a right and a theory but equality as a fact and equality as a result.2
To help provide such opportunity, Johnson called for ‘an equal chance to learn’, for ‘decent homes in decent surroundings’, for ‘better care for the sick’, and for many more jobs to ‘bring the income which permits a man to provide for his family’. He also identified, as perhaps the ‘most important’ of the complex barriers to upward mobility, ‘the breakdown of the family structure’, which at the time saw ‘less than half’ of all African-Americans growing up ‘with both of their parents’. Added Johnson: ‘The family is the cornerstone of our society. More than any other force, it shapes the attitude, the hopes, the ambitions, and the values of the child. And when the family collapses it is the children that are usually damaged. When it happens on a massive scale, the community itself is crippled. So, unless we work to strengthen the family, to create conditions under which most parents will stay together, all the rest: schools, and playgrounds and public assistance, and private concern, will never be enough to cut completely the circle of despair and deprivation.’3
Though Johnson’s words of some 30 years earlier may not have been expressly cited in the debate on affirmative action in South Africa in the early 1990s, his view that freedom had to be supplemented by opportunity resonated deeply with many people in the country. To buttress this perspective still further, the ANC in 1994 put forward a compelling case for affirmative action in employment, business, and land ownership.
Affirmative action, said the ANC, would ‘mainly’ take the form of correcting past injustice through the application of ‘normal and non-controversial principles of good government’. However, there would also have to be special measures to bar racial discrimination, bring about ‘balance in the armed forces, the police, and the civil service’ and ensure that the workforce as a whole became ‘representative of the talents and skills of the whole population’.4
At the same time, said the ANC, black economic empowerment (BEE) would be needed to help remove ‘all the obstacles to the development of black entrepreneurial capacity’ and unleash ‘the full potential of all South Africans to contribute to wealth creation’. Affirmative action would also be required to rectify land ownership, strengthen the property rights of all, and make land available for housing as well as to those who wished to farm.5
While recommending these interventions, the ANC acknowledged that affirmative action could harm as well as help, depending on the way that it was implemented. Said the organisation: ‘If well handled, affirmative action will help bind the nation together and produce benefits for everyone. If badly managed, we will simply redistribute resentment, damage the economy, and destroy social peace.’6
In an additional passage that is generally overlooked, the ANC signalled that it saw affirmative action as an alternative to simply ‘confiscating the spoils of apartheid and sharing them out amongst … the dispossessed’. This latter option would have ‘the immediate attraction of correcting historical injustice’, the party said, but it ‘could not realistically be advanced’ against the background of the negotiated political transition. In addition, in the current circumstances, it would lead to ‘capital flight, the destruction of the economy, and international isolation’.7
In retrospect, these words provide an insight into the ANC’s ultimate objectives. At the time, however, they attracted little public coverage or comment. Instead, the parties to the constitutional talks pressed on with the immediate need – the drafting of provisions to bar racial discrimination while also authorising measures aimed at creating opportunity for the disadvantaged. Three important clauses, in particular, were drawn up and included in the 1996 Constitution in order to promote these goals.
Relevant constitutional provisions
The first of these clauses is a founding provision of the new order, which explicitly identifies ‘non-racialism’ as a core value of post-apartheid South Africa. So strong is the country’s commitment to this principle that this clause may not be amended except by a 75% parliamentary majority.
The second key provision is the equality clause (Section 9), which expressly requires equality before the law; bars discrimination on racial (and other) grounds; and requires those who nevertheless discriminate on racial grounds to prove the fairness of their conduct. As an exception to these general rules, the equality clause incorporates a sub-section authorising the taking of ‘legislative and other measures designed to protect or advance persons … disadvantaged by unfair discrimination’.8
The third key clause (Section 195 of the Constitution) calls for a ‘public administration that is broadly representative of the South African people’. However, it also makes it clear that the pursuit of broad representivity must not be allowed to trump other needs. The clause thus stresses the importance of employment practices ‘based on ability, objectivity, and fairness’. It also requires the public service to ensure the ‘efficient, economic and effective use of resources’.9
Another founding clause – which also needs a 75% majority to change – reinforces the binding force of these provisions by guaranteeing the ‘supremacy of the Constitution’ and adding: ‘The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.’
By contrast, the Constitution makes no mention of racial targets, or the ANC’s goal of demographic representivity. This last is a shorthand term for the idea that every group should fan out into the workforce, and every other sphere of society, in strict accordance with its share of the national population. But this supposed demographic ‘norm’ does not in fact exist in any heterogeneous society – as research by US expert in affirmative action Professor Thomas Sowell and other international scholars has repeatedly shown. Moreover, as these scholars note, in assessing what degree of representation is appropriate for any group, relevant criteria such as age, education, and experience must be factored in, not overlooked.
The Constitution is thus firm in its endorsement of non-racialism, equality before the law, and the importance of an efficient and effective public service. Where it authorises affirmative action, it does so for the specific purposes of ‘protecting or advancing’ the unfairly disadvantaged, or making the public service more ‘broadly representative’ (provided, in this instance, that this is not at the expense of ability, fairness, effectiveness, and efficiency). The Constitution also makes it clear that these affirmative action provisions are exceptions to its general principles of non-racialism and equality before the law. Hence, like all derogations from general rule, these exceptions must be interpreted narrowly, so as to limit the extent to which they detract from the wider principles in issue.
In addition, in discussions on how affirmative action should in practice be implemented, it was generally agreed by all parties to the talks that the most effective steps would lie in:
■ providing excellent education,
■ making major improvements to living conditions,
■ quickening the pace of economic growth,
■ encouraging direct investment, and
■ creating conditions conducive to the generation of very many more jobs.
On this basis, millions of black South Africans currently mired in poverty would gain the opportunity to reach and scale the ladder to economic success.
The ANC’s other objectives
Behind the scenes, however, the ANC had other objectives in mind. In particular, it had long been committed to a national democratic revolution (NDR) aimed at eliminating existing property relations and ensuring demographic representivity in every sphere of society. In addition,
