Abstract

This article critically examines affirmative action in South Africa, tracing its constitutional and legislative development, judicial interpretation and practical challenges, with comparative insights from India and Malaysia. It highlights the evolution from the cautious, flexible approach in Van Heerden to the restrictive framework in SAPS v Solidarity obo Barnard, which prioritises valid Employment Equity Plans (EEPs) and narrowly limits challenges to the implementation of remedial measures. Post-Barnard jurisprudence confirms that affirmative action measures are unlawful only where EEPs are deficient, misapplied or regionally misaligned, particularly when numerical targets function as rigid quotas. The 2023 Employment Equity Amendment Act and the 2025 sectoral targets introduce ambitious transformation goals; however, their implementation is constrained by the limited availability of suitably skilled candidates from designated groups. A comparison of South Africa’s decentralised sector-wide approach with India’s structured reservation system and Malaysia’s public-sector quotas reveals the need to align affirmative action with labour market realities, educational pipelines and economic policy. The article concludes that substantive workplace transformation cannot rely solely on quotas or targets. Instead, a holistic, multi-dimensional strategy is required – integrating legislative enforcement with targeted social, educational and economic interventions – to effectively redress historic disadvantage and achieve meaningful equality.