Reimagining Power Relations: Hierarchies of Disadvantage and Affirmative Action
Authors Sandra Fredman
Affiliations: Professor of the Laws of British Commonwealth and the USA, Oxford University; Director of the Oxford Human Rights Hub; Fellow of Pembroke College, Oxford
Source: Acta Juridica, 2017, p. 124 – 145
The South African Constitution has embraced affirmative action as an aspect of substantive equality from its inception. Nevertheless, it remains a challenging concept. Because affirmative action measures tend to redistribute existing jobs or benefits, rather than widen the pool of benefits, they inevitably create competition between individuals. When legal challenges of affirmative action measures come from privileged applicants, the rationale for preferring members of disadvantaged groups is easy to derive from the aims of substantive equality. However, recent cases have brought to the fore the potential of competition between disadvantaged individuals. Section 9(2), in permitting measures ‘designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination’ does not give a metric for distinguishing between degrees of disadvantage, or different kinds of disadvantage. Affirmative action expressly recognises the link between status, such as gender or race, and class, in the sense of socio-economic disadvantage. One of its aims is therefore clearly redistributive. However, this paper argues that status should not be regarded as simply a proxy for socio-economic disadvantage. In other words, race, gender and disability cannot simply be collapsed into class. It is argued in this paper that there are also other core mutually reinforcing aims of substantive equality to complement the redistributive element: to redress stigma, stereotyping, prejudice and violence; to facilitate voice and participation; and to accommodate difference and transform underlying structures. Affirmative action measures need to be calibrated to address all of these dimensions of substantive equality simultaneously. Stigma and ongoing racial prejudice need to be addressed, but at the same time, attention must be paid to the ongoing class divisions within status groups. Most importantly, it is necessary to examine the extent to which affirmative action can genuinely bring about structural change, rather than simply changing the racial or gender composition of existing structures. By applying a more nuanced analytic framework to affirmative action cases, it is possible to come to more principled, transparent and appropriate ways of addressing different degrees and types of disadvantage.