This case in which the Constitutional Court – in favour of the South African Police Service (SAPS) – upheld an appeal against the decision of the Supreme Court of Appeal, provided much-needed further clarity on the interpretation and application of section 9 of the Constitution. Although the judgment certainly warrants proper analysis and further discussion, it is important to note at this point that Court reaffirmed the transformational nature of the Constitution and provided additional clarification on the application of restitutional measures.
Restorative measures, as required by the Constitution, must be balanced against other rights including the right to dignity and equality. As such, such measures “must not unduly invade the human dignity of those affected by them, if we are truly to achieve a non-racial, non-sexist and socially inclusive society“. The Court noted that steps taken to promote substantive equality may not, in favour of one group of previously disadvantaged people, exclude those who were themselves previously disadvantaged.
The ultimate goal of remedial measures in terms of the Constitution, are not to be an end in themselves, but to “urge us on towards a more equal and fair society that hopefully is non-racial, non-sexist and socially inclusive.” Also, these measures are, according to the Court, “not meant to be punitive nor retaliatory“.
Apart from remedial measures which must be implemented in a way that advances the position of people who have suffered past discrimination, the Court noted that such measures alone will not ensure social equity: “A socially inclusive society idealised by the Constitution is a function of a good democratic state, for the one part, and the individual and collective agency of its citizenry, for the other.” Thus, it requires a state which is accountable, responsive and open – especially in directing reasonable public resources to achieve substantive equality and in taking “reasonable, prompt and effective measures to realise the socio-economic needs of all, especially the vulnerable“. In this regard, the Court pointed out that “[o]ur public representatives will…do well to place a premium on an honest, efficient and economic use of public resources“. The achievement of substantive equality, of course, also requires the people of South Africa to commit to the values of equality, non-racialism and non-sexism – especially in a personal and individual capacity.
Very importantly, the Court pointed out that those who are to benefit from affirmative action, must indeed be able to do the work: “They must be suitably qualified people in order not to sacrifice efficiency and competence at the altar of remedial employment… [p]lainly, a core object of equity at the workplace is to employ and retain people who not only enhance diversity but who are also competent and effective in delivering goods and services to the public.“
Restorative justice and remedial measures go to the heart of achievement of equality in South Africa as required by the Constitution. It is, nonetheless, an emotive topic. This is due to our history of racial and other forms of discrimination, the effect of remedial measures on those who today feel excluded, but also due to prevailing inequality in general in society. Affirmative action is a topic, which – as pointed out by the Court – is often, and for very good reasons conflated with the notion of racial discrimination and the lack of service delivery, but also possible political abuse (if the governing party’s policy of so-called cadre deployment is considered). Clearly, the importance of the Constitutional Court clarifying uncertainties and guiding an understanding of how affirmative action should be applied in a balanced manner as required by the Constitution – as it did in this case – goes well beyond the domain of lawyers. It also speaks to ordinary relations in society. It speaks to how these measures and the manner in which they are implemented will impact on mutual respect, trust and unity in South Africa.
By Adv Johan Kruger, Director: Centre for Constitutional Rights