Comments by Professor Marinus Wiechers to Solidarity's international conference on affirmative action, Centurion, July 15 2009

Affirmative Action - A constitutional analysis

The entire apartheid apartheid system was based on an extensive system of racial classification. Based on this racial designation, the white population were advantaged and other racial groups were reduced to inferior citizens. Racial classification has created inequalities over the whole spectrum of the South African society and was the principal inciter of racist sentiments.

It is therefore understandable that the Constitution of 1996 declares non-racialism as a founding principle of our government system Section 9 of the Constitution also explicitly prescribes that discrimination may not take place on the basis of race, colour or ethnic origin. In subsection (2) it is stipulated that legislation or other measures may be instituted to protect and promote people or categories of people who had been disadvantaged by unfair discrimination.

This subsection, together with subsection (5) that determines that discrimination may take place if such discrimination is fair, have become the justification of affirmative action. "Fair" discrimination is not defined; instead, it is somewhat meaninglessly stated that discrimination would be unfair when it is not fair. (This is an example of a blatant petitio principi.) Section 9 was a brave way of describing to the right to equality, but it cannot possibly be applied as a cure for all inequalities. Affirmative action in its variety of different forms has imported a new form of racial classification. The so-called generic determination is that "blacks" means black people (Africans), Coloureds and Indians. 

This new type of arbitrary racial classification led to a variety of contradictory, unfair and unconstitutional practices. These practices have resulted in a situation where, similar to the much "Whites Only" notices that caused so much discord and hatred, explicit and implied "Blacks Only" notices are now being put up, on a large scale, on both public and private terrains. Affirmative action, as currently applied, and the associated "transformation", which is an unconstitutional term, has had a paralysing and negative impact on nearly all areas of public administration.

At the same time, it has become the foremost breeding ground for racism and racist sentiments. Instead of protecting those disadvantaged and promoting their interests, affirmative action has become an instrument for punishing white people (regardless whether they supported apartheid or not, or were not even born yet during the apartheid years) for the advantages they had in the past. South Africa needs a system of affirmative action to address the current realities of poverty and need from ground level and not from above. And least of all does the country need a system born from racism and hatred rooted in the past.

Source: http://www.solidarity.co.za/

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