Solidarity will fail if it puts affirmative action on trial

SOLIDARITY has compiled a raft of cases which, if successful, will expose the irrationality of employment decisions by the state. Yet it also seems Solidarity is casting its strategic net way too wide. It is wrong if it thinks it can put affirmative action on trial. That will fail, legally and politically.

The smarter, narrower strategy should be to challenge state decisions that do not meet legally required standards of rationality. That matters particularly with public-service employment decisions that speak to the security of our society. But calling the state’s bluff on irrationality in these instances does not amount to a moral or legal challenge of affirmative action in general. Here is why.

First, let us take as an illustrative example the case of the police captain Renata Barnard, who was, by her account, overlooked twice for promotion to superintendent, despite being qualified for the job she applied for. Her contention is that she was overlooked because she is white.

The post for which she applied is essentially frozen until a suitable black candidate arrives, however long that might take.

It is worth stating that material facts are disputed by the state, so for purposes of analysis we are here assuming the captain’s version to be true. If this is true, it seems the state has taken a decision that is not rational.

If the rationale is there is no suitable black candidate, but after a few years no such candidate is found or head-hunted, then in reality it seems to be a case of exclusion by racial fiat rather than one grounded in a legitimate end that is served by the exclusion.

If the state could prove the management position for which Barnard applied is not important (and hence there is no public risk in waiting to fill it), and that it had, say, some sort of programme through which suitable candidates from other underrepresented designated groups are shortly to pass, then perhaps the freezing of the post could be legally defended. But in the absence of such facts, it is an irrational decision and one whose legality surely cannot be sustained in light of section 9(1) of the constitution, which imposes such a requirement.

Still, the legal case will be difficult to prove. There is constitutional precedent (in the case of former Grahamstown police station commissioner Vuyile Gcaba) establishing the principle that employment and labour relationship matters do not generally amount to administrative action, and so are not governed by the Promotion of Administrative Justice Act. This means the case cannot be fought on grounds of administrative injustice.

Of course, the legal folks engaged by Solidarity understand all this, which is why Barnard’s case found itself in the Labour Court on Monday. However, while sitting in the right jurisdictional space, the legal arguments mounted must now be chosen carefully. This is where distinguishing between affirmative action in general and the facts of particular cases is crucial.

Affirmative action, quite apart from the moral justification in its favour, is constitutionally provided for in terms of section 9(2) of the bill of rights. For better or worse, such policies are legally unassailable.

So while it is politically tempting for Solidarity to use these cases (despite claiming otherwise) as a way of stimulating public debate on affirmative action in general, it is barking up the wrong tree.

Ten cases — even if all succeed, which is unlikely — do not amount to either a moral or legal defeat of affirmative action.

Solidarity’s argument should be more nuanced. It should be based on the fact that in cases where affirmative action decisions are not at issue, and where the alternative is to leave important public posts empty, excluding whites is irrational and so illegal.

In such cases, affirmative action is not at issue because the employer is not faced with candidates from designated groups who might otherwise be up for employment or promotion.

But it is worth noting that even if the real genesis of such injustices might be some state official’s wrongful understanding of affirmative action, or even such an official’s racist interpretation of affirmative action, the gist of the legal challenge is a demand for state rationality in cases in which affirmative action is not at stake. This kind of legal challenge is likely to succeed.

First, it does not dispute the legal and moral legitimacy of affirmative action in general.

Second, it does not fundamentally tie the case to demands that the state should take an employment decision based on the Promotion of Administrative Justice Act.

Third, the requirement of fair labour practice provides a sufficient basis to demand a rational justification from the state.

Fourth, the Gcaba case does offer a small window of constitutional opportunity. A key element of the court’s rationale for its decision was that an employment decision not directly affecting other citizens is a labour matter between the complaining party and the state. If a case can be mounted that some of these decisions do indeed affect other citizens directly — not an unreasonable contention — we may well be interestingly back on constitutional ground.

It is still not likely that the Constitutional Court (should it have to consider this strand of argumentation) would declare affirmative action unconstitutional, but it might well have to provide further guidance on the general application of affirmative-action principles in cases where direct effects on other citizens (unlike the Gcaba case) do come into possible play. Barnard’s case may not fall within such a line of argument, but the assessment of candidates for a post such as national police commissioner, for example, surely does.

So what should we make of this legal ping- pong match?

Solidarity deserves credit for highlighting these cases and stimulating public debate on the application of affirmative action. Of course the organisation has its own ideological agenda, but it is a legitimate voice in a political landscape dominated all too often by centre-left politics.

However, these cases will not succeed in morally, legally or politically defeating affirmative action in general. What they should hopefully do is to force the state to be more rational when it takes decisions that affect you and me individually and all of us collectively.

Furthermore, the blanket exclusion of a group on the basis of race, in cases in which affirmative action decisions are not even at stake, should be legally condemned.

But for these positive outcomes to be realised, Solidarity and its lawyers should be careful which legal arguments they choose. They should also not overreach politically.

Nuanced, narrower arguments about the irrationality of particular decisions are more likely to stand the test of time than rehearsals of general, tired and defeated arguments on affirmative action’s overall desirability.

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