almost impossible, given our labour regulation laws. Try to coax top black talent from the private sector into universities, and you will find the comrades laughing at you. Becoming more inclusive, especially with top academic talent, is very difficult and the [committee’s] report is completely unhelpful in getting us there apart from bringing out the monitoring police to blame and shame those who try.’82
Habib also criticised the committee’s report, saying: ‘There’s a kind of craziness that circulates among political figures and other people who don’t think carefully about these things, that there should be a direct match between the demographics of society and the diversity of representation at a university. You’ll never get a direct match. I’m stunned at how often people think you can, but if you go to any leading university in the world, such as Harvard or Oxford, you won’t see them representing the demographics of their society to the tee, because if they did, they would not be the kind of global institutions they are.’83
Also controversial are the extraordinary powers that have been given to Nzimande under the Higher Education and Training Amendment Act of 2012. Before the amendments were adopted, the minister already had limited power to intervene in universities where there was financial maladministration, or if a university council expressly requested this. Under the 2012 Act, by contrast, the minister is empowered to issue directives to a university council if, in his opinion, the council has acted ‘unfairly or in a discriminatory on inequitable way towards a person to whom it owes a duty’.
Comments Jeremy Gauntlett SC: ‘If such a council fails to comply with any such ministerial directive, whatever the explanation and however limited either the directive by the minister or the default by the council, the minister must replace the council with an administrator with extensive powers. The council, moreover, is thereby automatically dissolved.’84
Gauntlett regards the powers given to the minister as unconstitutional. First, he says, they are too vague and discretionary to meet the requirements of the rule of law. Second, they infringe the guarantee of university autonomy in the Bill of Rights by allowing the minister to disregard all the essential attributes of academic freedom. These attributes (as famously defined by Judge Felix Frankfurter of the United States Supreme Court) include the rights of every university ‘to determine for itself on academic grounds who may teach, what may be taught, how it should be taught, and who may be admitted to study’.85
However, Nzimande has brushed aside such concerns, saying the amendments are needed to counter corruption and maladministration – and that he refuses to be cowed by critics who charge him with ‘violating university autonomy’. According to his spokesman, Vuyelwa Qinga: ‘Institutional autonomy can never be an end in itself if you are a public institution that is subject to the national imperatives of a developmental state like ours and is sustained through public funds.’86
The extent of Nzimande’s new powers may soon be put to the test in the context of UCT’s revised admissions policy. Though this is unlikely to reduce black representation in its 2016 admissions, the Students’ Representative Council has reacted angrily, saying the new policy ‘denies the link between race and disadvantage … and seeks to maintain the status quo’. According to the UCT Progressive Youth Alliance (which includes the ANC Youth League, the Young Communist League of South Africa and the Congress of South African Students), the admissions policy has been changed to ‘keep the university white … and please white donors and affluent white families whose children don’t get offers at the university’. The ANC Youth League in the Western Cape says the shift in policy ‘undermines the spirit of our Constitution’. It wants Nzimande to ‘be able to set transformational goals for universities and to lead interventions when these goals are consistently not met, as in the case of UCT’. In addition, a civil society organisation called the Higher Education Transformation Network has urged ‘the government to act decisively to stop the implementation of this sinister policy’, which the network describes as ‘the worst form of racism’ and an attempt to ‘punish the historically disadvantaged’.87
If Nzimande decides that the Council of UCT has acted ‘unfairly’ in adopting the new policy, he is fully authorised under the amendments to dissolve the council and replace it with an administrator appointed by him.
Nzimande may also be planning to accelerate affirmative action in admissions via a new centralised system to be implemented in 2015. Once this takes effect, students will send their applications to one central point, from which universities will supposedly be able to make their own choice as to which students they want. According to Nzimande, universities will thus retain their autonomy in student selection. However, he stresses, universities will not be allowed to ‘hide behind their autonomy and use it to exclude students who want to study at these institutions … The universities will retain their right to choose students, but they must do that within the transformation framework. We must ensure that autonomy is not vulgarised and used as exclusion.’88
Nzimande explains his increased powers as vital to the racial transformation of the country’s universities. However, this obscures the fact that both the ANC and the South African Communist Party (of which he is the general secretary) have long wanted to increase their control over universities because they see these as a key ‘lever of power’. In 1999, for instance, an article in the ANC journal Umrabulo urged the ruling party to strengthen its policies of deploying cadres, or party loyalists, to universities and similar institutions to help bring them under the ANC’s wing. It also called on the ANC to give greater priority to ‘transforming … key ideological centres, such as universities, the privately-owned media, [and] research and policy institutes’. This, the article said, would have the advantages of increasing ‘political cohesion’ and limiting ‘public debate’ about the transformation process.
In 2007 the Strategy and Tactics document adopted by the ANC at its Polokwane national conference had a similar message. It began by stressing the need for the ANC to advance the national democratic revolution by deploying its cadres to all centres of power. In addition, it went on, the ANC should use its cadres to influence ‘the intellectual and ideological’ terrain and ‘promote progressive traditions within … universities and the media’. In 2012 the Mangaung national conference reaffirmed these goals.89
Initiatives supposedly aimed at redress provide a useful fig leaf for the ruling party’s determination to control autonomous universities. An undiluted power grab would be likely to attract domestic and international opprobrium. By contrast, state efforts to help ‘normalise’ the demographic profile of university staff and students are likely to win broad endorsement – even if the effect is to leave universities with only the outer shell of the independence they once enjoyed.
3. Affirmative Action in Employment
For some years before 1994 both government departments and private sector employers were already appointing more black managers and putting significant efforts into a ‘soft’ form of affirmative action based mainly on training and mentoring. This was prompted partly by the skills shortage among whites and partly by the imminent transition to black majority rule.
This ‘soft’ form of affirmative action, as noted in Chapter 1, focuses on ‘inputs’ (training and mentoring to improve the skills of the disadvantaged) rather than ‘outputs’ (racial targets or quotas). An inputs-based approach to affirmative action is also what is envisaged under the equality clause (Section 9) of the 1996 Constitution, which generally requires strict adherence to equality before the law but also authorises appropriate remedial measures to ‘protect or advance those disadvantaged by unfair discrimination’.1
However, within little more than a year of the 1996 Constitution entering into force, the ANC put forward an Employment Equity Bill that focused on racial targets, rather than on increasing skills. It also required the attainment, over time, of demographic representivity at all levels of the workplace.
The Employment Equity Act of 1998
The
