TRANSFORMATION AND THE CONSTITUTIONAL COURT
SETTING THE SCENE
South Africa’s ruling party, the African National Congress (ANC), has long been committed to the implementation of a "national democratic revolution" (NDR). It also speaks from time to time about the need to implement "radical economic transformation". In September 2012 the ANC government (as well as all opposition parties in Parliament) endorsed a National Development Plan (NDP) among whose provisions was that the law should be "interpreted and enforced in a progressive, transformative fashion" in order for it to be "an agent of change".
The Constitution itself contains no such provisions, although its equality clause licenses the adoption of what may loosely be described as "affirmative action" policies. So also, the property clause in the Constitution allows for expropriation of private property to promote "land reform". Early in 2018 Parliament set up a committee to investigate what, if any, amendments to the Constitution were necessary to empower the state to expropriate land without compensation. Both affirmative action and expropriation without compensation would fall within the programme of radical transformation.
The aim of this paper is to assess to what extent some of the judgments of the Constitutional Court are in line with this programme. One such judgment is that in the AgriSA case in 2013, in which the court held that the assumption of "custodianship" over private property by the state did not amount to expropriation and therefore did not require compensation. The second, in the Barnard case in 2014, held that it was both lawful and fair to leave a senior vacancy in the police force empty rather than appoint a white woman to it. The third judgment, in 2016, held that the application of racial targeting in the Department of Correctional Services was lawful provided it used the appropriate demographic profile.
The fourth judgment, in the Fedsas case in 2016, held that the Gauteng provincial education executive was entitled to override decisions of school governing bodies (SGBs) about school capacity and enrolments. The last two judgments affected the language and cultural rights of minorities, in particular Afrikaners. In the Tshwane case in 2016, the court rejected an application to preserve Afrikaans street names in that metropolis, whose main city is Pretoria. In the UFS case in 2017, it upheld a decision by the University of the Free State (UFS) to remove Afrikaans as a key medium of instruction.
The word "transformation" is widely used in South Africa in political speeches, policy documents, newspaper articles, advertisements, and elsewhere. Transformation has also been described by the Constitutional Court as a "constitutional imperative". However, as will be discussed in more detail below, the word "transformation" does not appear in the Constitution. This second part of the paper will focus on some of the provisions in the Constitution that are at issue when judges discuss transformation. Other policy documents will be discussed thereafter.
Key sections of the Constitution relevant to this paper are summarised here. More detail will be given when the various judgments of the Constitutional Court are discussed in the third part of the paper.
Given the nature of the constitution it replaced, it is not surprising that the Constitution of 1996 says in its preamble that the document is designed among other things to "heal the divisions of the past" and establish a society based on "social justice". While Section 9 of the Constitution guarantees equality before the law and outlaws "unfair discrimination", it also authorises measures to promote "the achievement of equality". These are defined as "legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination". Although the term "affirmative action" does not appear in the Constitution, the measures contemplated in Section 9 fit this description.
A rather different concept, "broad representation", is dealt with much later in the document, when public administration is discussed. According to Section 195, among the principles governing public administration is that it must be "broadly representative of the South African people". Employment and personnel management practices in public administration should be based on ability, objectivity, and fairness, but also on "the need to redress the imbalances of the past to achieve broad representation". Section 174 stipulates that judges should primarily be "fit and proper" but that the judiciary should also "reflect broadly the racial and gender composition of South Africa".
Property (which is not confined to land) may be expropriated in the public interest, compensation being subject to certain requirements, among them market value and acquisition history, set out in Section 25. The "public interest" is defined as "including the nation’s commitment to land reform, and to reforms to bring about equitable access to all the country’s natural resources".
The right to public education in the language of one’s choice is guaranteed in Section 29, but it is made subject to "equity, practicality, and the need to redress the results of past discriminatory laws and practices".
The rights to equality, property, and education are dealt with in Chapter 2 of the Constitution, which is described as the "Bill of Rights". Various other rights are also dealt with here, among them socio-economic rights such as access to housing, health care services, and social security. Chapter 2 also includes a clause (Section 36) specifying when rights may be limited.
It concludes with an interpretation clause (Section 39). This says that in interpreting the Bill of Rights, the courts "must promote the values that underlie an open and democratic society based on human dignity, equality and freedom". Among other requirements is that interpretations must "promote the spirit, purport, and objects of the Bill of Rights".
Transformation and the state
In 1998 the ANC’s department of political education and training published a document in which it said that transformation of the state entailed extending the power of the "national liberation movement" over "all levers of power: the army, the police, the bureaucracy, intelligence structures, the judiciary, parastatals, and agencies such as regulatory bodies, the public broadcaster, the central bank and so on". Control by "democratic forces" meant that these institutions should operate on the basis of the precepts of the Constitution, be guided by new doctrines, reflect in their composition the demographics of the country, and owe allegiance to the new order.
The Constitutional Court and transformation
Speaking in 2004 at the official opening of a new building for the Constitutional Court on Constitution Hill on the site of an old prison in Johannesburg, President Thabo Mbeki said,
"Our Constitutional Court is a product of bitter struggles waged by millions of people who were defined as sub-human. As a product of their sacrifices, it cannot define itself as an institution outside the transformation process that is taking place in our country. Rather, it is, like many of our democratic institutions, an important organ for transformation. Indeed, by transforming the old edifice of repression that once stood here, a clear message is issued that this Court cannot and will not march out of step with our evolution, insensitive to the fundamental changes that will characterise our country for a considerable period of time."
The National Development Plan (NDP)
Adopted by the Cabinet and by Parliament in 2012, the National Development Plan (NDP) states that judges should have "progressive credentials". It also states, "For the law to be an agent of change, it must be interpreted and enforced in a progressive, transformative fashion. This requires a judiciary that is progressive in its judicial philosophy and legal inclinations. The selection and appointment of judges affects socio-economic transformation as well as the rule of law and the independence of the courts."
Transformation and the Department of Justice and Constitutional Development
In February 2012, the Department of Justice and Constitutional Development (DoJ) issued a Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State. The document followed statements by various ministers and senior officials of the African National Congress (ANC) criticising the courts as "tilted against change" and wanting to establish a "judicial dictatorship". President Jacob Zuma said that his government wanted to "review the powers" of the Constitutional Court. He also said that there was sometimes more logic in dissenting judgments than in the main one. Fears were expressed that the promised review would somehow undermine the Constitution and/or the courts. Towards the end of the year, the Department withdrew its calls for tenders to conduct the review.
Terms of reference for a much more limited review were issued the following year, and a report by the Human Sciences Research Council (HSRC) and the University of Fort Hare was published in November 2015 under the title Assessment of the Impact of Decisions of the Constitutional Court and Supreme Court of Appeal on the Transformation of Society. The main focus of this review and of the report was on the adjudication and implementation of socio-economic rights.
The earlier document of the DoJ contained a much more detailed discussion of various issues, among them the separation of powers, the independence of the courts, their power of judicial review, their structure, and the role of institutions such as the Judicial Service Commission, whose main function is to recommend judges for appointment after interviewing them. Most of the matters raised in the earlier document are beyond the scope of this paper, but some of the ideas put forward are relevant as they provide insights into the department’s thinking about transformation.
The document contained a preface by Jeff Radebe, minister of justice and constitutional development. He stated,
The Constitution [...] provides the basis for the transformation of the state and society. It sets out, as its vision, the establishment of a non-racial, non-sexist, equal and prosperous democratic society, founded on human rights. The Bill of Rights [...] entrenches justiciable socio-economic rights which underscore the developmental character of the South African state with an overwhelming commitment to social justice. It is these uniquely transformative features of our Constitution that seek to redress the legacy of inequality and deprivation implanted during the 300 years of colonialism and apartheid. In redressing this legacy, the Constitution, in its Preamble, affirms the people’s commitment to "heal the divisions of the past and establish a society based on democratic values, social justice, and fundamental human rights".
Transformation, the document continued, "is mandated, driven, and guided by the Constitution". The developmental state "must work to ensure that our economy grows and develops, enabling [it] to create wealth, which is required to improve the living standards of all people" and provide "a better life for all" and make possible "the progressive realisation" of socio-economic rights.
Transformation was also part of the "grand project of nation- building". Part of the agenda was the "deracialisation of society" and the building of a non-racial society "based on a common South African identity, which embraces diverse cultures and is glued together by social cohesion and peaceful co-existence".
In recent years many judges had shown a profound understanding of constitutional imperatives. Many judgments, especially of the Constitutional Court, had reflected a "progressive interpretation" of the Constitution and of social rights in particular. There had nevertheless also been decisions that did not "fully advance the transformative purpose of the Constitution". Hence the decision by the Cabinet in November 2011 to commission the review so as to develop clear and concise recommendations to deal with decisions with the potential to "undermine the transformation goals intended to nourish our constitutional democracy".
As far as is known, no such regulations were ever issued. Several decisions of the Constitutional Court have nevertheless adopted the view expressed by the DoJ, that transformation is "mandated" by the Constitution despite the fact that the Constitution itself does not say this.
The "national democratic revolution"
Although documents setting out the objectives and strategy of the "national democratic revolution" have no constitutional status, they provide insights into the thinking behind various policies adopted by the ANC and supported by the South African Communist Party (SACP) and the Congress of South African Trade Unions (COSATU). The term "national democratic revolution" first appeared in the 1950s in documents published by the Communist Party of the Soviet Union. The influence of Soviet theorists was clearly evident in The Road to South African Freedom, a programme adopted by the SACP in 1962.
According to this document South Africa was a "colony of a special type" in which the white minority had gained its wealth mainly through ruthless dispossession and exploitation of the black majority over centuries of colonial rule. The "colonial state of white supremacy" would have to be overthrown. Among other things, all public institutions, including the civil service, the judiciary, the police, and the army would have to be made "fully representative of the population of South Africa".
In 1969 the ANC adopted the theory of "colonialism of a special type" at its national policy conference in Morogoro in Tanzania. A Strategy and Tactics document adopted at this conference committed the ANC to a national democratic revolution that would counter "the historical injustices perpetrated against the indigenous majority". This would give rise to a new society based on the core provisions of the Freedom Charter, which had been adopted in Kliptown in Soweto in June 1955. Among other things, the charter called for all the land in South Africa to be "re-divided amongst those who work it", and for the "mineral wealth beneath the soil" to be "transferred to the ownership of the people as a whole", along with "the banks and monopoly industry".
Since coming to power in 1994 the ANC has regularly recommitted itself to the national democratic revolution.
At its national conference in Stellenbosch in 2002, it said that national emancipation required "the elimination of apartheid property relations", the deracialisation of ownership and control of wealth, including land and equity, and the redistribution of wealth and income to benefit society as a whole, especially the poor. However, "because property relations are at the core of all social systems", application of this objective would require "dexterity in tact and firmness in principle".
A document adopted at the Polokwane conference in 2007 said that the need for affirmative action "will decline as all centres of power and influence become broadly representative of the country’s demographics". A conference in Midrand in June 2012 rejected "the willing-buyer/willing-seller" principle and stressed the need for "a radical and rapid break from the past on land reform", with "just and equitable" compensation to be paid. A document adopted at Mangaung in December 2012 urged further interventions to speed up change as part of the "second phase" of the country’s transition. This "second phase" required more radical policies and "decisive action to effect thoroughgoing economic transformation". The document also reaffirmed "the centrality of the Freedom Charter as our lodestar" and spoke of the need to confront "the dominance of the capitalist system".
Most of these policy documents also reiterate what had been adopted in earlier versions. They talk in addition of the needs for heightened state efficiency, increased economic growth, macro- economic discipline, enhanced education, countering HIV/AIDS, and improved living standards. However, the main thrust, as Anthea Jeffery has pointed out in a study of the documents, is on redistribution.
The "second phase" of South Africa’s transition may involve amendments to the Constitution. Speaking at the Midrand conference, President Jacob Zuma blamed "slow progress towards economic freedom" partly upon the compromises the ANC had been compelled to make during the constitutional negotiations which brought it to power in 1994. The negotiated settlement with "white capital" at the end of apartheid had been "absolutely necessary" to restore business confidence, but it was now hampering the ability of the government to address the triple challenge of poverty, inequality and unemployment. To address this, the Constitution might have to be changed. As we shall see below, possible amendments to the Constitution to provide for the expropriation of land without compensation were being discussed by a parliamentary committee at the time this paper was being written.
In the meantime, the ANC had declared that "radical socio- economic transformation" was a priority for 2017/2018.
Speaking on Freedom Day in April 2017, Mr Zuma said that "radical transformation means "fundamental change in the structure, systems, institutions, and patterns of ownership, management, and control of the economy in favour of all South Africans, especially the poor, the majority of whom are African and female". In July Mr Radebe, now head of ANC policy and a minister in the Presidency, said at the organisation’s policy conference that the ANC over the next five years should advance the national democratic revolution, the national transformation agenda, and radical economic transformation.
Addressing the 14th national congress of the SACP in the same month, Cyril Ramaphosa, then still deputy president of South Africa and of the ANC, said that both parties were "inextricably bound to the success of the national democratic revolution".
Shortly after he had replaced Mr Zuma as president of the ANC in December 2017, Mr Ramaphosa promised that he would work with his alliance partners to lead the national democratic revolution, "as our people expect". In March 2018, having replaced Mr Zuma as president of the country, Mr Ramaphosa spoke of the need for "fundamental transformation of the ownership and management of the mining industry".
This third part of the paper sets out the key findings of the judgments in each of the six cases in question. Key aspects of dissenting judgments or separate concurring judgments are also set out. There follows commentary on the judgments by the present writer and by others. Subsequent developments are also set out where relevant.
The AgriSA case
In terms of the Mineral and Petroleum Resources Development Act (MPRDA) of 2002, all privately-owned common-law mineral rights disappeared and all mineral resources were vested in the "custodianship" of the state. The Act also stipulated that unused old-order mining rights should be converted within a year into new rights, failing which they would "cease to exist". The issue before the court was whether assumption by the state of the Sebenza mining company’s old-order rights amounted to expropriation. If it did, compensation was payable in terms of Section 25 (the property clause) of the Constitution, which states that "property is not limited to land".
Founded in 1904, AgriSA (previously the South African Agricultural Union) is a federal organisation promoting the interests of its members, some of whom had previously owned, but not used, old-order rights to the minerals beneath their land. It brought this action against the minister of minerals and energy as a test case. Litigation began in the High Court and went to the Supreme Court of Appeal (SCA) before reaching the Constitutional Court, which handed down its decision against AgriSA in April 2013.
The case revolved around Sebenza, a company which had bought old-order coal mining rights in 2001 but which then went into liquidation and could not afford the costs of conversion.
Attempts by the liquidators to sell the rights to another company failed when they were advised that they had ceased to exist under the MPRDA. AgriSA then procured Sebenza’s claim for compensation and brought the case. It argued that the commencement of the MPRDA in 2004 had had the immediate effect of expropriating Sebenza’s mineral rights and that compensation was therefore payable in terms of Section 25.
The High Court agreed, stating that Sebenza’s rights had been "legislated out of existence". This deprivation amounted to expropriation, with the result that compensation was payable as the state had acquired the substance of Sebenza’s rights. It made no difference whether the state’s competencies were termed "custodianship" and not "ownership". The minister took the case to the SCA, which set aside the High Court’s decision on the grounds that the right to mine was a gift from the state and did not constitute property, with the result that neither deprivation nor expropriation had taken place. AgriSA then appealed to the Constitutional Court.
This court made it clear that the case was of major political and economic importance. Its main judgment was written by the chief justice, Mogoeng Mogoeng. He said that the case would be of "importance not only to parties to the dispute, the mining industry at large, landowners, and previous holders of mineral rights, but also to the vast majority of people who were previously excluded and who, but for this legislative intervention, would have no properly structured access to the lucrative mineral and petroleum resources of this country". The legislative intervention in question was the MPRDA, in terms of which the state has become the "custodian" of the country’s mineral and petroleum resources.
The court held that the reason why Sebenza had lost its rights was not that they had been extinguished by the MPRDA. Its unused, pre-existing, old-order rights had remained in force for one year after the commencement of the MPDRA. During that period it had had the exclusive right to apply for a new mining or prospecting right so as to be able to exploit its old-order coal rights. The reason why it had lost these rights was that it had not been in a financial position to apply for them to be converted into actual mining and prospecting rights within the timeframe provided for in the legislation.
The court also said something else. Sebenza had indeed been deprived of its rights, which were now in the custodianship of the state on behalf of the people of South Africa. Whatever "custodianship" might mean, it did not mean that the state had acquired and thus become the owner of the rights in question. Since the state had not acquired these rights for its own use, it was not obliged to pay compensation. "Mere deprivation" fell short of the "expropriation" requiring compensation under Section 25. "There can be no expropriation in circumstances where deprivation does not result in property being acquired by the state."
The court added that AgriSA’s assertion that the state had expropriated mineral rights was "an overly liberal one". It said that Section 25 had to be interpreted "with due regard to the gross inequality in relation to wealth and land distribution in this country". Private property rights should not be "overemphasised". An "overly liberal interpretation of the concept of acquisition could "undermine the constitutional imperative to transform our economy with a view to opening up access to land and natural resources to previously disadvantaged people". In addition, "a fine balance must be struck between the interest of those deprived by the MPDRA and the need to create jobs, grow the economy through the expanded development of the mining industry, and open up opportunities for those sought to be made fellow partakers in the equitable access to mineral resources".
At the same time Justice Mogoeng said that it would be inappropriate to decide "definitively" that expropriation could never take place under the MPDRA. The avenue had to be left open for other cases to be argued to show that it had. This point was underlined in a concurring judgment by Edwin Cameron.
In a separate judgment, Johan Froneman also dismissed AgriSA’s case, although on different grounds. With Johann van der Westhuizen concurring, Justice Froneman said that Sebenza had been entitled to compensation, which the company would have received when its unused old-order mining rights had been converted to new rights. But this compensation had been forfeited when the company’s subsequent insolvency prevented it from applying for a new mining right within the prescribed year-long timeframe. Justice Froneman also suggested that this was the substantive reasoning behind the main judgment, even though that judgment said it had reached its conclusions on the grounds that expropriation had not taken place.
Justice Froneman said that the distinction between deprivation and expropriation was merely a "conceptualisation in legal terms" which actually failed to answer the question of when compensation was payable. He added, "If private ownership of minerals can be abolished without just and equitable compensation – by the construction that when the state allocates the substance of old rights to others it does not do so as the holder of these rights – what prevents the abolition of private ownership of any, or all, property in the same way?"
The main judgment is puzzling. It refers to the need for a "fine balance" between those deprived of their rights and the opening up of opportunities to others. This is in line with Section 25 of the Constitution, which attempts to strike "an equitable balance" between those affected by expropriation and the "public interest", the latter including "the nation’s commitment […] to bring about equitable access to all the country’s natural resources". In determining the amount to be paid, Section 25 cites five factors to be taken into consideration: current use of the property, history of its acquisition, market value, extent of state investment or subsidy, and purpose of the expropriation.
Citing this section, the main judgment refers to the constitutional "imperative" of transformation, to combating "gross inequality", and to opening up access to previously disadvantaged people. But nowhere does the chief justice explain why these "imperatives" preclude the payment of compensation altogether. Far from attempting to arrive at the balance of which he speaks, he simply declares that what took place with Sebenza was not expropriation, but deprivation, which, he says, rules out compensation anyway. Moreover, while this and other judgments refer to the constitutional imperative of "transformation", that word, as already noted, does not appear in the Constitution.
Furthermore, although the main judgment spoke of the need to create jobs and grow the economy through the expanded development of the mining industry, that industry has continued to shed jobs in the five years since the judgment was handed down. Whereas it employed 511 000 people in 2013, the number last year was 467 000. One reason is the imposition down the years of various "transformation" requirements, some of them incorporated in mining charters, the first of which was issued in 2004. The decision earlier this year by the ruling party to investigate constitutional changes to facilitate expropriation without compensation has almost certainly already had a deterrent effect on investment in the mining industry (and elsewhere). The economic thinking behind the main judgment has had the opposite effect to the one intended. Indeed, while asserting the importance of developing the mining industry, that judgment failed to take into account the importance of secure property rights in encouraging such development. With the bathwater of property rights, it threw out the baby of mining development.
As we have seen, the chief justice said his judgment did not lay down a general rule to the effect that acquisition by the state could never amount to expropriation. Nevertheless, following the judgment, the government introduced the Promotion and Protection of Investment Bill of 2013, which contained a clause that would allow for expropriation without compensation where the state takes property as custodian rather than as owner. After numerous objections, this clause was removed from the Bill, which was enacted at the end of 2015. However, a similar provision was inserted in the Expropriation Bill of 2015. In an analysis of this Bill, the Institute of Race Relations (IRR) stated that the intention was to turn the AgriSA ruling – which the Constitutional Court had made clear applied only in that particular instance – into a "general principle of law".
In February 2016 the Office of the Chief Whip of the ANC stated that this Bill, which the National Assembly had just passed, was a "progressive departure from the ineffective willing-buyer, willing-seller approach, which [...] has in the past forced the government to pay extortionate amounts for land, frustrated the redistribution process, and hamstrung its ability to achieve redistribution targets". The state would now be able to expropriate by paying an amount determined by the "valuer- general’, a new functionary who took office in 2015. Although the Bill was passed by the National Assembly, the IRR petitioned President Jacob Zuma to refrain from giving it his assent on the grounds that it was unconstitutional and also that it failed to comply with procedural requirements. Mr Zuma referred the Bill back to Parliament in July 2016. At the time of writing it had not been finalised.
In 2014 the government also introduced a Preservation and Development of Agricultural Land Framework Bill. This provided for the state to take custodianship of all agricultural land and for the "right to farm" to be subject to ministerial regulation. The implication was that farmers would be issued with licences to farm, subject to such conditions as the minister of agriculture, forestry, and fisheries might determine. The "custodianship" clause was removed from a 2016 version of the Bill, which has not yet been enacted.
In February 2018, however, Parliament adopted a motion that Section 25 of the Constitution should be reviewed and, if necessary, amended "to make it possible for the state to expropriate land without compensation". The relevant committee was instructed to conduct public hearings and to report back by 30 August this year. The deadline was later extended to 28 September.
In July 2018 FW de Klerk, former state president, said that expropriation without compensation "would be a serious blow to the 1994 constitutional accord". The property clause, he explained, was one of the most tightly negotiated compromises in the final Constitution. "Non-ANC parties conceded the principle of expropriation in the national interest – which included land reform. In return, the ANC accepted that just and equitable compensation would have to be paid for expropriated property."
The Barnard case
The case revolved around Captain Renate Barnard, a white woman officer in the South African Police Service (SAPS) who was denied promotion to superintendent on grounds which she complained were unfair racial discrimination. In terms of Section 9 of the Constitution (the equality clause), as we saw above, the state may not discriminate "unfairly" on grounds of race, except that it may take measures to advance persons disadvantaged by unfair discrimination. Section 6 of the Employment Equity Act of 1998 contains similar provisions. Unlike the Constitution, it defines such measures as "affirmative action measures".
Of particular importance in the case was that both the Constitution and the Act provide that if an employer is alleged to have discriminated unfairly, the onus is on that employer to prove the contrary.
Ms Barnard had been a member of the police service since 1989. In 2005 the national commissioner of police advertised a position within its national evaluation service. Even though she was shortlisted, interviewed, and recommended as the best candidate, she was not appointed to this level 9 vacancy (for the second time around). The commissioner said that the reasons for not appointing her were that it would not enhance racial "representivity" at that particular salary level, and that since the post was not critical to "service delivery" by the police to the public, it was not necessary to fill it immediately.
The Labour Court upheld her complaint against the commissioner because he had failed to discharge the onus of showing that the racial discrimination against her was not unfair. The Labour Appeal Court found in favour of the police on the grounds that restitutionary measures such as employment equity were not subject to an individual’s right to equality. The SCA reversed this decision, on the grounds that the commissioner had failed to show why failure to appoint her was not unfair and that this amounted to impermissible racial discrimination. The SCA’s decision was then appealed by the police to the Constitutional Court, where Ms Barnard lost her case in a judgment handed down in September 2014.
Throughout the litigation, Ms Barnard was represented by Solidarity, a trade union of which she was a member. She had in the meantime been promoted to lieutenant colonel in the national inspectorate division of the police, so that in practice the case now revolved around her claim for compensation for being denied the promotion she had initially sought.
According to Dikgang Moseneke, who wrote the main judgment, in which six of his colleagues concurred, the core issue was: Did the commissioner’s decision unfairly discriminate against Ms Barnard? At the time he wrote the judgment, Justice Moseneke was acting chief justice. At the "hub" of the dispute, he said, was the Police Service Employment Equity Plan. This plan set numerical goals based on a grid dividing personnel by race and gender on 16 salary levels reflecting "national demographics" and giving both "ideal" and "realistic" targets for each level.
The judgment said that the Constitution guaranteed equality before the law. In addition, it prohibited "unfair discrimination". However, the Constitution also had a "transformative mission" requiring active steps to achieve "substantive equality", especially for those disadvantaged by past unfair discrimination. Justice Moseneke said: "Restitution or affirmative action measures are steps towards the attainment of substantive equality."
Echoing a 2004 decision by the court in the case of Minister of Finance v Van Heerden, the main judgment said such measures were automatically fair if they fulfilled three criteria. These were that they targeted a class of people previously susceptible to unfair discrimination, were designed to advance those people, and promoted the achievement of equality. The Constitution and the Act, said the judgment, were "quite explicit that affirmative action measures are not unfair".
Although it prohibited unfair discrimination, the Act obliged designated employers to take affirmative action measures. Such employers had to ensure that "suitably qualified employees from designated groups are equally represented in each working category of the designated employer". Measures to bring about equitable representation, according to Section 15 of the Act, included "preferential treatment and numerical goals but exclude quotas".
The judgment pointed out that quotas – "curiously" – were not defined and said it would be "unwise" to give the term meaning. Let it rather "suffice to observe that Section 15 sets the tone for the flexibility and inclusiveness required to advance employment equity". Flexibility was indeed the "primary distinction between numerical targets and quotas", the latter being prohibited by law. Also, there "must be no absolute barriers for the future or continued employment of people not designated".
Although she had been unhappy about the commissioner’s failure to appoint her, Ms Barnard’s subsequent promotion to lieutenant colonel showed that there was no absolute barrier to her advancement. She had further accepted the commissioner’s view that failure to appoint her would not damage service delivery. She had also accepted that the police’s equity plan was a valid affirmative action measure. This meant that the issue before the court was not whether that plan was assailable but whether the commissioner’s decision made in terms of that plan was open to challenge.
Justice Moseneke concluded that the commissioner had not pursued the targets in his plan "so rigidly as to amount to quotas". Even though he must have known of the "glowing support" from some of his senior colleagues for Ms Barnard’s appointment, there was nothing unlawful in his decision not to appoint her on the grounds that this "would have worsened the representivity in salary level 9" (where "over-representation" of white women was already "pronounced"). He had made his decision both "rationally" and "reasonably". The police’s appeal against the decision of the SCA was accordingly upheld and its order that Ms Barnard be paid compensation was set aside.
The main judgment also contained two warnings. One was that beneficiaries of affirmative action had to be "equal to the task at hand". They had to be "suitably qualified in order not to sacrifice efficiency and competence at the altar of remedial employment". The second warning was of the need to "remain vigilant that remedial measures under the Constitution are not an end in themselves. […] Their ultimate goal is to urge us on towards a more equal and fair society that hopefully is non-racial, non- sexist and socially inclusive".
Three judges (Edwin Cameron, Johan Froneman, and Stevan Majiedt) handed down a concurring decision. They said that the "mere rationality" test applied in the main judgment was too "deferential" and that a stricter test should be applied. This was "fairness". Ms Barnard had argued in all four courts that she had been unfairly discriminated against "simply because she is a white person". This was the core issue throughout the litigation – fairness having been held in earlier cases to be "one of the core values of our constitutional order".
The commissioner had provided "sparse evidence that he had implemented the plan fairly". The SCA had found his stated reasons "opaque". He might have taken all relevant considerations into account in denying Ms Barnard the promotion she sought, but this was not evident from the "incomplete" reasons he put forward. However, despite having agreed with the SCA’s view that fairness had not been demonstrated, the minority judgment found that the commissioner’s decision "passes the fairness standard". These three judges admitted that their decision was "a close call". They said that what was "determinative" for them was the "over- representation of white women at the salary level to which [she] was applying".
The minority judgment also said that there was "no evidence that we must sacrifice the quality of our public bodies to achieve the important goals of representivity and to redress past disadvantage. Persons disadvantaged by our history are just as capable and talented as Ms Barnard." The judgment went on to warn that "if decision-makers continually disregard talented candidates while searching for capable individuals from disadvantaged backgrounds, it creates a false impression that the candidates who are eventually chosen are not as capable as those who are rejected. This impression injures the dignity not only of the candidates who are rejected, but also the candidates who are appointed."
The minority judgment also echoed the call in the main judgment to "remain vigilant that remedial measures are not an end in themselves". Such measures were an exception to the general principle that race and gender were not proper bases for granting or refusing employment or other opportunities. The Constitution made an exception because it recognised that "substantive equality could be achieved only by providing advantages to groups of people upon whom apartheid imposed heavy disadvantages". Using the racial classifications that apartheid had used, was a case of "fighting fire with fire".
In another judgment which concurred in upholding the appeal against the SCA, Johann van der Westhuizen conceded that Ms Barnard "may well be innocent of participating in the apartheid past". However, as a member of a racially privileged group she might have benefited: "The innocent often have to account for sins committed before they were born." Ms Barnard had indeed "shown commendable understanding of the need for restitutionary measures". She had also not attacked the constitutional validity of the Employment Equity Act, Section 2 of which "specifically states that affirmative measures do not constitute unfair discrimination".
He went on to say, "Although equality can manifest in various forms, in the context of this case it takes the form of representivity." Referring to the fact that she was a white woman, he added, "By appointing Ms Barnard, her designated group would have been significantly over-represented and her appointment would have aggravated racial inequality."
Justice van der Westhuizen also addressed the question of service delivery. He stated,
There may sometimes be tension between efficiency and representivity. However, it is incorrect to assume that the ideals of representivity and efficiency are necessarily opposed. […] Representivity may increase service delivery and efficiency, because it raises the legitimacy of a public institution in the eyes of the community it is meant to serve. A police service which is representative of the community it serves is more likely to enjoy the trust, co-operation, and support of that community. […] It cannot be said that it was disproportionate for the commissioner to rank representivity higher than the possible impact on service delivery in this case.
In yet another minority judgment which agreed that the SCA decision should be set aside, Chris Jafta disputed the use of a "fairness" criterion. Failing to appoint Ms Barnard "and reserving the post for black officers" were consistent with the purpose of the Employment Equity Act and therefore "cannot constitute unfair discrimination" or be taken to be unfair. The Labour Appeal Court had been correct to find against Ms Barnard. Justice Jafta reiterated that court’s "eloquent judgment":
The over-representivity of white males and females is a powerful demonstration of the insidious consequences of our unhappy past. White people were advantaged over other races especially in the public service. This advantage was perpetuated by the transfer of skills, some critical, to the same white race to the exclusion of others, especially blacks. The over-representivity of whites in level 9 is a stark reminder of our past and indeed the present and yet another wake-up call to decisively break from these practices […] by embracing the restitutionary spirit of the Constitution.
[T]he Labour Court [whose decision the Labour Appeal Court overturned] erred in treating the implementation of restitutionary measures as subject to the individual conception of a right to equality. This is more so as this approach promotes the interests of persons from non-designated categories to continue enjoying an unfair advantage which they had enjoyed under apartheid. Treating restitutionary measures in this manner is surely bound to stifle legitimate constitutional objectives and results in the perpetuation of inequitable representation in the workplace.
As already noted, Section 9 of the Constitution provides that discrimination on racial (and various other) grounds is presumed to be unfair unless the contrary is proved. The essence of the finding in favour of Ms Barnard by the SCA was that the police had failed to provide this proof. Their reasons were described as "scant" and "contrived". The fact that the post for which Ms Barnard had applied had been advertised no less than three times gave the "lie" to the police commissioner’s assertion that the reason it was not filled was that it was not "critical" to service delivery.
The different weight given to "fairness" by the two courts is striking. Whereas the SCA said that "scrupulous adherence to fairness" was necessary in redressing the "racist" past and achieving a balanced society, the Constitutional Court said there was no reason for the SCA to burden the police with the burden of having to provide this proof because Ms Barnard had accepted their employment equity plan as valid. Moreover, as long as that plan itself did not lay down rigid quotas, it was lawful.
The Constitutional Court thus did not deal with the overriding question of whether Ms Barnard had been fairly treated. That court also said that the subsequent promotion of Ms Barnard demonstrated the "flexibility" characteristic of targets as opposed to quotas. But it could equally have argued that flexibility might have been demonstrated by appointing a white woman to the post for which she originally applied rather than leaving it vacant on the grounds that there were already too many white women at this salary level. The plan laid down seven criteria for appointments: competence, prior learning, experience, performance record, suitability, conduct record, and employment equity. Ms Barnard’s failure to secure the promotion she sought showed that the last of these trumped all six of the others, suggesting not a flexible but a dogmatic approach.
But there is a wider problem. The Employment Equity Act goes further than the Constitution in its approach to racial preferencing. In Section 9 of the Constitution (the equality clause), the guarantees of equality and the prohibitions against discrimination are subject to the provision that equalising measures are permissible when they are designed to promote equality by advancing people disadvantaged by unfair discrimination. There is no reference to "equitable representation"; only, in Section 195, to "broad representation".
Section 15 of the Employment Equity Act, however, defines affirmative action measures as those "designed to ensure that suitably qualified people from designated groups have employment opportunities and are equitably represented in all occupational categories and levels in the workforce of the designated employer". This objective goes beyond the equalising "measures" licensed by Section 9 of the Constitution. This is so even if equitable representation involves "numerical goals" rather than "quotas". The implication is that remedial measures in the form of affirmative action must be implemented until such time as the objective of "equitable representation" has been achieved. Moreover, according to the main judgment, this requires representation that reflects the country’s demographic breakdown.
Despite the warning in the Cameron minority judgment, remedial measures have become an end in themselves, and not only in the police. This was almost inevitable once the "representivity" goal became the overriding objective rather than preparing people for advancement through proper education.
Such preparation is more difficult, and likely to take longer, than simply putting them in jobs to satisfy a racial target and then proclaiming the success of "remedial measures" even if no real remedial measures have been implemented. It is the easy, lazy, way out. Even though the Employment Equity Act requires "training" and "skills development" to be components of affirmative action, these have been accorded a lower priority than representivity and "diversity".
The main judgment of course said that beneficiaries had to be equal to the task at hand. However, making sure they are so equal is more difficult than simply fulfilling a numerical target, even if such target is more "flexible" than a quota. Even though the main judgment accepted the argument that "service delivery" would not be compromised by failure to appoint Ms Barnard, South Africa is today swamped with "service delivery" problems in the police and elsewhere. Justice van der Westhuizen’s view that there "may sometimes be tension between efficiency and representivity" has proved to be over-optimistic. We shall hear more of this below.
Justice van der Westhuizen was also somewhat complacent in implying that Ms Barnard should in some way have to account for the sins of the past, even though she herself might be "innocent". The persistence of racial preferencing policy may lead to a growing sense of unfairness among the white, coloured, and Indian minorities, as more and more people are born who have no recollection of apartheid. Persons born in 1994 are now 24 years old and many of them will already have given birth to the second generation of supposedly "born-free" children.
"Tension" between efficiency and representivity is not the only kind possible. There is also tension between the individual right to "equal protection and benefit of the law" contained in Section 9(1) of the Constitution and the notion of "substantive equality" as expressed in numerical targets reflective of racial demographics but not defined in the Constitution. Limitations on constitutional rights are permitted by Section 36 of the Constitution subject to certain conditions, among them that the limitations should be specified in a law of general application and that they should be "reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom". Limitations must also take into account the nature of the right, as well as the importance of the purpose of limitation, along with its nature and extent. Nowhere does the limitation clause specify that rights, least of all the right to equal protection of the law, may be limited in the name of "transformation".
The Black Management Forum welcomed the judgment and said South Africans would "not find peace until workplaces reflect the national demographics of our country". The Higher Education Transformation Network said that the judgment "serves as a lesson and Achilles heel to right-wing forces such as Solidariteit and AfriForum who have for years been abusing the court system and subverting the implementation of employment equity legislation for their own narrow selfish ends".
The Star said in an editorial that the judgment "appears to put affirmative action […] on a collision course with practical realities". The chain of events around Ms Barnard made a "mockery of police management by identifying a post as important, advertising for proper candidates, getting them but not choosing them because they were the wrong colour, and then scrapping the position altogether". The Citizen stated in an editorial that the police "and other government departments will be emboldened in the application of employment equity".
A lawyer involved in the case said that the judges of the Constitutional Court had used "every logic chopping device they could" to find that Ms Barnard had been fairly treated. He added that whereas affirmative action – "properly so-called" – looks only to the past of unfair discrimination, the police’s employment equity plan entailed "race and gender norming in pursuit of a grand experiment in social engineering".
Dave Steward, executive director of the FW de Klerk Foundation, said that the judgment validated "harmful discrimination against millions of South Africans for an indefinite period on no basis other than their race". The judgment also raised "the serious probability that even in the most deserving cases the majority of the court will side with racially motivated affirmative action over the individual’s human rights to equality, human dignity and protection against unfair discrimination". Mr Steward further said that the judgment had consigned "the foundational constitutional principle of non- racialism to some undetermined date in the middle or distant future".
He added that those who supported "demographic representivity" based their approach on fundamental fallacies. The first was that affirmative action measures had promoted equality. The second was that affirmative action by itself was the best means of empowering disadvantaged South Africans. The third was that all whites were advantaged and all blacks disadvantaged.
The DCS case
Originating with the Commission for Conciliation, Mediation, and Arbitration (CCMA), this case went from the Labour Court via the Labour Appeal Court to the Constitutional Court.
It was brought by Solidarity on behalf of ten employees of the Department of Correctional Services (DCS), which is responsible for the country’s prisons. One of the employees was a white man, the others were coloured men and women.
Despite the recommendations of interviewing panels, they were all refused appointments on the grounds that they were "over- represented" at the relevant occupational levels. At issue was the 2010-2014 Employment Equity Plan of the department, which specified particular percentages for each race. The Constitutional Court handed down judgment in July 2016. The judgment went in favour of the nine coloured employees, but only because the DCS had not used the right demographics in refusing their appointment.
Raymond Zondo, writing for himself and five of his colleagues, rejected Solidarity’s contention that the targets contained in the plan were quotas. They were instead numerical targets which had been applied with flexibility. This flexibility was demonstrated by evidence that the national commissioner of correctional services had in other instances approved "deviations" from its numerical targets to make appointments where scarce skills or "operational requirements" necessitated it.
The judgment went on to say that the "Barnard principle" applied to people of all races (and not only whites) and to both sexes.
This meant that employers were entitled to refuse appointment to anyone falling within a category of persons already adequately represented at a particular occupational level.
Justice Zondo noted that according to the department’s equity plan, numerical targets were 9.3% for white males and females, 79.3% for African males and females, 8.8% for coloured males and females, and 2.5% for Indian males and females. The plan also referred to the department’s progress reports, which had stated that white and coloured males had been "grossly over- represented" at various salary levels.
"Transformation" of the workplace meant that it had to be "broadly representative of the people of South Africa". Section 195 of the Constitution spoke of the "need to redress the imbalances of the past to achieve broad representation". This was echoed in the Public Service Act and the Correctional Services Act.
In terms of the Employment Equity Act, an employer needed to conduct an "analysis" to identify under-representation.
Numerical goals then had to be adopted to achieve equitable representation. However, in determining the extent of representation, the employer was required by Section 42 of this Act to take into account not simply the demographic profile of the national population but also the national and regional economically active populations.
This the DCS had not done, because it had used only the national and not also the regional data. Because the DCS had used the wrong benchmark it was not possible to determine whether it had been correct in claiming that the coloured and female individual applicants were over-represented. There was accordingly no lawful basis for determining that they were, with the result that failure to appoint them constituted unfair discrimination and unfair labour practices. The sole white applicant had legitimately been overlooked because whites were over-represented at that particular level.
The court ordered that where the posts had not already been filled, the DCS had to appoint the applicants and pay them with retroactive effect from the date on which they should have been appointed. Where posts had already been filled, they nevertheless had to receive the remuneration attached to the posts to which they should have been appointed, again with retroactive effect.
In a minority judgment, in which Edwin Cameron concurred, Bob Nugent rejected the main judgment’s view on "deviations" from numerical targets permitted by the national commissioner. Whereas the main judgment said these deviations showed that the targets were not "rigid" and that therefore they were not "quotas", Acting Justice Nugent said that allowing deviations in the "special cases" mentioned – scarce skills and operational requirements – did not mean that the whole plan was not rigid and lacking in flexibility.
He quoted excerpts of the plan, such as the provision that "at levels 9 and 10 only 51 African males, 198 African females and 2 Indian females can be appointed," and that "at levels 11 and 12 only 109 African females, 5 white females, and 9 coloured females can be appointed". These, he said, were a case of "cold and impersonal arithmetic" that was not in compliance with "constitutional transformation that is respectful of the rights and interests of everyone". The racial proportions of the population were not its "demographic profile". These were but one characteristic, and in themselves they did not provide a coherent basis on which to measure employment representivity. He added that it was "profoundly difficult" to reconcile the redress demanded by the Constitution with the constitutional protection that was afforded the dignity of others. That goal was "capable of being achieved only by a visionary and textured employment equity plan that incorporates mechanisms enabling thoughtful balance to be brought to a range of interests".
Acting Justice Nugent said that representivity in the workplace was achieved by "equitable access to employment opportunities – and employment opportunities are accessible to people only where they live". He added,
The objective of the EE Act is not to induce racial migrations to accommodate the statistics. Its objective is accessibility of employment opportunities and it achieves that objective only if it takes account of where applicants for the posts are located. [...] If racial proportions are to be the measure of a representative workforce then they must necessarily reflect the distribution of the people making up those proportions. To do otherwise produces irrational anomalies, as is evident in this case.
Acting Justice Nugent accordingly pointed out that coloured people comprised nearly 48.8% of the population of the Western Cape so that there was no "rationality" in restricting them to 8.8% of employment opportunities there, while simultaneously offering them 8.8 % of such opportunities in Limpopo, where they made up only 0.3% of the population.
"Sergeant at the Bar," an anonymous columnist on the Mail and Guardian, quoted some of these demographic "anomalies" and commented that to apply them to coloured people "who suffered 300 years of racism … is a travesty of the Constitution’s commitment to transformation". Solidarity hailed the judgment as a "major setback to government policy to implement the national racial demographics elsewhere in South Africa".
Applying regional as opposed to national demographics, would go some way towards correcting the anomalies of which Acting Justice Nugent spoke. But the racial breakdown of the population varies not only between regions but also between cities. Indians/ Asians account for 15% of the population of Durban but 1.2% of that of Cape Town. Africans vary between 45% in Cape Town and 90% in Rustenburg and Nelspruit. Whites range from 6% in Durban to 20% in Middelburg in Mpumalanga. There are also likely to be major discrepancies in the racial breakdown of populations of smaller towns. If applicants for jobs and promotions are to avoid having to relocate in order to meet "representivity" targets, such targets will have to be applied with a great deal of "flexibility".
Although Acting Justice Nugent spoke tantalisingly of an employment equity plan that gave balance "to a range of interests", he did not specify what these might be. Logically they could include factors such as age, experience, and level of education. Incorporating such factors as well as racial demographics down to local level would ensure a better fit between the requirements of particular posts and the persons appointed to them. It would also increase the "flexibility" of equity plans. As we shall see in the last part of this paper, failure to apply these other factors has had a detrimental impact on the performance of the public sector.
The original Employment Equity Act of 1998 said that compliance with racial targets should refer to "the demographic profile of the national and regional economically active population". Amendments proposed in 2010 deleted the reference to "regional" demographics. The original clause was retained, however, when its proposed deletion provoked much criticism, especially after Jimmy Manyi, chairman of the Commission for Employment Equity, said that coloured people were "over-concentrated" in the Western Cape and that they should move elsewhere to "fill the gaps". But in 2013 an amendment act empowered the minister of labour to issue regulations specifying the circumstances in which either national or regional demographic should be taken into account. Draft regulations containing such specifications were published the following year, but then dropped after widespread criticism.
Revised codes of good practice for black economic empowerment (BEE) which came into operation in 2015 make no reference to regional data. Although these reinforced suspicions that the government was still keen to get rid of the regional requirement, the annual report of the commission for 2016-2017 included tables for both the national and the provincial economically active populations. However, the fact that the commission used provincial (as well as national) breakdowns does not mean that the exclusively national breakdowns provided in the codes have been overridden.
Employers may instead find themselves subject to two sets of requirements – one under the Employment Equity Act and the other under the BEE codes.
Speaking at the end of June 2018 at the launch of the commission’s eighteenth employment equity report, the minister of labour, Mildred Oliphant, said that the public sector was "now representative in terms of race". The minister for the public service and administration, Lindiwe Sisulu, had in fact said this in 2013. Yet neither minister gave any indication that the achievement of representivity meant that racial targeting could now be relaxed. The main judgment in the Barnard case warned of the need to "remain vigilant that remedial measures under the Constitution are not an end in themselves". But the transmogrification of affirmative action measures into employment equity targets based on racial demographics carries the risk that the targets will remain permanent to ensure that the representivity of beneficiaries of "remedial measures" does not fall below the targets.
The Fedsas case
All public schools in South Africa (almost 24 000 at the last count) are required by law to have governing bodies. Some schools are in rural areas, but most are township schools previously run by the Department of Bantu Education or the administrations of the ten homelands. Most such schools are officially classified as too poor to be allowed to charge fees. But public schools also include some 3 000 former "Model C" schools, a category of white schools in what were previously exclusively white suburbs that were permitted by the previous government to admit black children. These suburban schools typically have active school governing bodies (SGBs) with extensive parental involvement and commitment. They collect billions of rands in fees, enabling them among other things to employ teachers over and above those provided by the state.
Suburban schools vary enormously in their racial complexions, which have indeed been changing. Some English-medium suburban schools in suburbs that are still largely white, are now almost entirely black. Some formerly Afrikaans schools have become almost entirely black, and are now single-medium English schools. Many Afrikaans schools have become parallel- or dual-medium schools, and are now largely "coloured" schools. Some of the remaining 1 279 Afrikaans single-medium schools (4.4% of all schools in the country) are still exclusively white.
In the Western Cape, some formerly white schools are now very largely coloured and use Afrikaans as a medium of instruction, but some of these are also adopting English.
This case revolved around admissions to these (as well as other) public schools. Who had the power to decide – SGBs or provincial officials? The Federation of Governing Bodies for South African Schools (Fedsas), whose membership comprises SGBs of more than 2 000 schools, contended that regulations made by the member of the executive council (MEC) for education in Gauteng were an unjustifiable encroachment on the authority of SGBs because they empowered officials to enforce admissions on schools. The regulations in question were promulgated in 2012, only for most of them to be struck down by the High Court. After they were reinstated by the Supreme Court of Appeal (SCA), Fedsas took its case to the Constitutional Court. In electing to hear the appeal, that court said that the question of "equitable access to quality basic education is of vast public importance". The unanimous decision of all 11 judges against Fedsas was handed down on 20 May 2016.
Writing for the court, the deputy chief justice, Dikgang Moseneke, rejected the contention by Fedsas that the provincial regulations were invalid on the grounds that they contradicted national legislation or went beyond the remit of provincial legislation. While the (national) Schools Act said that "the admission policy of a public school is determined by the governing body of such school," it also said that this was subject both to that Act and to provincial legislation, which, in the case of Gauteng, empowers the MEC to make regulations as to the admission of learners.
Quite apart from its view that the MEC was not empowered to make the regulations in the first place, Fedsas objected to the content of the regulations. One such regulation prohibited a learner’s prospective school from obtaining confidential reports about the learner which disclosed the financial status of a parent, whether that parent could afford school fees, or any other information that could be used to discriminate unfairly against the learner. Fedsas argued that this was too wide and that access to such information might enable an SGB to assess whether learners had special education needs. The MEC countered that when schools were told in advance that a learner had learning or remedial difficulties or was troublesome, they tended to refuse admission. Justice Moseneke said this regulation was properly tailored to arrest the specific mischief of unfair discrimination, and that the Fedsas attack on it was "meritless". The school could call for the confidential information after the learner had been admitted.
One of the other contested regulations dealt with learners who had not yet been placed in a school at the end of the admission period for the forthcoming school year. It empowered provincial officials to place such learners "at any school" not yet declared full and where there were no unplaced learners on the waiting list. Provincial officials were also empowered to determine the enrolment capacity of a school and to declare whether or not the school had reached that capacity and was therefore full. Fedsas argued that these provisions ousted the SGBs, but the court held that until national norms and standards had been put into place, the power to determine capacity and declare schools full "rightly" fell upon provincial officials.
The court also pointed out that the Schools Act introduced a number of grounds on which learners could "never" be refused admission, among them inability or failure to pay school fees or failure to subscribe to the "mission statement" of the school.
Justice Moseneke said that parents "must be meaningfully engaged in the teaching and learning of their children". SGBs were "a vital lifeblood to proper learning and teaching". The Schools Act carved out an important role for parents and other stakeholders in the governance of public schools. SGBs were "made up in a democratic and participatory manner and ordinarily would advance the legitimate interests of learners at a school". But the Constitution and the Schools Act entrusted vital tasks to the provincial MEC and other officials.
He further said,
[W]hen a school fashions its admission policy it will be actuated by the interests of its learners. It is also quite in order that a school seeks to be a centre of excellence and to produce glittering examination and other good outcomes. But public schools are not rarefied spaces only for the bright, well-mannered and financially well-healed learners. There are public assets which must advance not only the parochial interest of its immediate learners but may, by law, also be required to help achieve universal and non- discriminatory access to education.
Also before the court was the issue of feeder zones for public schools. The regulations provided that until an MEC determined such zones, "default zones" currently in operation (in practice a 5-kilometre radius of the school) would apply. Equal Education, an education lobby group admitted as a friend of the court, contended that this meant that "apartheid geography" would be perpetuated. Fedsas argued that leaving the default zones in operation would enable the MEC to escape his lawful duty to consult "relevant stakeholders" before deciding upon new zones. The court ordered the MEC to determine such zones by not later than 12 months from the date of the judgment (which meant 20 May 2017).
Commenting on the earlier SCA judgment (now upheld by the Constitutional Court), Panyaza Lesufi, Gauteng MEC for education, said it was "a victory for transformation and access to education for all". Of the Constitutional Court’s judgment, he said that it "finally broke the back of apartheid planning". It would "force schools in posh neighbourhoods that often claim to be full and deny pupils access to accommodate them". Afrikaans schools "are exclusively white and it is time for that to change". Mr Lesufi was also reported to be considering extending the zoning radius to 30 kilometres, so that "a child in Soweto will no longer be restricted to apply for admission only at schools in Soweto". He did not want schools that were for "klein base" (English: little bosses) alone.
Fedsas said the ruling would put huge pressure on performing schools to admit more pupils than reasonably required. Gauteng had "a notorious lack of planning for the increasing pupil numbers in the province" and Mr Lesufi was shifting the focus away from bettering the quality of education in schools to wanting power in their running.
The judgment was welcomed by the South African Democratic Teachers Union (SADTU), which said, "It is our long-held view that school governing bodies in former Model C schools, misled by Fedsas, manipulate legislation to preserve their racially discriminatory policies." Some years before, however, in a comment on another judgment, Jonathan Jansen, then rector of the University of the Free State and president of the Institute of Race Relations (IRR), said, "There are very few former white public schools that remain predominantly white." On another occasion he said he was "convinced that many white-dominant schools, particularly Afrikaans institutions, use their language policies as one of the instruments for limiting black enrolments".
Sara Gon, one time chairman of the governing body of a suburban school in Johannesburg and policy fellow at the IRR, said that many such schools accommodated some 30% of pupils who were exempt from paying fees or who could afford to pay fees but did not do so. She said that if the proportion of pupils who did not pay fees exceeded 30% it "becomes increasingly difficult for paying parents to afford school fees necessary to maintain a school". The headmaster of a suburban school which charges R14 000 a year in school fees and whose pupils are 30% African, 5% coloured, 15% Indian, and 50% white told the writer of this paper that exemptions from fees cost the school R1.6 million a year; this amount had to be made up by fund- raising in order to avoid charging even higher fees to parents who did pay. SGBs play a vital role in fund-raising for these and other suburban schools.
Justice Moseneke characterised suburban public schools as "rarefied spaces" for "financially well-healed learners". He cited no evidence for this generalisation. His statement that such schools should be required "to help achieve universal and non- discriminatory access to education" is also problematic.
In the first place it appears to take no account of the fact that many suburban schools accommodate pupils who do not pay fees, or that these pupils sometimes include the children of domestic workers living in townships but employed in the suburbs, who are unlikely to be "financially well healed".
According to Statistics South Africa 1.3 million children travel more than an hour from home to school each day. Many of these are township children accommodated in suburban schools. Such schools are already helping to provide decent education for children of poorer families. It is unreasonable and unrealistic to expect them to do more.
Secondly, the provision of access to education is a state responsibility. It is beyond the capacity of individual schools to meet this demand. The fundamental problem of school education in South Africa, as numerous studies have shown, is the poor quality of the great majority of township schools. Compelling suburban schools to admit more pupils, will do nothing to improve the quality of schooling for the vast majority of South Africa’s children.
According to the Foundation of Governing Bodies, which represents some 700 SGBs, interventions by the Gauteng MEC to impose additional pupils on schools have not been nearly as extensive as was feared after the judgment was handed down.
The Gauteng education authorities failed to comply with the May 2017 deadline set by the Constitutional Court to determine new school zones, so the deadline was extended until November 2018. The national norms and standards for determining school capacity have also not been drawn up. In the meantime the national Department of Basic Education last year published draft legislation to confer "sole responsibility" for key appointments on provincial education departments. Final appointment of senior teachers and school principals was always in the hands of the provincial department, but the intention is apparently to remove the right of SGBs to make recommendations. This would strengthen centralised control of schools at the expense of SGBs. According to a memorandum attached to the draft legislation, giving provincial departments "sole responsibility" is "necessitated by the requirements of transformation". The draft regulations precipitated a deluge of comments, and nothing has yet been finalised.
The Tshwane street names case
The case arose out of a decision in 2007 by the council of the Tshwane Metropolitan Municipality, whose major city is Pretoria, to change 25 of more than 100 old street names. Names that included Hendrik Verwoerd, Louis Botha, and Walker, were to be replaced with names such as Nelson Mandela, Ismail Mohamed, Solomon Mahlangu, and Steve Biko. The High Court granted AfriForum an interim interdict against the name changes. This was upheld by a full bench of that court, against whose decision the council sought leave to appeal. But the Supreme Court of Appeal (SCA) refused leave. This decision was, however, reversed by the Constitutional Court, which granted leave to appeal and also upheld the appeal. Judgment against AfriForum was handed down in July 2016.
Essentially two issues were at stake. One was whether it was appropriate to grant leave to appeal. The other was whether the cultural rights that AfriForum was claiming in terms of the Constitution were actually protected by the Constitution. The main judgment was written by the chief justice, Mogoeng Mogoeng, with eight of his colleagues concurring. Two minority judgments were also issued.
In granting leave to appeal, Justice Mogoeng’s main judgment said that the Constitution was about "real justice, not mere formalities". Although pre-Constitution common law might have precluded an appeal, "the interests of justice" were now the only requirement to be met for the grant of leave to appeal.
The chief justice began by setting out the "essential context" of the case. He said that "through the preamble and the entire Constitution we imposed on ourselves a duty to transform".
Colonialism or apartheid were so stubborn that almost all cities, towns, and street names continued to "reverberate with great sounds of veneration for the architects of apartheid", whereas a very insignificant number of these names gave recognition "to the indigenous people of this country and other black people". Healing the divisions of the past, as required by the Constitution, had to begin by "removing from our cities, towns, ‘dorpies’, streets, parks, game reserves, and institutions, names that exalt elements of our past and cause grief to other racial groups […] so as to make way for the heritage and deserving heroes and heroines of the previously excluded".
Justice Mogoeng went on, "Nothing that objectively encourages or seeks to perpetuate the stereotypes, prejudice or discriminatory practices of the past is to be tolerated. Inclusivity, unity in diversity, recognition of the culture and history of white and black South Africans and reconciliation are our chosen paths to the prosperous future". All peace and reconciliation-loving South Africans should embrace the spirit of ubuntu. Moreover, the Constitution was never meant to be "a weapon, conveniently produced by some of us only when it could help advance illegitimate sectarian interests through legal stratagems".
Pretoria did not belong only to Afrikaners or whites. "All racial groups in this country deserve to have their culture, heritage, history, heroes and heroines respected and honoured by all."
Two judges, Johan Froneman and Edwin Cameron, issued a minority judgment. They dissented from the majority for two main reasons. The first was on the rules for hearing appeals against the grant of temporary interdicts (in terms of which the usual step, before anyone could proceed any further, was for the courts to consider whether a temporary interdict should be made permanent). Referring to the main judgment’s statement that the "interests of justice" now superseded the common law, they said they would refuse leave to appeal on the grounds that "[c]orrection of the injustices of the past is not best served by attenuating well-established and sensible rules and principles" for hearing such appeals.
Their second reason was the "implication" in the main judgment that "any reliance by white South Africans, particularly white Afrikaners, on a cultural tradition founded in history, finds no recognition in the Constitution, because that history is inevitably rooted in oppression". The oppressive history was there.
"But the constitutional discountenancing of a cultural history many continue to treasure has momentous implications for a substantial portion of our population."
The two judges said that the broad premise of the main judgment was that "the time has come to stop objections to name changes based on the cultural heritage that is rooted in a history of colonialism, racism and apartheid". Although they disagreed profoundly with AfriForum’s view of history, that did not entitle them to say that its members’ sense of belonging should not also be recognised under the Constitution.
Moreover, the two dissenting judges said the Constitution did not allow the judiciary to impose a national project of unity in diversity or ubuntu on the country. Indeed, the Constitution demanded recognition and tolerance of difference, even radical difference. "It is not consonant with the values of the Constitution to deny constitutional protections to people because of the content of their beliefs, views and aspirations."
The third judgment was issued by Chris Jafta. He agreed with the main judgment, which he indeed signed, but wished to add his own reasons. In the first place he disagreed with the view of Justices Cameron and Froneman that the main judgment had "attenuated well-established" rules. The only standard that applied to applications for leave to appeal to the Constitutional Court was the "interests of justice" derived from the Constitution and not the common law.
Secondly, Justice Jafta said that the rights of the community to "enjoy their culture", which were guaranteed by the Constitution, could not be exercised in a manner inconsistent with the Bill of Rights in that Constitution. It was "misplaced" to suggest that the "unquestionably transformative Constitution" could be expected "to recognise cultural traditions rooted in the racist past".
That past included the fact that streets and buildings reflected "exclusively the names of white people".
In response to these points, Justices Cameron and Froneman argued that AfriForum had been branded as racist, but that it had never been given an opportunity to contest this allegation. Referring to the practical implications of Justice Jafta’s remarks, the two judges asked whether they meant that "white Afrikaner people and white South Africans have no cultural rights that pre-date 1994, unless they can be shown not to be rooted in oppression?"
Although the court correctly pointed out that "a very insignificant" number of street names give recognition to the "indigenous people of this country", it failed even to discuss a simple remedy, which would have been to add the names of such people by changing the names of streets not named after Afrikaners or other whites. This would have been a means of recognising "previously ignored" heroes of certain sections of the population without denigrating people belonging to the culture and history of other sections. It would also have been a better means of achieving the objective espoused by the court that Pretoria "belongs to all of our people white and black, united in their diversity".
Although the two dissenting judges strongly criticised Afriforum for its references to "so-called historical injustices", they also defended the cultural rights of Afrikaners. The main judgment, by contrast, went out of its way to slight them. It also contradicted itself. On the one hand, it said that "all racial groups in this country deserve to have their culture, heritage, history, heroes and heroines respected and honoured by all". But it then went on to declare that some of the street names in question were "objectively offensive".
There are no doubt millions of blacks, and many whites, who revile the name of Dr Verwoerd. But there are also likely to be many people who find it deeply offensive to drive along a street named after Mr Mahlangu, who was hanged as an accomplice to the murder of two civilians in 1977. Although the court regarded him as a "freedom fighter", others would describe him as a "terrorist". Even with the passage of time, Mr Mahlangu is no more likely to command "respect and honour" among all than is Dr Verwoerd.
Apart from effectively impugning AfriForum’s motives as racist, the court criticised the organisation for making use of the Constitution to "advance illegitimate sectarian interests through legal stratagems". This does not send a reassuring signal to any cultural or other minority seeking to enforce its rights through due process of law. Although governments dominated by white Afrikaners and supported mainly (although not exclusively)
by Afrikaners were responsible for discriminatory legislation that inflicted immense harm and injustice upon black people, South Africa’s courts need to be vigilant lest black political authorities deprive those Afrikaners and their offspring of their constitutional rights. The Constitution talks of "healing the divisions of the past", but it does not license revenge. Redressing the injustices of the past does not necessitate inflicting new ones.
A former High Court judge told the author that an important principle of law had been "violated" by the main judgment in this case. That principle, well established for many years, was that an interlocutory order (such as an interim interdict) was not appealable. AfriForum had raised this point, but it had been dismissed on the grounds that the "interests of justice" overcame a rule of the common law. The former judge said that although this seemed to be only a procedural matter (a "mere formality", in the words of the chief justice), it was actually more important. Adherence to well-established common law rules created certainty, which was an important aspect of the rule of law. Arguing that the "interests of justice" trumped common law opened the way to the intrusion of the subjective preferences of judicial officers.
The University of the Free State case
The case turned upon the downgrading of Afrikaans. Previously it had been the language of instruction at the University of the Free State, a situation which changed when English was introduced with equal status as a parallel medium. Now English was to be the primary medium, with Afrikaans to be used only in special circumstances.
AfriForum and Solidarity successfully appealed to the High Court for the university’s new language policy to be set aside. The university then successfully appealed to the Supreme Court of Appeal (SCA) for the High Court’s decision to be reversed. The two applicants thereafter went to the Constitutional Court for leave to appeal against the SCA decision in favour of the university. The Constitutional Court ruled that Solidarity had no standing to bring the case, while AfriForum’s application for leave to appeal was refused. Judgment was handed down in December 2017. Three judges dissented.
With seven of his colleagues concurring, the chief justice, Mogoeng Mogoeng, said that South Africa’s "young constitutional democracy [...] needs as much litigation as possible, as a platform for the divination of hidden meanings of unclear yet crucial constitutional clauses and concepts".
However, he also said that granting leave to appeal in this case would be "an injudicious deployment of scarce and already over- stretched judicial resources".
The judgment began by setting out the "essential context" of the dispute between the university and the two applicants. Quoting an earlier judgment of the court, the chief justice said apartheid had left many scars. White schools had been "lavishly treated by the apartheid government" while black ones had been "deliberately funded stingily". The Constitution "ardently" demanded that this unevenness be addressed by "radical transformation" of society as a whole and of public education in particular. The demand for such transformation, Justice Mogoeng added, applied with equal force to universities where Afrikaans was the sole medium of instruction.
Apartheid was a "crime against humanity" and Afrikaans had been used "as an instrument of control, exploitation and systematic humiliation". The language was now being phased out as a medium of instruction to advance "a constitutionally- inspired transformational agenda […] to deracialise classes, foster unity and reconciliation and to defuse observable racial tensions". The question now before the court was whether it was "reasonably practicable" for the university to retain Afrikaans as a second major medium of instruction. In deciding this issue, the chief justice said, "[w]e all must consciously guard against the possibility of a subliminal and yet effectually prejudicial disposition towards Afrikaans". Judicial officers should never be "emotionally entangled" in matters presented for their determination.
As noted early on in this paper, language rights in the educational sphere are set out in Section 29 of the Constitution. Everyone has the right to receive education in the official language of their choice in public educational institutions where this is "reasonably practicable". The meaning of this phrase, said the judgment, lay at the heart of the application. Section 29 (2) required "equity, practicality and the need to redress the results of the past racially discriminatory laws and practices". The need to cure the ills of the past could be accommodated only if "the exercise of the right to be taught in the language of choice does not pose a threat to racial harmony or inadvertently nurture racial supremacy". If "access, integration and racial harmony are imperilled", the right to be instructed in the language of one’s choice could be taken away. Although it might be practicable to retain Afrikaans as a major medium of instruction, it could not be "reasonably practicable" when "race relations are poisoned thereby".
Had race relations been poisoned? The main judgment said that the university would be in a position to know whether or not white Afrikaner students had demonstrated respect for the dignity of black students and whether a credible connection had been made between racially segregated classes and racial tensions. It quoted the university as having said that the use of Afrikaans had unintentionally become a facilitator of ethnic or cultural separation and racial tension from 2005 to 2016. Its continued use would leave the results of white supremacy not being redressed but kept alive and active. The use of Afrikaans as a second major medium of instruction had virtually subverted racial integration and generated racial tension. By dividing students largely by race, the parallel medium language policy worked against the integration commitments of the university. There was no reasonable alternative for the university other than to phase out Afrikaans as a medium of instruction.
It would indeed be "unreasonable to slavishly hold on to a language policy that has proved to be the practical antithesis of fairness, feasibility, inclusivity and the remedial action necessary to shake racism and its tendencies out of their comfort zone".
In the minority dissenting judgment, Johan Froneman, with the concurrence of Edwin Cameron and a judge appointed to the court in an acting capacity, said he would have granted leave to appeal. The central issue was this: "what circumstances justify preventing someone from receiving instruction in the official language of his or her choice?" The main judgment had accepted the university’s assertion that it was impossible to provide education in a language of choice without discriminating on the basis of race. This was a "a step too far". On the papers submitted, there was "no suggestion that all, most or even a substantial proportion of white Afrikaans-speaking students being taught in that language had been guilty of racial discrimination". These students had been deprived of a right and had a sanction visited upon them without evidence that they had been guilty of racial discrimination.
Summarily, disposing of AfriForum’s application for leave to appeal, without an oral hearing, would strengthen fears that democratic transformation would lead to the suppression of the Afrikaans language: "It is important that the burden of the undeniable injustices perpetrated by white Afrikaans speakers in the past, which are necessarily and justifiably condemned, should not be visited disproportionately and uncritically on future generations of white Afrikaans speakers."
Justice Froneman said he would have referred the matter back to the High Court in which the case had originally been heard. The university could then present evidence on the nature and extent of any racial discrimination by students or lecturers using Afrikaans, the disciplinary proceedings or other measures taken to address these acts of racial discrimination, and if none of these measures had been taken, why they had not been taken.
AfriForum would also then be able to present evidence on practicable alternatives available to continue parallel medium instruction that would not result in indirect racial discrimination.
Even though the chief justice warned against "emotional entanglement" and "prejudicial" attitudes towards Afrikaners on the part of judges, the main judgment was free of neither. It also accepted bold assertions made by the university without their having been subjected to examination (a defect which the minority judgment sought to remedy). The mere use of Afrikaans in some classes was held to be the source of racial tension. No mention was made of the possibility that tension might arise if non-Afrikaans students object when Afrikaners seek to exercise their language rights.
Moreover, given that other universities may in due course also wish to downgrade Afrikaans, the main judgment was shortsighted in declining leave to appeal on the grounds that this would be a waste of judges’ time – this despite having said that our "young constitutional democracy [...] needs as much constitutional litigation as possible [...] for the development of its jurisprudence".
Even though it may be true that Afrikaans, in the main judgment’s words, had been used as an instrument of control and humiliation, it does not follow that Afrikaners wishing to exercise their language rights will "perpetuate racial supremacy", even if "unwittingly". Moreover, although the main judgment repeatedly emphasises the constitutional requirement to "redress the results of the past racially discriminatory laws and practices", it does not explain how depriving the current generation of Afrikaans students of their language rights actually achieves that. While the relevant part of the Constitution – Section 29(2) – also speaks of the need for "equity" and "practicality" , the main judgment focuses almost exclusively on the "redress" requirement.
Property and other rights and the AgriSA case
As we have seen, the mining industry has been declining rather than expanding. The expectation voiced by the Constitutional Court in the AgriSA case has proved to be forlorn. Although the court said that downplaying property rights was necessary to open up mining opportunities "for previously disadvantaged people" this has not happened on any significant scale. There are many reasons for this, among them rising costs and, until recently, declining commodity prices. But the malfeasance and incompetence that characterises so many organs of state also applies to the Department of Mineral Resources. Big mining companies have suffered from this. So have so-called "junior miners". There is now virtually no exploration taking place in South Africa. Part of the reason for the decline of the mining industry is the implementation of transformation in the form of employment equity policies throughout the public sector – more information about this appears below.
But the AgriSA judgment has been damaging in other ways too. Through the argument that when the state took property into "custodianship" the payment of compensation could be avoided, it gave judicial sanction to the notion of expropriation without compensation. Demands for this have subsequently grown in strength among politicians and various lobby groups. Even though no legislation to this effect had been enacted by the time this paper was being written, the clear threat to property rights has been enormously damaging to the South African economy. It has created the kind of "policy uncertainty" that deters would- be investors from committing the capital essential to stimulate economic growth.
The AgriSA case, moreover, was the first one of the six under discussion in this paper in which the court spoke of the "constitutional imperative to transform our economy". As noted earlier in this report, the Constitution contains no such imperative. It speaks of healing the divisions of the past, and of promoting equality, but it does not speak of transformation. Section 36 specifies "factors" according to which constitutional rights may be limited. The need to implement a "transformation imperative" is not one of these factors. As already noted, Section 39 says that in interpreting the Bill of Rights the courts "must promote the values that underlie an open and democratic society based on human dignity, equality and freedom". They must also consider international law and "may" consider foreign law. Nowhere are the courts told that they must also consider "transformation imperatives" – or even that they "may" do so. In claiming that the Constitution contains such imperatives, the Constitutional Court is putting words into the Constitution’s mouth. This is a step too far.
It is also ominous. If property rights, which the Constitution seeks to entrench, can be attenuated by saying that an "overly liberal interpretation" undermines "transformation", then the contrived transformation imperative can also be used to override other constitutional rights on the grounds that they should not be interpreted too "liberally" either. Far from stoutly defending constitutional rights, which is one of its most important functions, the Constitutional Court has opened the way to undermining them. Although the Constitution proclaims itself to be the "supreme law of the Republic", the Constitutional Court seems to be saying that the "transformation imperative" as adopted and interpreted by itself is actually the supreme law.
As pointed out above, this is ominous. Since there is no constitutional definition of what "transformation" might mean, elevating it to an "imperative" opens the way to arbitrary action – and even legislation – inimical to the very certainty embodied in the notion of "the rule of law", also a foundational value of the post-apartheid South Africa. In the view of Francois Venter, professor of law at the North-West University, if "transformation" is not clarified in constitutional terms, "it is more than likely that it will increasingly become a justification for legislative, executive, administrative, and judicial arbitrariness, and the neutralisation of the rule of law".
Employment equity, public services, and the Barnard case
Once again, the Constitutional Court referred to the "transformative mission" of the Constitution, this time with the intention of promoting "substantive equality". As we have seen, the Constitution makes no reference to "transformative". Nor does it refer to, let alone define, "substantive equality". This latter term is also absent from the Employment Equity Act.
The "legislative measures" to advance the disadvantaged and the principle of "broad representation" contemplated in the Constitution have been transformed into "equitable representation" and "substantive equality". What this last phrase actually means is not clear, although the court clearly believes that it is permissible, provided it is measured by targets rather than quotas. A great deal of course depends on whether a figure in an employment equity plan represents a "target" or a "quota". The former supposedly suggests flexibility, the latter supposedly rigidity. The former is lawful, the latter unlawful. Ms Barnard lost her case because she fell foul of a "target", but on the reasoning of the court she would have won it if she had fallen foul of a "quota". The court said that it was "curious" that the legislation did not define quotas, and that it would be "unwise" to give the term meaning. However, given that so much hangs on the difference, it is also "curious" that the court failed to provide a definition.
It is moreover a pity that the court did not deal with the issue of whether the Employment Equity Act itself was possibly unconstitutional in turning "broad representation" into "equitable representation" in "all occupational levels" according to "numerical goals". If a material difference can be found between "targets" and "quotas", perhaps there is an equally material difference between "broad representation" and "equitable representation". If discrimination is fair to achieve a target but not a quota, then perhaps discrimination is fair when it pursues "broad representation" but not fair when it pursues "equitable representation" in "all occupational levels".
According to F W de Klerk, former state president, all parties to the constitutional negotiations prior to the 1994 election accepted that the measures to advance disadvantaged people contemplated in the Constitution entailed a "soft" form of affirmative action, with a focus on training and "inputs", rather than quotas or "outputs". "There was never any talk of imposing demographic representivity." Nor was it intended that "people without the appropriate qualifications would be appointed to posts on merely racial grounds".
Has its belief in the constitutional imperative of transformation caused the Constitutional Court to give excessive weight to "broad representation"? The section of the Constitution dealing with public administration – Section 195 – does not give priority to "broad representation". It stipulates that employment practices should also be based on "ability, objectivity, [and] fairness", while "efficient, economic, and effective use of resources must be promoted". Section 196 charges the Public Service Commission with the task of maintaining "effective and efficient public administration".
The main judgment indeed warned that beneficiaries of affirmative action had to be equal to the task at hand. They had to be "suitably qualified in order not to sacrifice efficiency and incompetence at the altar of remedial employment".
The minority judgment said that the quality of public bodies should not be sacrificed to achieve representivity and redress past disadvantage. Arguably, however, implementation of representivity targets has been among the factors undermining the quality of services provided by public bodies.
Quality of public services
There is abundant evidence of the poor quality of public bodies and the poor services they provide. A former finance minister, Trevor Manuel, said in May 2018 that the presidency of Jacob Zuma had been "a total disaster for South Africa". Virtually all of the state-owned companies had been "bankrupted by the awful combination of corruption and mismanagement". In June 2018 he said that when he took up his post in 1996, none of these companies was dependent on handouts from the state. Now, however, their contingent liabilities were among the biggest on the national balance sheet. Mr Manuel added that it would take more than a decade for the economy to recover from the destruction left by state capture and "inefficiencies". Eskom was a textbook case of how things could go wrong. In 1996 it was "well administered" and had a better credit rating than the government itself.
Mr Manuel also blamed Mr Zuma for the "destruction of key state institutions, especially in the criminal justice and state security institutions". In addition, hospitals were not functioning properly, and school feeding programmes in many districts had been discontinued. Incompetent ministers had appointed unqualified directors general in many departments, "happy that competent and dedicated professional public servants had been driven out. The state had been corroded by poor governance and maladministration".
All of this is no doubt true. That corruption and criminality has flourished under Mr Zuma is beyond dispute. But some of the problems predate the worst excesses of his regime, which lasted from 2009 to 2018.
The point emerges clearly from a sample of news reports limited to the single year of 2008, when Thabo Mbeki was still president. That was the first year in which the country suffered a series of major blackouts of electric power at the hands of Eskom, which in 2001 had been named by the London Financial Times as "power company of the year" and which in 2004 had won an award as South Africa’s "most admired brand". The minister of minerals and energy now admitted that the lack of maintenance and refurbishment of electricity distribution infrastructure "poses a threat to our economy".
Mr Manuel himself, then still finance minister, had to sort out problems at the Land Bank. According to an editorial in BusinessDay, the bank was "but one among scores of state institutions and agencies that are in a state of collapse due to mismanagement, be it of the political, administrative or corrupt kind". It was all very well, said the paper – and this was ten years ago! – "insisting that transformation be the state’s first priority, but this cannot be at the expense of an institution’s capacity to perform its primary mandate".
In the Eastern Cape 140 babies died in the first three months of 2008, mostly of gastro-enteritis, as a result of what an official report admitted was irrational patient management and inadequate health care in nine hospitals. The Democratic Alliance complained that many hospital chief executives there and elsewhere had neither the experience nor the training to do their jobs properly. Referring to tuberculosis "having become the leading cause of natural deaths in South Africa", an AIDS activist spoke of "chronically failing systems giving it licence to kill". The Inkatha Freedom Party called for an investigation into South Africa’s "callous, incompetent and criminally negligent health care system". An associate of Mr Zuma spoke of a collapsing health system and a seriously weakened civil service that was eroding service delivery.
The minister of water affairs and forestry admitted that most municipal sewerage works in most provinces were operating at below acceptable standards. Her department said it was battling to retain skilled staff and support under-resourced municipalities. A water specialist at the Council for Scientific and Industrial Research said that up to 50% of municipalities "do not even have one qualified engineer on their staff".
A report by the Municipal Demarcation Board in March 2008 found that 70% of the country’s 46 district municipalities, and 53% of the 231 local municipalities, were performing fewer than half of their constitutional functions. The National Treasury warned that underinvestment in infrastructure and poor response to growth in demand for services could undermine economic growth and poverty reduction. The South African Local Government Research Centre said that the audit performance
of municipalities was falling steadily in all nine provinces. Half the problem was that "people who are not qualified for the job but politically acceptable are being deployed to municipalities, resulting in continuing erosion of management and financial skills".
A study of governance in various African countries revealed that South Africa ranked 42nd out of 48 sub-Saharan countries for safety and security. The only countries ranked lower were Somalia, Sudan, the Democratic Republic of Congo, Chad, Liberia, and the Central African Republic.
In his book The Mbeki Legacy, published at the time of Mr Mbeki’s resignation in September 2008, Brian Pottinger, a former editor of the Sunday Times, said that "despite all the macro-economic successes and the credit-led economic boom of the early 2000s, the reality is the institutional and physical core of the country is withering away, and has been for a long time". He added,
Ideological overreach, political appropriation, the marginalising of key skills through affirmative action, skills flight abroad, a huge increase in demand, corruption and a remorselessly destructive form of public worker unionisation, obliterated the public sector as a vehicle for high-level service, particularly at the local government level.
It is clear that the disaster for which Mr Manuel blamed Mr Zuma in 2018, had been in the making long before that time. As minister of finance from 1996 to 2009 – during some of which time Mr Zuma was not in the Cabinet – Mr Manuel cannot but have been aware of this all along. And of course it continued, although to provide all the detail would necessitate a book of its own.
Suffice it to say that at the beginning of 2011 the director- general of human settlements and the National Homebuilders Registration Council reported that the cost of repairing badly- built low-cost housing provided by the state amounted to almost R59 billion. The following year, the Department of Water Affairs reported that 317 of 821 wastewater systems were in a critical condition.
Later in the year, the National Development Plan (NDP) warned that the country’s infrastructure was "crumbling" and needed "urgent" fixing. It also warned there was a "real risk that South Africa’s developmental agenda could fail because the state is incapable of implementing it". Among the reasons the NDP identified were political interference in senior appointments, the erosion of accountability, and "a deficit in skills and professionalism". Staff were often promoted too rapidly and thrown into management positions too quickly.
Affirmative action had helped to make the public service broadly representative. But the fact that affirmative action placed greater emphasis on "potential" made it particularly important that it was accompanied by "strong managerial and human- resource processes for selection, mentoring, training, and career development". The public service needed to be both "skilled and representative" and it also had to be "professionalised", with a "rigorous meritocratic process for recruitment".
Whereas the state "in the apartheid era" had played an active role in producing professionals, there was now a shortage of professional skills in government, particularly at the local level where municipalities required engineers "to build, maintain and operate infrastructure".
Reading between the lines, the NDP was suggesting that the pursuit of employment equity policies without adequate attention to skills and other job requirements had helped to undermine the effectiveness of the public service.
About a year later – looking beyond infrastructure – in August 2013, Adam Habib, vice chancellor and principal of the University of the Witwatersrand, identified affirmative action and cadre deployment as among the causes of the "malaise" in the public service. As black staff were recruited, white incumbents were allowed and even encouraged to leave. This "sabotaged the skills-transfer process". This was because "the very people who could have played the role of mentors were no longer in the public service, and black recruits, particularly newly qualified young graduates, were set up for failure as they entered". Professor Habib observed that "a public service manager would be rewarded for not appointing a white candidate to a vacancy, even if no black candidate was available, since employing a white candidate would compromise that manager’s transformation targets and annual bonus". One consequence was that the public service "is now saddled with employees who have severe deficiencies in their skill sets".
Looking at more recent reports, the 2016/2017 "state of safety report" of the Railway Safety Regulator showed that the fatality risk for passengers on South African trains was 25 times as high as the risk on trains in the European Union. Other reports showed that the unusually high number of derailments of freight trains was damaging exports of iron ore. Dysfunctional institutions include the Post Office, the Department of Home Affairs, the Independent Electoral Commission, the South African Revenue Service, and even the Thusong centres established to bring services closer to residents. Mr Ramaphosa said in Parliament in February 2018 that the failure of some government departments to pay suppliers within 30 days "has a devastating impact on small and medium-sized businesses".
A report published in June 2018 by the government’s Office of Health Standards Compliance said after carrying out 851 inspections of public hospitals and clinics across the country that an average of only 52% met the required standards. Only one province scored 60% for the availability of medicines. The score for cleanliness was below 50% in six of the nine provinces. Only five provinces scored above 50% for patient safety, clinical governance, and care. The highest score for public health was 49%, several provinces scoring below 40%. The highest score for operational management was 45%.
Commenting on its survey of state health facilities, the Office noted that leadership and management were poor or even lacking. This left "subordinates without the required level of supervision, knowledge, competency and support from senior staff, including clinical professionals". Where governance structures were in place, "there was no evidence that they provided oversight to ensure quality care, accountability, and good management".
In February 2018 a water specialist, Anthony Turton, pointed out that 80% of the country’s sewerage systems were dysfunctional. In the same month, the finance minister, Malusi Gigaba, said municipalities had underspent their infrastructure budgets by R53 billion in the previous year. In April 2018 his replacement as finance minister, Nhlanhla Nene, said that some of the country’s cities were "on the brink of collapse". The Department of Cooperative Governance and Traditional Affairs had earlier reported that 31% of the country’s municipalities were dysfunctional, and a further 31% almost dysfunctional. Another 31% were reasonably functional, and only 7% functioning well. A report by the Treasury published in May 2018 identified weak institutional capacity and shortage of skills as among the shortcomings of local government. Part of the problem was that senior officials aligned themselves with political factions, leading to instability, poor governance, and weak financial management.
The auditor-general, Kimi Makwetu, said that irregular spending by municipalities had risen from slightly above R16 billion in 2015/2016 to more than R28 billion the following year. He also reported that irregular and wasteful expenditure by national and provincial government entities in 2016/2017 amounted to R45 billion. Another problem identified by Mr Makwetu was that municipalities had a low rate of collection of money owed to them. There were far too many cases of "inappropriate placements and of skills not measuring up to requirements". The appointment of "unsuitable candidates" and a lack of skills were also "impediments to infrastructure development".
Although the Treasury identified weak institutional capacity as a problem in local government, some people thought the Treasury itself had the same problem. The president of Consulting Engineers South Africa, Neresh Pather, remarked in April 2018 that the Treasury lacked the skills and capacity to guide other organs of state in procurement and infrastructure spending. One result was that economic growth was being impeded by wasteful and inadequate spending on infrastructure.
In June 2018 the chief executive of Business Leadership South Africa, Bonang Mohale, pointed out that "state capture" had affected every single part of public administration, from national to provinces to municipalities. Public administration – which he described as "rotten to the core" – had been losing skills and competence and needed to be rebuilt.
"State capture" is usually associated with the undue influence over state institutions of the Gupta family and other associates of Jacob Zuma. The influence of the Guptas certainly spread far and wide, even to the South African Bureau of Standards. But "state capture" narrowly construed cannot explain the widespread dysfunctionality of local authorities, public clinics and hospitals, and a wide range of other institutions. Other explanations for the lack of both professionalism and managerial and other skills must be sought. One is the ANC’s own official policy of cadre deployment, where political loyalty rather than professionalism has been a key factor in making many appointments. Yet another is the application of employment equity targets based largely on race.
"Equal to the task"
Section 20 of the Employment Equity Act says that in determining whether an applicant is "suitably qualified" for a job, employers are not bound by "formal qualifications".
They may instead consider prior learning, relevant experience, or whether the person has the "capacity to acquire, within a reasonable time, the ability to do the job". However, even though these other factors are legally permissible as criteria, it is clear that many appointees have not been "suitably qualified". The warnings in the Barnard judgments that beneficiaries should be equal to the task at hand, and that the quality of public bodies should not be sacrificed to achieve representivity, has been to a large extent ignored. Indeed, by the time the warning was issued it was already too late – the horse had long since bolted.
This is clear from the fact that although the judgment was handed down in 2014, the signs of state failure had long since been apparent, as many of the above examples illustrate.
The exodus of whites with skills and experience and their replacement by black people without skills has been one of the problems. Sometimes, as in the Barnard case, posts have been left vacant rather than filled by whites if suitable blacks were not available. No doubt in earlier years many whites left the public sector rather than work under a black government. Later, however, pursuit of "transformation" appears to have become an increasingly important factor, especially after the Employment Equity Act of 1998 came into operation. While numerous reports refer to skills deficits without making any mention of transformation, some refer explicitly to this as a policy.
For example, Andrew Kenny, an engineer who worked at Eskom at one stage, wrote that soon after the ANC came to power in 1994, highly experienced and skilled white engineers, managers, and technicians were given generous packages to leave Eskom to "create space" for persons of the "correct skin colour and political affiliation". In 2004, Paul Roux, CEO of the Engineering Council of South Africa, said that employment equity was important in a sector that was traditionally white and male, but that putting experienced engineers out of jobs was leaving a mentorship gap. Many of the engineers required to manage big projects had left to work overseas. In 2008 the Institute for Security Studies reported, after a lengthy study of various parastatals, that a serious lack of leadership in senior positions was crippling service delivery plans. Among other things, the "pressure to transform" had seen the Land Bank losing many of its experienced employees to commercial banks.
In 2011, David Klatzow, an independent forensic consultant, observed that "aggressive pursuit" of affirmative action in which only blacks were appointed to government posts, had all but destroyed the country’s forensic laboratories. In 2014, Ivor Blumenthal, a business strategy consultant, said that the public sector was "cleansing" white employees. In the same year, Richard Sizani, acting chairman of the Public Service Commission, noted that some government departments were abusing affirmative action by not filling posts with whites when there were no blacks available. Although this "job reservation" was not part of affirmative action, it was happening and it was "illegal".
Also in 2014, Adrian Peters, vice president of the Engineering Council, said appointment of unskilled people in the public sector under the guise of "transformation and employment equity" was causing engineers to move to the private sector, resulting in "retardation of service delivery on the ground and overwhelmed and demoralised appointees". Anthony Turton of the University of the Free State pointed out that the Department of Water Affairs and Sanitation was leaving posts vacant rather than dilute its transformation targets. The following year, 2015, he remarked that one consequence of the shortage of engineering skills was that South Africa was losing a huge volume of water every year. The skills shortage, according to him, was an "induced" deficit directly related to the ruling party’s insistence on a rigid form of racial transformation. Were it not for this factor, the engineering skills available would suffice to meet present needs.
In the year after that, 2016, the CEO of the South African Institution of Civil Engineering, Manglin Pillay, explained that there was no shortage of highly qualified engineers in the private sector, but they had been "booted out" of the public sector. Moreover, government posts were being left vacant if there were no competent black people to fill them. In 2017, Mr Pillay noted that "the driving force in the public sector remains transformation at all costs". Along with "politicized cadre deployment", "the transformation imperative is crippling infrastructure and the service delivery that our government is supposed to be delivering". "It is time we called a spade a spade. We have been pussyfooting around this issue for a long time."
It is a pity that the Constitutional Court was not asked to address the question of service delivery in any detail. In his concurring judgment in the Barnard case, Justice van der Westhuizen maintained that "it is incorrect to assume that the ideals of representivity and efficiency are necessarily opposed". In practice, as shown above by the numerous examples of state inefficiency, efficiency has quite clearly been sacrificed to representivity, at enormous cost.
By March 2017 the South African Police Service had more or less reached its employment equity targets. In top management it had exceeded them, in that the target for whites was 9.6% but the white proportion of incumbents was 2.9%. Between 2000 and 2017 the police increased in number from 124 000 to almost 195 000. Measuring crime trends is more difficult than counting personnel. Crime figures published by Statistics South Africa
(Stats SA) are based on crimes reported to the police and then by the police. Many crimes are not reported, while there have been allegations that the police discourage reporting in order to make the figures look better than they are.
That said, police figures as published by Stats SA reveal a mixed picture. The total number of the 20 most serious crimes has increased from 2.02 million to 2.12 million (that is, by some 5%) since the ANC came to power. But the overall crime rate – crimes per hundred thousand of population – shows a decrease of 28%. Among the crimes whose rates have dropped are murder and rape. On the other hand robbery with aggravating circumstances has been on the increase. Looking at the past 15 years, annual reports published by the police show only a 1.5% percent increase in the number of arrests for all serious crimes, while the number of convictions as shown by the National Prosecuting Authority has dropped by 3.3%.
Apart from collating crimes as reported by the police, Stats SA conducts regular "victims of crime" surveys. These show a decrease in the number of households satisfied with policing in their area, from 64% in 2011 to 59% in 2015/2016. As between 2012 and 2016/2017, some 28% believed that violent crime had decreased while 39% thought it had increased. The statistician- general, Pali Lehohla, said last year that almost 70% of South Africans felt unsafe at night even though their experiences of crime had declined. "It is a very serious indictment that people have lost hope that the police can do something about crime," he said.
On the global competitive index published by the World Economic Forum, South Africa ranked towards or near the bottom of 137 countries in 2017-2018 in the section of the index assessing "institutions". For "business costs of crime and violence" our ranking was 133, and for "reliability of police services" it was 118.
Subordination of the colour-blind merit principle to racial requirements has also meant that other dangers were being overlooked. A warning about these was issued more than 20 years ago by Lawrence Schlemmer, a leading sociologist and political analyst and one-time president of the Institute of Race Relations (IRR). Writing in 1996 in Frontiers of Freedom, a publication of the IRR, Professor Schlemmer argued,
Any system of regulated occupational allocation very directly affects how people approach their job tasks. A person appointed on merit tends to see a new occupation as an opportunity to perform, whereas a person who enjoys an allocated appointment more easily sees the job as a privilege to be enjoyed. In other words, the values racial entitlement encourages are simply not compatible with the competitive demands of the global economy of today.
As we have seen in the above accounts of the pervasive deficiencies of the South African state, the replacement of merit with entitlement has had major consequences. Replacement
of qualified with less qualified people is only one of these. Entitlement has helped to create a climate in which public servants are not held accountable for their actions. This in turn has helped to foster corruption; and so has the ANC’s policy of using politically reliable "cadres" to capture centres of power. The interplay of these various factors is responsible for the fact that South Africa is almost entirely lacking in a professional public service.
Representivity benchmarks and the DCS case
The key to this case was the choice of benchmarks. Had provincial rather than national demographics been used, the DCS would have won. Even then, as discussed above, provincial demographics are a less satisfactory benchmark than local demographics and such factors as age, experience, and educational qualifications.
The Fedsas case
It was shown above that the Gauteng MEC for education saw the outcome of the case as a "victory for transformation". It remains to be seen how he will draw the boundaries of the new school feeder zones as ordered by the Constitutional Court. It also remains to be seen what national norms and standards will be drawn up for school capacity.
However, Koos Malan, professor of constitutional law at University of Pretoria, warned that the Constitutional Court had endorsed "centralisation in education administration, thus allowing [the MEC] to execute his overtly declared drive against Afrikaans medium schools in the province".
The 255 schools which provide tuition in Afrikaans, either as sole language or along with another language, constitute some 12% of all schools in Gauteng. Compelling these schools to admit additional black pupils would do little to improve the quality of education offered in the other 1 828 schools in the province.
Afrikaans cultural rights and the Tshwane and UFS judgments
In his concurring judgment in the Barnard case, Justice van der Westhuizen said that Ms Barnard might have been innocent of participating in the apartheid past, but that she might still have benefited as a member of a racially privileged group. "The innocent," he added, "often have to account for sins committed before they were born." This thinking helps to explain the "essential context" referred to by the chief justice in the Tshwane and UFS cases. In the former, the supposed constitutional "duty to transform" away from colonialism and apartheid was held to be more important than the cultural rights of Afrikaners, even though the chief justice himself said that "all racial groups deserve to have their culture, heritage, history, heroes and heroines respected and honoured by all". Cultural rights, which the Constitution supposedly guarantees, were held to be subordinate to a "duty" which is actually not specified in the Constitution.
The Constitution does, however, deal with "access to courts". Section 34 thus specifies, "Everyone has the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum". Section 165 (2) states that the courts must apply the law "impartially and without fear, favour or prejudice". Application of the spirit of these two sections of the Constitution should have precluded the chief justice from characterising AfriForum’s case as an attempt to "advance illegitimate sectarian interests through legal strategems".
The Tshwane judgment referred to "stubborn colonialism" and the UFS one to "crimes against humanity". Neither judgment explained why current and future generations of Afrikaners should be expected to pay the penalty for any of this. It is widely accepted that it is necessary to protect free speech even though one may profoundly disagree with the views expressed. So also, the need to protect the rights of cultural minorities should be recognised even if one despises the people they wish to honour, and even if one deplores the fact that their language was one of the official languages used by the previous government. Failure to do so, and to criticise them for seeking to defend their rights in the courts, betray an intolerance inimical to the values of the Constitution.
"Transformation" can mean many different things. In its People’s Guide to the budget tabled in 2017, the Treasury said that the objective of "radical economic transformation" was not simply to transfer ownership or "hand out tenders", but "to build a new economic momentum, mobilise new investments, create new jobs and create new resources to support social change".
In practice, however, the word is widely used to mean something much narrower, which is "racial transformation". Moreover, the Constitutional Court has not been alone in proclaiming that "transformation" of this kind is an "imperative". Even the FW de Klerk Foundation has stated that transformation is "undoubtedly" a key constitutional requirement, although it has also warned that the Constitution "is not solely concerned with transformation".
Companies in every sector regularly declare their commitment to transformation, by which they invariably mean more black ownership, more black economic empowerment, and more efforts to bring about employment equity. Financial journalists criticise the financial sector’s "parlous transformation record".
They also complain that the mining industry "simply has not transformed deeply or extensively or proactively enough to effect meaningful deracialisation". Ratings agencies say South Africa still needs "significant transformation".
Therefore, while transformation forms part of the ANC’s proclaimed national democratic revolution, the idea enjoys wider support. It has few critics in the media, and few among business leaders. Even such criticisms as are voiced are prefaced with the declaration that "transformation is of course an imperative," before going on to state that "we need to do a better job with implementation". It is rare for business leaders to speak as frankly as did Steve Phiri, CEO of Royal Bafokeng Platinum, when he said last year with regard to the mining charter that "you cannot transform at the expense of the downfall of the economy of the country. But this is what is happening".
We have seen in this paper how the supposed constitutional imperative of transformation has been used to dilute property rights, to justify turning affirmative action into the application of racial targets, to substitute "the interests of justice" for the common law, and to detract from language and other cultural rights. Several of the judges of the Constitutional Court explicitly recognised what one of them described as tension between representivity and efficiency in service delivery. But they underestimated the damage that the pursuit of the former has done to the latter by helping to undermine the public sector.
While transformation in the pursuit of employment equity has overridden the rights to equality of racial minorities, it has also helped to undermine other constitutional rights to the detriment of a great many more people. These rights, set out in the Bill of Rights, include the right to life, the right to dignity, the right to security of the person, the right of access to housing and health care, and the right to a healthy environment. Enjoyment of these rights depends on numerous factors, of course, but among them is "effective and efficient performance within the public service" as stipulated by Section 196 of the Constitution. Section 195 requires public administration to be "development-oriented" and to use resources efficiently, economically, and effectively.
Yet for at least a decade, as we have seen above, the public service has confronted South Africans with crumbling infrastructure, dysfunctional municipalities, unreliable water supply, malfunctioning sewerage systems, poor policing, dangerous rail services, and dirty hospitals. The dysfunctional state has undermined numerous provisions of the Bill of Rights. The damage inflicted upon Eskom has helped to undermine economic growth and therefore the ability of the economy to generate jobs. The damage inflicted upon SAA and other state- owned enterprises has necessitated financial bailouts, eating into funds that might otherwise have been allocated to service delivery. As always, the poor have suffered the most, as they are more dependent on public services than people able to provide for themselves and so to insulate themselves at least partially from some of the problems of the dysfunctional state.
The manner in which the government has run public administration has clearly regarded the pursuit of racial "representation" as more important than the other objectives stipulated by the Constitution. The Constitutional Court has echoed this mistake in its view that racial "transformation" is the overriding imperative of the Constitution.
How far the pursuit of employment equity in the form of racial demographics is to blame for the dysfunctional public sector, is difficult to assess. Militant and sometimes violent trade unions have no doubt played a part. So has the absence of penalties for incompetence or dishonesty. As for other factors, it is easier to blame obvious wrongs such as corruption or "state capture" than to admit that cadre deployment and/or the pursuit of racial demographics might have played a role. Cadre deployment, after all, is the official policy of the ANC, while the pursuit of racial demographics is sanctioned by law and endorsed by the Constitutional Court. Criticising employment equity, moreover, risks attracting the accusation that one is being a "racist".
Yet the policies of cadre deployment and employment equity predate the worst excesses of "state capture", while the slide of many organs of state into dysfunctionality predates the advent of the Zuma presidency. It is therefore reasonable to conclude that the implementation of cadre deployment and racial demographics are probably the major causes of dysfunctionality.
Speaking in Parliament in July 2014, Collins Chabane, newly appointed as minister of public service and administration, said the public service needed to be "reinvented" and "transformed" into "an effective service-delivery machine." It had to be "effective, efficient and responsive", as well as "disciplined, people-centred, and professional" and staffed with "industrious public servants" of "high calibre". Even though it has been endorsed by the Constitutional Court, transformation which focuses less on these values than on race has helped to produce a very different kind of public service.
* John Kane-Berman is a policy fellow at the Institute of Race Relations (IRR) and a former chief executive of the IRR.
Issued by AfriForum, 8 October 2018
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