South Africa and Affirmative Action: The Legality of the Employment Equity Act under the International Covenant on Civil and Political Rights

AuthorBrian Farrell
PositionBA, St. Ambrose University (Iowa); Juris Doctorate, University of Iowa; Member of the Iowa State Bar Association
Pages202-223
SOUTH
AFRICA
AND
AFFIRMATIVE
ACTION
THE
LEGALITY
OF
THE
EMPLOYMENT
EQUITY
ACT
UNDER
THE
INTERNATIONAL
COVENANT
ON
CIVIL
AND
POLITICAL
RIGHTS
BRIAN
FARRELL*
Affirmative
action'
is
a
contentious
issue
in
nearly
any
context;
however,
the
discussion
of
what
constitutes
affirmative
action
and
the
appropriateness
of
its
use
are
even
more
complicated
in
South
Africa
due
to
its
apartheid past
and
the
status
of
the
country's
historically
disadvantaged
non-white
population
as
a
numerical
majority.
The
difficulty
of
using
the
'minority'
label
and the
nature
of
the post-apartheid
power
structure make
South
Africa
a
unique
forum
to
examine
the
issue
of
affirmative action,
focusing
on
the
legitimacy
of
its
use
under
international law.
Part
I
of
this paper
will
begin
by
providing
necessary historical
background
in
apartheid
and
post-apartheid
South
Africa.
Part
II
will
examine
the
justifications
for
using
affirmative
action
and
explain
affirmative action legislation
enacted
in
South
Africa.
Part
III
will
introduce
international
guarantees
of
equal
protection
and
raise legal
arguments
concerning
the
South
African
legislation.
Finally,
conclusions
will
be
drawn
as
to
the
legality
of
the
legislation.
I.
The South
African
Context
The
colonial
domination
of
the
territory
now
encompassing
South Africa
began
with
the arrival
of
the
Dutch
East
India Company
at the
Cape
of
Good Hope
in
1652.2
Dutch
and
other
European
settlers
in
the Cape
slowly
developed
a
cultural
identity known
as
Afrikaner,
with
its
own
.
BA, St.
Ambrose University (Iowa); Juris Doctorate,
University
of
Iowa;
Member
of
the
Iowa
State
Bar Association.
LL.M
candidate
(International
Human
Rights),
N.U.I
Galway.
1
The
term
'affirmative
action'
will
be
used
in
this
paper;
however, the
terms
'positive
discrimination',
'reverse discrimination'
and
'special measures'
are
also
used
to
describe
the
concept.
2
Keegan,
Colonial
South
Africa
and
the
Origins
of
the
Racial
Order
(Leicester University
Press,
1996),
at
15.
0
2002
Brian
Farrell and
Dublin
University
Law
Society
South
Africa
and
Affirmative Action
language,
Afrikaans,
3
and
slavery
was
introduced
to the
colony.
Occupation
of
the
Cape
colonies
by
the
British
began
in
1795,
4
and
although the
British Parliament
abolished
slavery
in the
Cape
in
1834,
it
did not
drastically
improve
the
situation
of
those emancipated,
as
the
white
power
structure
remained
firmly
intact.
5
Afrikaners
gained
some
measure
of
political power
when the
British
government
authorised
a
South African parliament
in
1853,
and
strong
Afrikaner nationalism
developed
in
the latter
part
of
the
nineteenth
century.
6
Segregation
and
inequality continued
as
blacks were
utilised
as
low-paid
labourers
in
gold
and
diamond
mining
as
well
as
agriculture.
7
Although
still
a part
of
the
British
Empire,
the
Union
of
South
Africa, established
in 1910,
was
politically
dominated
by
the
Afrikaner
population
8
and
its
parliamentary
system
did
not
afford
any
significant
protection
of
individual rights.
9
The first
attempt
at
legislating
segregation
occurred
in
1913
when
the
government, controlled
by
the
Afrikaner-led
South African
Party
(SAP)
enacted
the
Native
Lands
Act,
which allocated
the
country's
land,
giving
93%
to
the white
population
and
making
it
illegal
for
non-servant
blacks
to
be on
white lands.
10
This was followed
by
the
Native
Urban
Areas Act
of
1923,
which
established
separate
revenue
accounts
and
allowed
the
government to
exclude blacks
from
white-funded
amenities,"
and
the
Black
Consolidation Act
of
1945,
which
prohibited
blacks
from
staying
in
white
areas
for
over
72
hours.
2
Afrikaner
nationalism
triumphed
in
1948
when
the
National Party
(NP)
gained
control
of
the
South African Parliament
on
a
platform
of
apartheid,
or
strict racial
segregation
3
based
on separate development
of
the
races.
14
As
Afrikaner
nationalism
developed,
Afrikaner political
parties
became
progressively
more isolated
from
moderate
influences
such
3
Fields,
"In
Search
of
Democracy:
Reconciling
Majority
Rule,
Minority Rights,
and
Group
Rights
in
South
Africa
and
the
United States"
(1996)
16
BC
Third
World
LI65,
at
90.
4
Attwell,
South
Africa:
Background
to
the
Crisis
(Sidgwick
and
Jackson,
1984),
at
25-26. The
British
presence
in
South
Africa
was an
unexpected
result
of
the
expulsion
of
William
of
Orange
from
the Netherlands
to
Britain.
5
Berman,
"South
Africa:
A
Study
of
Apartheid
Law
and
Its
Enforcement"
(1991)
2
Touro
J
Transnat'l
L 1,
at
6.
6
Thompson,
A
History
of
South
Africa
(Yale
University
Press,
1990),
64,
at
135-36.
Afrikaner
nationalism
grew
into a desire
for
independence
from
Britain
and
in
1899
erupted
into
the
Boer
War,
which
ended
in
1902
with
British
victory over
the
Afrikaner republics. See
also
at
141-143.
7
Lemon,
Apartheid.
A
Geography
of
Separation
(Saxon
House,
1976), at
30.
9
Attwell,
op.
cit.,
at 62.
9
Fields,
loc.
cit.,
at
91-92.
South
African
law
combined
Roman,
Dutch, and
English
legal
traditions.
'°Attwell,
op.
cit.,
at 64-65.
"Dvorin,
Racial
Separation
in
South
Africa
(University
of
Chicago
Press,
1952),
at 29.
Bindman,
South
Africa: Human
Rights
and
the
Rule
of
Law
(Pinter,
1988),
at
12.
13
Drobis Meisel,
South
Africa
at
the
Crossroads
(Millbrook
Press,
1994),
at
8.
14
Giliomee
and
Schlemmer,
From
Apartheid
to
Nation-Building
(Oxford
University Press,
1989),
at
35.
2002]

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT