Abstract:
Under the Constitution of the Republic of South Africa the right to equality includes the full enjoyment of all rights and freedoms for all, thus providing not only for formal but also for substantive equality. The preference for substantive equality should be viewed against the backdrop of the fact that South African society is one of the most unequal societies in the world, a situation that is in part a consequence of the racially discriminatory policies of the erstwhile white minority government. The constitutional commitment seeks to address this state of affairs through suitable remedial and restitutory measures. The eventual goal is the achievement of substantive equality.
Arguably the most important legislative measures of this kind is the Employment Equity Act, 55 of 1998. The Act is intended to further the right to substantive equality in the South African workforce. This Act provides for affirmative action measures aimed at the achievement of substantive equality in the field of employment. The central criterion on the basis of which the Act is designed in order to measure the achievement of (substantive) equality is that of representation (representivity). By virtue of the criterion the work force in both the public and private sectors is required to reflect the national population profile in terms of race, gender and disability.
The present mini-dissertation is an inquiry into the suitability or otherwise of the principle of demographic representation as a legitimate criterion for substantive equality. The investigation begins with an enunciation of the concept of substantive equality. This is followed by an analysis of the origin, content and consequences of the criterion of representivity. This analysis is conducted, with reference to selected jurisprudence. The focus of this part of the investigation is enunciate the way in which the courts have defined the relationship between substantive equality and representivity and how it also equated these two concepts. This is followed in the last chapter by a critical analysis that shows that this equation is in fact ill-conceived since representivity more often than not is incongruent with the notion of substantive equality.
