmative action policy ‘ Government Information Service April 28 1998 at
’Affirmative action needs new direction Government Information Service April 15 1998 at

’Employment Equity Bill critics deny history :judge Government Information Service March 26 1998
at www.gcis.gov.za/cgi-bin/vdkw/xafbea973-442/search 39
’Little for young Afrikaners to get exited about ‘ SAPA March 21 1998 at www.gcis.gov.za/
’Emigration exacerbates skills shortages’ SAPA March 16 1998 at www.gcis-gov.za/

’Employment Equity Bill -IOD (Institute of Directors) Response ‘at www.gcis-gov.za/

’Home affairs not yet representative ‘Government Report March 9 1998 at www.gcis.gov.za/
’Ministry of Public Service and Administration - Conference on Affirmative action: the Challenges
facing the SA Public Service ‘Government Information Service at www.gcis.gov.za/
cgi-bin/vdkw-/xafbea973-442/search 52
’Some implications of the EEB’ Sono, T, President of the South African Institute of Race Relations at
’Affirmative action does not redress inequalities’ The Cape Times, Dec. 5 1996 at www.inc.co.za/
archives/1996/9612/05/doom.htm
’Affirmative action and the new constitution’ ANC at www. anc.org.za/ancdocs /policy/affirm.htm
’An alternative approach to affirmative action ‘ Gering, M at www.kpmg.co.za /affirmative.htm
3. News Papers and Magazines
-Beeld: ’Affirmative action must be balanced, says SACP’ September 27 1991
-Business Times : ‘Anomalies thwart affective affirmative action’ November 10 1996 ‘Workers feel
left behind by rigid, tight managers’ February,16 1997
- The Economist: ‘White House seek to blind effect of affirmative action’ July 22 1995 p 47
- The Guardian: ‘God bless (white) America’ May 17 1997
- ’Inside America:tradegy of ‘white’ universities’ December 23 1997
- Houston Chronicle: ‘Difference of opinion about Hopwood’ March 25 1997
Managerial Law 39
- The Independent:’Affirmative action must be immediate’ March 7 1996
- Los Angeles Times:’ SA struggle to enforce AA plan’ December 26 1996
- Nander Times Global Archive:’Mandela laments white exodus from South Africa’ March 1997
- Newsweek:’Rethinking the dream” Thomas,E et al June 26 1995
- The Observer:’Martin Walker’s America:struck dumb by the race curse’ April 13 1997
- The Sunday Times (South Africa):’White Backlash’ March 31 1996 p 12
- The Times:’South Africa begins trek to democracy’ February 3 1990
- The Times Magazine:’ To avert a bloodbath’ January 14 1985

Endnotes
1 See page 5 infra

2 We wont go back making the case for affirmative action (1997) Lawrence, CR et al:Houghton Mifflin -New York p 254
3 Affirmative action Goldman, AH Philosophy and Public Affairs Vol 5(2) Winter 1976 pp 191-192
4 Reverse discrimination Nunn,WA in Cahn, SM (edit) The affirmative action debate (1995) -Routledges :New York p 23
5 Reverse discrimination- the constitutional debate (1980) Rossum, RA-Marcel Dekker -New York p 37
6 Ibid pp 36-37
7 Ibid p 38
8 Justifying reverse discrimination in employment Shet,G in Cahn (1995) p 72
9 Rossum (1980) p 27
10 Ibid p 28
11 Lawrence (1987) p 255
12 Animal Farm-A Fairy Story (1949) Orwell, g -Secker & Wartburg:Londob p87
13 Affirmative action and justice-a philosophical and constitutional inquiry (1991) Rosenfeld,M -Yale University Press:New Haven pp 12- 14
14 Moral theories of torts:their scope and limits Coleman,J Law and Philosophy Vol 2(3) 1983 Part 2
15 Discrimination and reverse discrimination (1983) Greenawalt,K -Alfred Knopf Inc.:New York p 19
16 A theory of justice (1971) Rawls, J -Clarendon Press: Oxford p 31
17 Judicial scrutiny of benign racial preferences in law school admissions Greenawalt, K Columbia Law Review Vol 75 (4) 1975 p 559
18 Affirmative action- the pros and the cons of policy and practice (1996) Tomasson therefore et al - American University Press: USA p 25
19 Equal employment opportuneties compliance (1973) Ross, JJ - Stevens & Son :London pp 35-37
20 A case for positive discrimination Parekh,B in Hepple,B et al Discrimination: the limits of the law (1992) -Mansel: London p 269
21 South African Central Government :Green Paper on Affirmative Action Notice 851 of 1997 par 1
22 Justice and equality: some questions about scope Teuhan,LS Social Philosophy and Policy Vol 12(2) Summer 1995 p 111
23 Ibid pp 132 - 134
24 Equality, Suffiency and opportunety in a just society Rosenberg,A Social Philosophy and Policy Vol 12(2) Summer 1995 pp 62-65
25 Pluralism and equality:the status of minority values in a democracy Sinen, RL Nomos Vol 32(1990) pp 207-209
26 Affirmative action rhetoric Radin, MJ Social Philosophy and Policy Vol 8(2) Spring 1991 p 133
27 Rosenberg,A p 55
28 Racialised boundaries (1992) Anthias,F et al -Routledges: Great Britain p 184
29 Affirmative action and the stalled quest for black progress (1996) Drake,WA ; Holsworth,RD -University of Chicago Press :Chicago p 34
30 Equality of opportunety and beyond Schaar,JH in Poyman,LP et al Equality-selected readings (1997) -Oxford University Press :New York p
138
31 An inequality in affirmative action Wolf-Devine,C Journal of Applied Philosophy Vol 5(1) 1988 p 107
32 Compensation vs fair equality of opportunety Rankin,NL Jounal of Applied Philosophy Vol 3(1) 1986 pp 119-122
33 Some supposedly new sorts of discrimination Somerville,J Journal of Applied Philosophy Vol 4(2) 1987 p 191
34 The dialogue of justice-toward a self-reflective society (1992) Fishkin,JS -Yale University Press:New Haven pp 30- 32
35 Rawls pp 72-74
36 Constructing justice Gibbard,A Philosophy and Public Affairs Vol 20(3) Summer 1991 p 264
37 The original position in reading Rawls Dworkin,R in Daniels,N (edit) (1975) -Basic Books: New York pp
Critical studies of theory and justice
226-228
38 The empirical study of justice Elster J in Miller,D (edit)Pluralism, justice and equality (1995) -Oxford University Press: USA p 95
39 On preferential hiring Fullinwider,R Feminism and Philosophy 1978 p 222
40 Affirmative action and American universities Ornstein,AC in Veenhoven,WA (edit) Case studies on human rights and fundamental freedoms- a
world survey Vol 5 (1976) -M Nijhof:The Hague pp 363-364
Managerial Law 41
41 Justifying reverse discrimination in employment Sher,G in Cahn,SM (edit) The affirmative action debate (1995) -Routledges:New York p 72
42 Anomalies thwart effective affirmative action The Business Times Nov. 10 1996
43 Positive discrimination, social justice and social policy:moral scrutiny of a policy practice(1987) Edwards,J -Tavistock Publ.:London p 42
45 The reverse discrimination controversy-a moral and legal analysis (1980) Fullinwider,RK -Roman & Littlefield :USA p 90
46 The reverse discrimination controversy-a moral and legal analysis (1980) Fullinwider,RK -Roman & Littlefield :USA p 90
47 The concept and conceptions of justice Flew,A Journal of Applied Philosophy Vol.2(2) 1985 p 195
48 Nunn (1995) pp 23- 24
49 Desert, effort and equality Milne,H Journal of Applied Philosophy Vol 3(2) 1986 p 236
50 The principle of equality and some dogmas of environmentalism Kurtz,P Humanist Vol 32 March 1972 p 4
52 Democracy and genetic variation Hook,S Humanist Vol 31 March 1971 p 16
53 Ornstein pp 364- 366
54 Rehnquist C J in Firefighters Local Union NO 1784 vs Stotts 467 (1984) US 561
55 Equalities (1981) Rae,D et al -Harvard University Press :Cambridge USA p 37
56 Inequality Temkin,LS Philosophy and Public Affairs Winter 1986 Vol 15(2) p 125
57 Equal treatment and equal chances Kamm,SC Philosophy and Public Affairs Vol 14(2) Winter 1985 p 188
58 Fair equality of opportunety and decent minimums-a reply to Buchanan Daniels,N Philosophy and Public Affairs Vol 14(1) Winter 1985 p 109
59 As stated in the Green Paper on Affirmative Action Notice 851 of 1997 Department of Public Services and Administration, South African Central
Government par. 1
60 Ibid par. 5-9
61 Equality,luck and responsibility Ripstein,A Philosophy and Public Affairs Vol 23(1) Winter 1994 p 18
62 Ibid p 21
63 Equality Turner,BS (1986) -Ellis Howard :Chichester p 31
64 Towards a political theory of inequality Mohanty,M in Betaille,A (edit) (1983) -Oxford University
Equality and inequality-theory and practice
Press :Delhi p 251

65 Chapter 3 of the South African Constitution 209 of 1996 and Title 7 of the Civil Rightd Act 1964 (USA) contain references to equality - See Part 3
and 4 infra
66 From individual to group Lacey,N in Hepple (1992) p 112
67 International Law (1991) Shaw,MN Third Edition -Press Syndicate University of Cambridge:Cambridge UK pp 187 -188
68 Rights, justice and the bounds of liberty-essays in social philosophy (1980) Feinberg, J -Princeton University Press :Princeton p 151
69 Ibid p 152
70 Affirmative action and the doctrine of double effect Clooney,W Journal of Applied Philosophy Vol 6(2) 1989 p 203
71 Ibid p 203
72 Goldman (1976) pp 206- 208
73 President WJ Clinton inMartin Walkers America: Struck dumb by the race curse The Observer April 13 1997
74 We want jobs-a history of affirmative action (1997) Weiss,RJ -Garland Publ. :USA p 81
75 See Part C infra
76 See Part D infra
78 Simple justice (1975) Kluger,R -First Vintage Books :USA p 47
79 Positive discrimination, social justice and social policy:(1987) Edwards, J :Tavistock Publ.: London p 123
80 Weiss pp 79-81
81 Edwards p 124
82 See Part D infra
83 Race and ethnic relations (1982) Blalock,HM -Prentice Hall :USA p 65
84 From protest to politics-the new black voters in American elections (1994) -Tate,K -Russel Sage Foundation :USA p 29
85 White House seek to blind effects of affirmative action The Economist July 22 1995 p 47

86 God bless (white) America The Guardian May 17 1997
87 Inside America:The tradegy of white universities The Guardian Dec. 23 1997
88 As amended by 42 USC 2000(e) - 2(a)(1) 1991
89 Rossum (1980) p viii
90 Title 7 sections 703(a), 706(g), 703(j)
91 United Steelworkers v Weber 443 U.S. 193 (1979) p 208
92 Rosenfeld (1991) pp 172- 173
93 Firefighters Local Union NO 1784 v Stotts 467 U.S 561 (1984) p 575
94 Rosenfeld (1991) p 215
95 Political culture wars 1960s style: equal employment opportunity affirmative action law and the Philadelphia plan Pedriana,N et al American
Journal of Sociology Vol. 103(3) Nov. 1997 p 650
96 Ibid. p 654
97 Rethinking the dream Thomas,E et al Newsweek June 26 1995 pp 18-21
98 30 Fed. Regulation amended 32 Fed. Regulation 14,303, 34 Fed. Regulation 12,985
99 The court and the constitution (1987) Cox, A -Houghton Mifflin CO :Boston pp 273-274
100 Pub. NO 102-166, 105 Stat 1071 (1991)
101 An idea whose time has come:a comparative procedural history of the Civil Rights Act of 1960, 1964 and 1991 Gueron,NL The Yale Law Journal
Vol. 104(4) Jan. 1995 p 1203
102 Ward Cove Packing Co. v Atonio 490 U.S 642 (1989)
103 Section 601 42 USC section 2000(d) 1988
104 Fighting minority underpresentation in publicly funded construction projects after Croson-a Title 6 litigation stategy Sonn,PK The Yale Law
Journal Vol. 101(7) May 1992 p 1582
105 God bless (white) America The Guardian May 17 1997
106 Affirmative action in a changing legal and economic environment Badgett, MVL Industrial Relations Vol. 34(4) Oct. 1995 p 493
107 Ibid. p 504
108 (1990) Fisher, L -Mcgraw- Hill Pub. :USA p 963
Constitutional rights:civil rights and civil liberties -Vol. 2 of the American constitutional law
109 Ibid. p 964

110 Griggs v Duke 40 US 424 (1971)
111 Washington v Davies 426 US 229 (1976)
112 The Philadelphia Plan:a study in dynamics of executive power Schuwerk,RP University of Chicago Law Review Vol. 39 (1972) pp 723-726
113 Fisher p 965
114 Fullilove v Klutznick 485 US 488 (1980)
115 The persistence of prejudice:process-based theory and the retroactivity of the Civil Rights Act of 1991 Tokayi, DP The Yale Law Journal Vol.
103(2) p 570
116 International Assoc. of Fire-fighters v City of Cleveland 478 US 501 (1986)
117 United States v Paradise 480 US 149 (1987)
118 Ibid. at pp 1154-1155
119 Martin v Wilks 109 S.Ct 2180 (1989)
120 Affirmative action :fair shakers and social engineers Abram, MB Harvard Law Review Vol. 99 (1986) p 1312
121 Fisher p 963
123 Pedriana p 634
124 Adarant Constructions v Pena 115 S.Ct 2097 (1995)
125 Class-based affirmative action Kahlenberg,RD California Law Review Vol. 84(4) July 1996 p 1041
126 Brown v Board of Education 347 US 453 (1954) p 494
128 Defunis v Odegaard 416 US 312 (1974)
129 Ibid. at p 316
Managerial Law 43
130 Regents of the University of California v Bakke 438 US 265 (1978) pp 298-299
131 Constitutional Powers- the mentality and consequences of judicial review (1989) Nagel,RF -University of California Press:Berkeley pp 152-153
132 Greenawalt (1983) p 81
133 Rosenfeld (1991) P 172
134 United Steelworkers of America v Weber 443 US 193 (1979) p 197
135 Ibid. p 208
136 Civil rights and civil liberties (1991) OBrien,DM - WW Norton & Co. :New York p 1370
137 Fullilove v Klutznick 448 US 448 (1980)
138 Ibid. pp 514-515
140 Greenawald (1983) p 85
141 Fire-fighters Local Union NO 1784 v Stotts 467 US 561 (1984)
142 Wygant v Jackson Board of Education 476 US 267 (1986)
143 Above at note 135 pp 575-579
144 Ibid. pp 612-616
145 Wygant v Jackson Board of Education 476 US 267 (1986) p 274
146 Rosenfeld (1991) p 181
147 Ibid. p 307
149 Ibid. p320
150 The role of affirmative action officers in North American Universities Townsend-Smith, R Anglo-American Law Review Vol. 17(4) 1988 p 344
151 United States v Paradise 480 US 149 (1987)
152 Ibid. p 185
153 Ibid. p 189
154 Ibid. pp 166-171
155 Ibid. p 182
156 Fullinwider (1980) pp 163-164
157 Ibid. p 164
158 Johnson v Transportation Agency, Santa Clara County Ca 480 US 616 (1987) pp 632-635
159 City of Richmond v JA Croson Co. 109 S Ct 706 (1989)
160 Ibid. p 729
161 Ibid. pp 720-721, 727
162 Ibid. Justice OConnor pp 727-729
163 Rosenfeld (1991) p 214
164 The ascendancy of the conservatives at the US Supreme Court Sullivan, GM et al Anglo-American Law Review Vol. 17(4) 1988 p 295
165 Metro Broadcasting v FCC 497 US 547 (1990)
166 Ibid. p 563
167 Disqualification on the basis of race-a critical development in US race relations Sullivan,GM Anglo-American Law Review Vol. 21(1) 1992 p 28
168 Adarant Constructions v Pena 115 S.Ct 2097(1995) at p 2113
169 The making of a turning point-Metro and Adarant Mishkin, PJ California Law Review Vol. 84(4) July 1996 pp 876-878
170 The end of affirmative action-where do we go from here ? (1996) McWhirter, DA -Carol Pub. Group :New York P 160
171 Missouri v Jenkins 115 S.Ct 2038 (1995) at p 2064
172 Hopwood v Texas 78 F 3d 932 (1996) , Difference of opinion about Hopwood Houston Chronicle March 25 1997
173 Hopwood (above) pp 942, 945
174 Ibid. p 945
175 On a roll(back Carter, T ABA Journal Feb. 1998 p 55

176 White backlash Sunday Times (South Africa) March 31 1996 p 12
177 Affirmative action- an euphemism for reverse discrimination? Edwards, AB Codicillus 1997(2) pp 29-30
178 Discrimination impact, affirmative action and innocent victims:judicial conservatism or conservative justice? Chang, D Columbia Law Review Vol.
91(3) 1991 April p 844
180 McWhirter p 163
181 Affirmative action for whom? Brest,P, Oshigo,M Stanford Law Review Vol. 47(Part 2) May 1995 p 857
182 Remarks at the National Archives and Record Administration Clinton,WJ July 19 1995 in 31 Weekly Computer PRESS DOC 1255 p 4
183 The content of our categories:a cognitive bias approach to discrimination and equal employment opportunity Krieger, LH Stanford Law Review Vol.
47(Part 2) July 1995 p 1243
185 Ibid. p 1247
186 The future of affirmative action:reclaiming the innovative ideal Sturn,S , Guinier,L California Law Review Vol. 84(4) July 1996 p 955
187 Foundations of American constitutionalism (1989) Richards, DAJ -Oxford University Press:New York p 272
188 Ibid. p 274
189 The Supreme Court and Constitutional theory (1994) Kahn, R -University Press of Kansas :USA p 264
190 The ironies of affirmative action-Politics,culture and justice in America (1996) Skrentny, JD -The University of Chicago Press :USA pp 240-241
192 The constitutional logic of affirmative action (1992) Fiscus,RJ -Duke University Press:USA p 10
193 Equal opportunity theory (1996) Mithaug, DE -Sage Pub. :USA p 214
194 Discrimination against American blacks Yinger, JM in Veenhoven, WA (edit) Human Rights case studies and fundamental freedoms- a world survey
Vol. 1 (1975) -Martinus Nijhoff Publ.:The Hague p 46
195 The remote cause of affirmative action or school segregation in Kansas City,Missouri Epstein, RA California Law Review Vol. 84(4) 1996 July p
1119
196 Public deliberation, affirmative action and the Supreme Court Sunstein,CR California Law Review Vol. 84(4) 1996 July p 1198
197 Ending affirmative action- the case for colour-blind justice (1996) Eastland,T -Basic Books:USA p 197
198 Ibid. p 200
199 Kahlenberg pp 1074- 1088
202 Ibid. p 1088
203 Brest p 889
204 J.Saaen, General Manager of Telcom in South Africa struggle to enforce affirmative action plan Los Angeles Times Dec. 26 1996
205 Act 20 of 1909
206 Act 15 of 1911
207 Act 28 0f 1956
208 Act 48 0f 1953
209 Race and labour law Patel, CN in Rycroft,A et al (edit) Race and the law in South Africa (1987) -Juta : Cape Town p 166
210 The development of administrative and political control of rural blacks Devenish, GE in Rycroft (1987) p 28
211 The Report of the Tomlinson Commission 1955 UG61/1955 par.2
212 South African keywords- the uses and abuses of political concepts (1988) Boonzaaier,E (edit) - David Philip: Johannesburg pp 93-94
213 South Africas labour markets:skill formulation and occupational mobility under Apartheid 1979-1993 Kraak, A Werk Employment and
Society Vol. 9(4) 1995 pp 664-666
214 Wiehahn Commission Report Johannesburg 1982 part 1-6
216 Labour under the Apartheid regime-practical problems and legal framework of labour relations in South Africa (1989) Kittner,M et al -Kluwer
:Netherlands pp 38-39
217 Apartheid in theory and practice-an economic analysis (1992) Lundall, M - Westview Press :USA p 191
218 The South African Law Commission Report 1984 p 440
219 To avert the bloodbath Time Magazine Jan. 14 1985
220 South Africa begins trek to democracy Times Feb. 3 1990
221 Mandela,N :Opening statement to Conference of Affirmative Action in the New South Africa, Port Elizabeth, Oct. 1991 pp 16-17
222 Ibid. p 19
Managerial Law 45
223 Affirmative action must be balanced, says SACP Beeld Sept. 27 1991
224 Birth of a constitution(1994) de Villiers, A (edit) -Juta :Cape Town p 6
225 Ibid. p 95
226 Act 200 of 1993 as amended by Act 209 of 1996
227 Affirmative action -the objectives Brassey, M Employment Law Vol. 2(July 1995) pp 133-134
228 Ibid. p 135
229 Introducing the right to equality in the interim constitution Albertyn,C et al South African Journal on Human Rights Vol. 10(1994) p 162
230 A bridge to where:introducing the interim Bill of Rights Mureinik, E South African Journal on Human Rights Vol. 10(1994) p 47
231 How useful is the concept of racial discrimination? Meyerson, D South African Law Journal Vol. 110(1993) p 579
232 Affirmative action under the new Constitution Smith, N South African Journal on Human Rights Vol. 11(1995) pp 95-97
233 Section 9(4) :No person shall suffer unfair discrimination.
234 (1997) 18 ILJ 241 (T) p 247 D-H
235 George v Liberty Life Assoc. of Africa (1996) 17 ILJ 571 (IC) p 573 A-G
237 Equality rights in employment:the new law begins to bite van Niekerk, A Contemporary Labour Law Vol. 7(3) Oct. 1997 p 24
238 Equality, discrimination and affirmative action:an analysis of section 9 of the Constitution van Reenan,TP SAPR/PL Vol.12(1997) p 164
239 Act 66 of 1995, item 2(1)(a)
240 Addendum 7 item 2(2)(b)
241 Western Cape Education Department v George 1996 ILJ 347 (AHH) p 349 D
242 Public Servants v Minister of Justice (above) p 247 I
243 South African Central Government Green Paper on Affirmative Action Notice 851 of 1997 Department of Public Service and Administration Par 1
244 Ibid. par 3
245 Green Paper on Employment and Occupational Equity Government Notice 17301/7/96 Department of Labour
246 Introduction to labour relations in South Africa (1997) 5th edition Finnemore,M (edit) -Butterworths :Durban pp 206-208
247 Employment Equity Bill critics deny history:judge SAPA March 26 1998 at www.gcis.gov.za / cgi-bin/vdkw-gi/xafbea 973-442/search 39
248 4 Some implications of the EEB Sono,T President of the South African Institute of Race Relations Ibid. at search 67
249 Ibid.
250 Employment Equity Bill Response of the Institute of Directors Ibid. at search 42
251 Affirmative action and the new Constitution (1995) Sachs,A -University of Western Cape: Bellville p 10
252 Ibid. pp 12-15
253 An affirmative action statute for employment and contracting: some proposals Blumrosen, AW et al Industrial Law Journal Vol. 15(Part 2) 1994
pp 223-225
254 Brassey (July 1995) p 132
255 Affirmative action during the transition:some practical suggestions Human, L Industrial and Social Relations Vol. 13 (3/4) p 125
257 The South African Civil Service in transition Bayet, MS Industrial Relations Journal of South Africa Vol. 15(2/3) 1995 pp 91-93
258 The civil service in transition and affirmative action Maphas, VT in Hugo,P (edit.) Redistribution and affirmative action: working on South
Africas political economy (1992) -Southern Books: Pretoria pp 79-80

259 Ibid. p 81
260 Conference on affirmative action: the challenges facing the South African Public Services Ministry of Public Service and Administration March
29 1996 at www.gcis.gov.za/cgi-bin/vdkw-cgi/xabea 973-436/search 52/2
261 Ibid.
262 Nel attacks ANC suicide pact of employing comrades SAPA July 13 1998 at Ibid. search 1
263 Affirmative action in South Afria.The transition to a non-racial public service Pichard, LA in Bayat,MS (edit) Public administration,
concepts,theory and practice (1994) - Southern Books: Halfway House pp 185-187

264 Ibid. pp 187-188
265 Public Servants Assoc. v Minister of Correctional Services (unreported case no. J 174/ 97 25 July 1997)
266 Public Servants Assoc. v Minister of Justice (above note 221) at p 242 D-E

267 Act 103 of 1994 section 11(1)(b)
268 Balora v University of Bophuthatswana 1993 BCLR 1018 at p 1056 B
269 Motala v University of Natal 1995 BCLR 374 at p 391 D
270 Die aanstelling van polities-agtergesteldes by universiteite: n grondwetlike en arbeidsregtelike perspektief Olivier, M Journal of South African
Law Vol. 2(1997) pp 347-348
271 Affirmative action for women in the public sector Mandonsela,T et al South African Labour Bulletin Vol. 18(2) March 1994 p 46
272 Ibid p 47
273 Critical choices for the South African society-black access to the SA bureacracy:an equal opportunity and affirmative action perspective (1989)
Hugo, P -Institute for the Study of Public Policy: Rondebosch pp 6-8
274 Workers feel left behind by rigid, tight managers Business Times Feb. 16 1997
275 Equal opportunity and affirmative action in the DOD Department of Defence Bulletin Vol. 10(1998) Feb. p 12
277 Failure to implement affirmative action could lead to dismissal SAPA April 28 1998 at www.gcis.gov.za/cgi-bin/vdkw-cgi/xafbea 973422/search
29
278 As election looms, old issues resurface in SA Government Information Service June 15 1998 at bid search 11
279 Affirmative action and good governance- a fresh look at the constitutional mechanics for redistribution in South Africa (1991) Sachs, A
-University of Western Cape :Bellville pp 42-43
281 Affirmative action does not redress inequalities The Cape Times May 12 1996
282 Affirmative action as an equal opportunity in the new South Africa Louw, E in Adams,C Affirmative action in a democratic South Africa (1993) -
Juta: Cape Town pp 154-155
283 Affirmative action needs new direction Government Information Service April 15 1998 at www.
gcis.gov.za/cgi-bin/vdkw-gi/xafbea973-442/search 35
284 Ibid.
285 As stated in Affirmative action must be immediate Booysen, PD Independent March 7 1996
286 Attitudes of South African managers to the advancement of blacks in the business Human, P South African Journal of Labour Relations Vol. 2(3)
1987 pp 17-18
287 Making affirmative action work- a South African Guide (1995) Institute for Democracy in South Africa -Creda Press: Cape Town p 5
288 Redefining merit Burton,C Canberra:Affirmative Action Agency Monograph No 2(1988) p 4
289 Ibid. pp 5-7
290 Affirmative action in employment:the rationale Joubert, DJ De Jure Jaargang 27 Vol.1(1994) p 125
291 Affirmative action in South Africa-a genuine option Maphai, S 1989 Social Dynamics p 10
292 Rethinking the racial imbalances in the law Lever, P 1992 Consultus p 58
293 Rethinking affirmative action in a non-racial democracy Klug, H South African Journal on Human Rights Vol.7(1991) p 319
294 Joubert (1994) p 113
295 (1997) 18 ILJ 241 (A) at p 242 B-D
296 Ibid. p 309 E-G
298 Affirmative action -three cases, two views van Niekerk,A Contemporary Labour Law Vol. 7(1) Aug. 1997 p 10
299 Department of Correctional Services (unreported case no. J 174/97 25 July 1997) at pp 37-38
300 S v Makwanyane 1995 SA 391 (KH) at p 398 H-G
301 (1996) 17 ILJ 571 (IC)
302 Ibid. p 573 D-F
303 Ibid. p 573 H-I
304 Self-interested discrimination Brassey, M Employment Law Vol. 2(5) May 1995 p 113
305 Finnemore (1997) p 267
306 George v Liberty Life (above) at p 573 H
307 van Niekerk (Aug. 1997) p 9
309 Ibid.
310 George v Liberty Life (above) at p 571 B
Managerial Law 47
311 Affirmative action and black advancement in business (1991) Sachs, A - South African Constitutional Study Centre: Cape Town p 37
312 Ibid. p 42
313 Equality and affirmative action in the Constitution: the South African case Ncholo,P in Hepple (1992) pp 430-431
314 Affirmative action and the new constitution ANC Report at www.anc.org.za/ancdocs/ policy/ affirm . htm/
315 An alternative approach to affirmative action Gering, M at www.kpmg.co.za/affirmative.htm
316 Promoting affirmative action Foundex, J Industrial Law Journal Vol. 15(6) 1994 p 1190
317 Public service transformation and affirmative action perspectives in South Africa Reddy, P et al Industrial Relations Journal of South Africa
Vol.14(1) 1994 p 20
318 Ibid. p 35
319 Affirmative women in the work place Dave,F South African Labour Bulletin Vol. 17(2) March/April 1993 p 70
320 Affirmative action and its negative repercussions Bladford-Reynolds,WM in Lambert,RD et al The annuals of the American Academy of Political
and Social Science-affirmative action revisited (1992) - Sage Pub. :Newbury Park p 47
321 Affirmative action in perspective (1989) Blanchard, FA et al -Springer-Verlang: New York p 202
322 Bayat p 95
323 Hugo (1992) p 206
324 Ibid p 208
325 Reversing roles in a South African dilemma Daley, S New York Times Oct. 26 1997 p 47
326 Home Affairs not yet representative Government Report March 9 1998 at www.gcis.gov.za/cgi-bin/vdkw/cgi/xafbea973-442/search 43
327 Ibid.
328 NP rejects new AA policy Government Information Service, April 28 1998 at Ibid. search 30
329 South Africa is paying dearly for affirmative action Government Report of the Auditor-General May 26 1998 at Ibid. search 25
331 SABC denies racism determined the choice of new CE Government Information Service June 7 1998 at Ibid. search 14
332 Little going for young Afrikaners to get excited about SAPA March 21 1998 at Ibid. search 40
333 Emigration exacerbates skill shortages SAPA March 16 1998 at Ibid. search 41
334 Mandela laments white exodus from South Africa Nander Times Global Archive March 1997
336 Government Notice 173031/7/96 paragraph 3.1-6
337 Ibid. paragraph 3.8.1

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Affirmative Action:

A Comparison between South Africa and the

II. General Principles 6

A. A Definition of Affirmative action 6

III. Affirmative Action in the United States 9

IV. Affirmative Action in South Africa 17

II. General Principles

A. A Definition of Affirmative Action

B. The Philosophy of Equality and Equal Opportunity

6 Volume 42 Number 6 2000

C. The Justification for Affirmative Action

8 Volume 42 Number 6 2000

III. Affirmative Action in the United States

“Mend it, don’t end it “73

10 Volume 42 Number 6 2000

C. The Implementation of Affirmative Action

12 Volume 42 Number 6 2000

D. Practice versus Reality

14 Volume 42 Number 6 2000

E. The Present - An Observation

16 Volume 42 Number 6 2000

IV. Affirmative Action in South Africa

18 Volume 42 Number 6 2000

C. The Implementation of Affirmative Action

The implementation of affirmative action by semi-state institutions such as universities is governed

20 Volume 42 Number 6 2000

D. Practice versus Reality

22 Volume 42 Number 6 2000

E. The Present - An Observation

24 Volume 42 Number 6 2000

26 Volume 42 Number 6 2000

28 Volume 42 Number 6 2000

- Title 7 of The Civil Rights Act of 1964

Anthias, F; Yaval-Davies, N. Racialised boundaries (1992) - Routledges: Great Britain

Bladford-Reynolds, W M “Affirmative action and its negative repercussions” in Lambert, RD

Blanchard, F A et al Affirmative action in perspective (1989) Springer-Verlag: New York

Fiskin, gentlemen S The dialogue of justice-Towards a self-reflective society (1992) - Yale

Hepple, B et al Discrimination and the limits of law (1992) - Mansel : London

30 Volume 42 Number 6 2000

Lacey, N “From individual to group “ in Hepple B et al Discrimination:the limits of

Mohanty, M “Towards a political theory of inequality “ in Betaille, A (edit) Equality, and

Ornstein,AC “Affirmative action and American universities “ in Veenhoven, W A (edit)

Pichard, L A “Affirmative action in South Africa..The transition to a non-racial public service”

Rae, D et al Equalities (1981) - Harvard University Press: Cambridge

Rawls, J A theory of justice (1971) -Clarendon Press : Oxford

Richards, D A J Foundations of American constitutionalism (1989) - Oxford University Press:

32 Volume 42 Number 6 2000

Schaar, J H “Equality of opportunity and beyond” in Poyman, L P et al Equality -selected

Sher, G “Justifying reverse discrimination in employment” in Cahn, S M (edit) The affirmative

Turner, B S Equality (1986) - Ellis Horwood Ltd.: Chichester

Yinger, J M “Discrimination against American blacks” in Veenhoven,WA (edit) Human rights

Badgett, M V L “Affirmative action in a changing legal and economic environment”Industrial

Carter, T “On a roll (back)” ABA Journal February 1998 p 55

34 Volume 42 Number 6 2000

Fullinwider, R “On preferential hiring” Feminism and Philosophy (1978) p 222

Hook, S “Democracy and genetic variation” Humanist Vol. 31 (March 1971) p 16

Joubert, D J “Affirmative action in employment : the rationale” De Jure Jaargang 27 Vol.1(1997)

Lever, P “Redressing the racial imbalances in the law” 1992 Consultus p 58

Olivier, M “Die aanstelling van polities-agtergesteldes by universiteite :’n grondwetlike en

Africas political economy (1992) -Southern Books: Pretoria pp 79-80