Towards unity – reconciling fairness and rationality in affirmative action disputes

Authors Emma Fergus

ISSN: 2413-9874
Affiliations: Lecturer, Commercial Law Department, Institute of Development and Labour Law, University of Cape Town
Source: Industrial Law Journal, Volume 36 Issue 1, 2015, p. 40 – 69


This article considers the standard applicable in assessing employers’ affirmative action (AA) measures in unfair discrimination disputes. It necessarily begins with an overview of the Constitutional Court’s decision in SA Police Service v Solidarity obo Barnard handed down in September 2014. As the judges did not agree on the appropriate standard of scrutiny for AA, however, that standard remains uncertain. Recent amendments to the Employment Equity Act 55 of 1998 will likely compound this uncertainty. In an attempt at clarifying the position, this article considers Barnard with reference to both the constitutional provisions governing restitutive measures and those provided for in the EEA. From these, an argument is made that — provided it is suitably applied — the test set out by the Constitutional Court in Minister of Finance & another v Van Heerden for assessing restitutive measures in general is well suited to the employment context. Should that test be applied to workplace AA going forward, it will ensure compliance with both relevant constitutional and statutory provisions and international law.