Affirmative action as a defense against discrimination

Abstract :

In South Africa discrimination, particularly but not exclusively on the basis of race became a lifestyle and was entrenched by the pre-democratic government. In the labour market this was no more clearly visible than in the job reservation policies and the discrepancies in wages employees were paid based on their race and gender.

The position in the labour market would subsequently change with the implementation of the Wiehahn Commission recommendations in the late 1970’s which brought to the fore the drive to prohibit differential treatment of workers based on their individual characteristics. The main instruments in this drive were the introduction of an unfair labour practice definition and the Industrial Court as the guardian of the unfair labour practice definition.

In the early 1990’s the stage had been set by the Industrial Court for the equal treatment of all workers and the removal of discriminatory treatment and practices. The question however remained how to address the imbalances of the past decades and how to speed up true equality. So the concept of affirmative action enters the fray. The concept was crafted and shaped by the legislator starting with the interim Constitution Act 200 of 1993 up to the latest development of the Employment Equity Act 55 of 1998. This was done under the watch full gaze of firstly the Industrial Court and later the Labour Court.

The concept clearly brings back an old evil, discrimination, but for indisputably valid reasons. It is furthermore clear that unlike the discriminatory practices in the pre-1993 the concept of affirmative action will be of limited duration as once it has fulfilled its intended aim it will lose justification for it’s continues application. The conclusion is reached however that in order to effect substantive equality, it is necessary to retain affirmative action presently. By evaluating recent case law this treatise shows that affirmative action is however not an absolute defence in unfair discrimination cases.



Author Kotz’e M
Date Accessioned 2016-09-22T13:19:59Z
Date Available 2016-09-22T13:19:59Z
Date Created
Identifier URL 2005
Language English
Subject Labour law
Subject 2 Labour law
Alternative Title
Degree Type Masters degree
Degree Description  MA