The AfriForum Civil Rights Index – released on Human Rights Day – analyses the realisation of first-generation rights in the country. It found that the right to equality is misrepresented in South Africa by the government. The right to equality, specifically regarding racial and gender equality, has been a contentious issue in South Africa over the past few decades. South Africa has encountered numerous difficulties in this regard, predominantly with regard to issues such as affirmative action and discrimination against women.
The movement says it has found that racial interpretation remains a key priority for the ANC. Policies such as affirmative action and BEE continue to be among the most controversial issues. Although affirmative action is supposed to be a strategy to redress past injustices on a temporary basis, it has become a permanent policy of the current South African government over the past two decades and has no practical ending in the near future.
According to the International Labour Organisation, affirmative action should be of a temporary nature. At the current rate, the government seems to support the notion that each workplace should reflect the racial demographics of South Africa.
Trade union Solidarity has long held the position that a purely mathematical interpretation of affirmative action, where a person’s race carries a disproportionately large weight in decisions regarding the appointment, promotion or laying off of staff, is irrational.
In many instances, affirmative action has been used as a justification for direct discrimination against specific individuals. Furthermore, many positions remain vacant because there are no applicants from the ‘designated group’ who can fill them. The most prominent illustration is that of the action that the trade union Solidarity is fighting on behalf of Lieutenant Colonel Renate Barnard against the South African Police Service (SAPS).
In September 2014 the Constitutional Court handed down judgment in an application for leave to appeal against a judgment of the Supreme Court of Appeal. The appeal was about whether the decision of the National Commissioner of the SAPS not to promote Ms Barnard to the position of superintendent in the SAPS National Evaluation Service (NES) constituted unfair discrimination on the grounds of race in contravention of section 9 of the Constitution and section 6 of the Employment Equity Act (Act No. 55 of 1998). The ruling by the Constitutional Court stated that the failure to promote Barnard did not amount to unfair discrimination.
Subsequently, during 2015, Solidarity lodged a complaint against the South African government with the United Nations’ Committee on the Elimination of Racial Discrimination (CERD) in Geneva. The movement now awaits the outcome.
