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Written by: Dries Diamond

Section 15(2)(c) of the Employment Equity Act (55 of 1998) defines the scope and nature of affirmative action in South Africa, and states the following –

“(c) making reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer;”

This Act was promulgated in pursuance of the mandate that section 9(2) of the Constitution of the Republic of South Africa gives the lawgiver – to enact legislation that facilitates taking positive steps to advance or protect persons or categories of persons that has suffered unfair discrimination in the past (be it on the basis of sex, race, religion etc.).

Curiously, the Act declares affirmative action to be measures taken to ensure that designated groups (white women, all Africans, coloureds and Indians, as stated in section 1) are afforded equal opportunities in the workplace and are equally represented in the workplace.

Equal representation is therefore seen as a separate concept to mere equality. Equity or equality is not a concept that is mentioned much in South African political discourse anymore; the term ‘Transformation’ has become much more popular. Where the Constitution seems to mandate and encourage the pursuit of equality, government has shifted this pursuit to the pursuit of Transformation, or as it is called today – Radical Economic Transformation.

What Transformation entails has not been clearly defined, but it is noticeable that, at least in the eyes of politicians and social media keyboard warriors, when a body or group is majority white, it is ‘untransformed’.

Whether a body is successfully transformed is measured by the number of black owners, decision makers, competitors and/or members.

The main tool in measuring and pursuing transformation has been ‘representivity’ (sic, I quote the phrase directly. In many circles it is not yet considered to be a word.). It is a term that keeps cropping up in public discourse and more notably in government policy documents. Simply Google representivity, the examples are legion.

Representivity has been defined as the norm in terms of which institutions and organised spheres of people are required to be composed in such a manner that they reflect the national population profile, particularly as it relates to race. In my view this definition correctly reflects the meaning of the word in South African context.

I do not, however, see anyone asking why must organised spheres and institutions reflect the national demographic profile?  I imagine this has something to do with the public lynching one would receive for daring to ask this question, given the history of South Africa. But it is a valid question. The Constitution mandates the pursuit of equity, and this is not surprising given the historical context in which it was drafted. What can, however, be seen from legislation and the public conversation on Transformation and representivity, is that it does not have much to do with equity.  People who demand Transformation do so against the supposition that it is a goal worthy of pursuit in own right.

Why this is the case, I do not know.  I believe it to be an unrealistic and undesirable goal for two reasons.

1. Public institutions and spheres by nature do not reflect the demographics of the country

One would be hard-pressed, especially in a diverse and egalitarian society, to find an institution or sphere that represents the national demographic. This is the case because associations are like people: They differ. Some organisations are cultural in nature and others attract people of a certain demographic.  Sometimes an institution specifically pursues the interests of a section of the population.

David Benatar states it better than I can:

“… even in the absence of injustice, we cannot expect that racial, ethnic and other groups and both sexes will be represented proportionately in all professions, trades and activities. Groups are often disproportionately prevalent without their being the beneficiaries of injustice.  For example, there was a disproportionately large number of Jews at the University of Vienna in the late nineteenth and early twentieth century, despite discrimination against them.  In early twentieth-century India, Parsees held a disproportionate number of university degrees, especially in sciences and engineering.  In the Catholic Church in the United States, disproportionately many priests and bishops were Irish and disproportionately few were Italian.  There were a disproportionately large number of female doctors in the Soviet Union.  More recently, Cambodian immigrants ran 80% of doughnut shops in California, and a disproportionately large number of African born residents of the United States, relative to any other immigrants or US citizens, hold doctoral degrees.”

Spheres and institutions, whether public or private, are rarely representative of the national demographic profile, and they shouldn’t be. People in a free society should be allowed to associate and express themselves and should be given the opportunity to do so, without encroaching on the liberties of others.

If we were to follow the idea of representivity through to its logical conclusion or endpoint, it would amount to homogenisation. This stands in direct contrast to the idea of a “Rainbow Nation”.

2. It’s not like the establishment of representivity achieves anything

Achieving representivity will not lead to the achievement of social justice or equity (whatever that means). A very simple example in the South African context illustrates this fact.

During the era of white minority rule, the best facilities and development opportunities were reserved for the white population. This was also applicable to sport, and rugby in particular.

To combat the legacy of the previous government’s policy, which left hundreds of thousands of South African scholars with inequitable access to development opportunities, the South African Rugby Union instituted a policy of racial targets, which applies to all levels of the game whether amateur or professional.

A quick look at the South African Schools rugby team for 2017 shows that its members attended the following schools: Paarl Boys High, Monument, Durban High School, Glenwood, King Edwards School, Grey College, Paarl Gymnasium, Parktown Boys High, Maritzburg College, Nelspruit, St Stithians, Kearsney College, Helpmekaar, Garsfontein and Welkom Gimnasium.

The team selected, as per requirements, was 50% black. Every single player selected attended a model C or private school.  These players, whether white or black, were the beneficiaries of a system created by the previous government that gave white boys a competitive advantage over their rugby-mad counterparts who call areas such as the Transkei or Mamelodi their home. Today, more than ever, rugby seems to be a game for the rich and the privileged. The only difference is that today the few who have access to the structures needed to develop and be successful are, unlike 1989, no longer only white.

Representivity in the above example has achieved nothing, and I would argue that this has been the case in most other contexts.

Proponents of Transformation argue its necessity by referring to the legacy of apartheid. If the motivation behind Transformation is to cultivate change and achieve prosperity for all, then representivity is not the way to do it. If the goal of Transformation is homogenisation, then Transformation is a possible threat to liberty, freedom of expression and freedom of association.

Author: Dries Diamond is a practicing advocate in Pretoria and Polokwane. He has a master’s degree in constitutional and administrative law at the University of Pretoria.