WHO ARE THE TRUE BENEFICIARIES OF AFFIRMATIVE ACTION? Solidarity obo Barnard v SAPS 2010 5 BLLR 561 (LC)

Abstract

Affirmative action measures within the workplace seek to ensure equal employment opportunities and create a workforce that is representative of South African society. One of the issues faced by employers in implementing affirmative action is the question of who should be a beneficiary of affirmative action. This case note seeks to answer this question by looking at the definition given to beneficiaries of affirmative action and the concept of disadvantage. The first part of the article will explore the general objective of
affirmative action and the two schools of thought on how we identify beneficiaries of affirmative action. I argue that recognition must be given to the fact that individuals who fall within the designated groups are not necessarily equally placed in terms of their experience of disadvantage. I further argue that in recognizing these differing experiences of disadvantage, we can avoid the creation of an elite middle-class black group that benefits from affirmative action to the exclusion of those that truly deserve the protection. The second part of this case note will focus on a landmark decision that highlights the difficulties encountered by employers in fulfilling their obligation of implementing affirmative action policies. In the last part of this case note I shall comment on the lessons that can be drawn from the case. I shall compare the development of affirmative action in the United States and India with that of South Africa in order to show the constitutional principles that need to be advanced within such a social transitional programme and recommend that affirmative action as a means to an end needs to evolve with the understanding that it functions within an ever changing social and economic environment. If such changes are ignored the true beneficiaries of affirmative action are not given recognition and the desired end of creating a workforce representative of South African society and thus reaching our goal of equality cannot be realized.