This Bill is a pernicious piece of social engineering - Tony Leon

Speech by Democratic Party leader in opposition to the Employment Equity Bill, National Assembly, August 20 1998


The Employment Equity Bill before Parliament today is a pernicious piece of social engineering: pious in intention but destructive in effect. lt makes affirmative action compulsory for all businesses employing more than fifty people and for every enterprise employing fewer than 50 people meeting certain minimum turnover thresholds. lt allows for no blanket exemptions: lt goes further than the Canadian legislation on which it is said to be based. lt ignores economic reality. lt does nothing for the poor, the marginalised, the rural masses in whose name the ANC governs - but whose real interests they betray with this Bill.

The Bill obliges companies to make their workforce "representative". This term is ominously ill-defined. But could, as the Bill's explanatory memorandum implies, come to more than "reflecting the demographics of the country". Compliance with the Bill will be bureaucratically monitored and fines for non-compliance start at R500 000.

This Bill sets its face against the vision of President Mandela, who back in October 1991, defined affirmative action thus:

"The primary aims of affirmative action must be to redress the imbalances created by apartheid. We are not... asking for hand-outs for anyone nor are we saying that just as a white skin was a passport to privilege in the past, so a black skin should be the basis of privilege in the future. Nor it our aim to do away with qualifications. What we are against is not the upholding of standards as such but the sustaining of barriers to the attainment of standards; the special measures that we envisage to overcome the legacy of past discrimination are not intended  to  ensure  the  advancement  of unqualified persons. but to see to it that those who have been denied access to qualifications in the past can become qualified  now. and that those who have been qualified all along but overlooked because of past discrimination, are at last qiven their due. The first point to be made is that affirmative action must be rooted in the principles of justice and equality."

But this Bill is doing the exact opposite of what President Mandela proposed: lt uses race as a proxy to advancement. lt is a passport to privilege. lt is not rooted in the principles of justice and equality. Mr Thabo Mbeki in a memorable speech on the passage of our Constitution used the language of inclusivity when he spoke of whites falling under his umbrella phrase - "I am an African". What has happened to these fine words in the last two years? Have they simply disappeared like a puff of smoke from one of his ubiquitous pipes?

ls there any other explanation for the inclusion of the designated groups advantaged by this Bill at the exclusion of all others, regardless of their circumstances, their own history and pattern of discrimination and their own life chances and expectations?

lt is said by the proponents of this legislation that its purpose is redress for the most disadvantaged by past racial policies. But the only beneficiaries of this Bill will in fact be the already educated and upwardly mobile managerial class.

Because this Bill is, par excellence, the triumph of the grievance lobby, the politicians of the special interests, the special pleaders and the "something for nothing" brigade. The point of this Bill is to achieve demographic representivity and therefore the extent to which you reflect the demographics of the country in your own workforce, will determine your compliance with the Bill. But it will do nothing to advance the marginalised, the poor and the dispossessed. lt is said by those who should know better, that the only opponents of this Bill are those who wish to perpetuate apartheid privilege, those who speak on behalf of a tiny minority; those who are the sultans of the status quo.

I would like you to consider the following words of an opponent of this Bill:-

"Transformation has become a very dangerous concept. it is being used to label almost anything that the government does not like as untransformed. lt reinstates racial classification in the name of employment equity. This new Bill, when it is introduced, will bring about an entirely new system of bureaucratic meddling in the affairs of private business.

Most blacks have been fed a lot of nonsense about this new bill being necessary to overcome the legacy of race discrimination. But then let us have tougher laws against race discrimination rather than some huge national project to meddle and interfere in labour market decisions of private companies.

You may say that I am a traitor to the cause of black occupational occupational advancement. Nonsense! I speak to businessmen and women every day and all of them are as anxious as they could possibly be to appoint more black staff in senior positions. Their company images depend on it today. They are prepared to poach staff from other companies and waste money on token appointments because of this anxiety. The reason why black occupational advancement is not progressing more rapidly is no longer mainly because of racism but because of the shortage of trained and skilled black recruits.

lf the government was honest it would redouble its efforts in the field of vocational training. lt would try to remove bottlenecks. lt would facilitate new training institutions with imaginative policies. lt does not have to produce new racist laws in reverse. This is the danger of using a word like

'transformation' too loosely."

Yet, these sentiments were uttered, not by a leader of the Democratic Party, nor by some "fat cat" businessman, nor by some white revanchinist. No! These are the exact words of the National Chairman of the lnkatha Freedom Party and the Premier of KwaZulu-Natal, Dr Ben Ngubane.

lt is stated, by the Bill's supporters, that we are enacting the constitutional imperative to outlaw discrimination and to advance affirmative action. But this Bill sets its face against the spirit of our own Constitution. lndeed, should this Bill be approved I will be writing to the President of the Republic requesting him not to promulgate this legislation because it goes against the wording of Section 9(2) of the Constitution, which talks of any "persons or categories of persons disadvantaged by unfair discrimination".

I submit, as the rejected DP proposal to the portfolio committee submitted, that this is perfectly adequate for achieving redress without re-dividing South Africa's labour market into opposing racial and other groups. Group-based thinking as proposed in the Bill formed the cornerstone of apartheid and we have a moral, if not a political, duty to bear witness against its re-introduction in the guise of getting rid of apartheid. Using this Bill in its present form as an instrument of legalised affirmative action is dangerous: lt is like a person who lights a match to inspect a firework.

Although we oppose the affirmative action provisions as contained in the Bill, we do support the elimination of unfair discrimination an the listed grounds. In particular, we do support the underlying philosophy behind the comprehensive non­ discrimination clause which now prohibits discrimination on three additional grounds, namely family responsibility, HIV status and political opinion. By including persons with HIV, we wish to affirm the rights of such persons to be treated fairly, both in the workplace and in society in general.

This Bill codifies the politics of envy. lt legalises the intrusiveness of a state bureaucracy to determine a range of matters which properly do not belang to any state or any government - it belongs to the market forces.

My views an the unconstitutionality of this Bill are reinforced by the words of the Hon Mr Justice Goldstone in the case of The President of the Republic of South Africa and another vs Hugo. 1997 (6] BCLR 708 [CCJ at 728 G.

"The prohibition of unfair discrimination in the (interim) Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups. lt seeks more than that. At the heart of the prohibition of unfair discrimination lies the recognition that the purpose of our new constitution and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups.

But assume my legal, political and constitutional arguments are invalid, what are the economic consequences of this Bill? We were recently enjoined in this Parliament by no less an authority than Minister of Finance Manuel that "we have to attract foreign savings ...the bench marks used to assess South Africa as an investment centre are the same across all countries."

Yet, even before the passage of this Bill, a survey of 23 African nations by the World Economic Forum concluded "South Africa has the least flexible hiring practices and working hours of the 23 African countries surveyed". But instead of listening to our Minister of Finance, or improving our situation in the light of the survey, we intend to go against the international economic grain by making our labour market even more calcified and our country an even less attractive investment destination than it already is.

During the course of last week I met with two major organisations representing the unemployed, namely, the Unemployed Masses of South Africa (UMSA) and Malumalela, a social movement for the unemployed. They confirmed to me what I had long suspected, that at no point and at no stage was their opinion sought or their counsel heard on this Bill. Their members are desperate for jobs but they have no lobby and no voice other than the DP to speak on their behalf.

So yes, this Bill will create an entire new industry for lawyers, special pleaders and a legal haven for disgruntled and unsuccessful applicants for jobs. Yes, it is quite true that many businesses will either collapse under the weight of the enforcement mechanisms, or simply won't bother to implement the provisions at all. But it is time that sensible South Africans drew a line in the sand at this disastrous social engineering of government and the interests they represent and started standing up for real interests; the interests of the poor, the marginalized and the dispossessed whom this bill will serve poorly if at all.

Let the Minister of Labour come to the bar of Parliament and tell us whether he is satisfied that the formal sector of South Africa is shedding nearly 100 000 jobs per year and let's ask him to explain to the people why in the face of this reality we are enacting legislation which will only hasten and escalate the process of down-sizing, job shedding, skills-emigration and economic recession.

Issued by the Democratic Party, August 20 1998

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