AFFIRMATIVE ACTION IN SOUTH AFRICA: A MORAL DISCRIMINATION?

In South Africa, and in other countries, moral discrimination has posed difficult problems in terms of actual agreement on what it is and the actual practice of it. It has not only posed these challenges to legal entities such as the courts but also to individuals who puzzle on what it actually is. Past discrimination of blacks in South Africa has led to affirmative action being taken to make amends for the past. Affirmative action, has however, led to questions on the ability to discriminate between job applicants based on gender and/ or age as well as the actual practice in South Africa. In a country such as South Africa, it may seem inappropriate and insensitive to argue against the practice of affirmative action especially with the history of blatant discrimination against black South Africans during the apartheid regime (Benatar, 2008). However, both the arguments, in support and against the idea, have an intuitive appeal. This paper presents a limited defence of affirmative action and why it is a moral solution as well as arguing against the manner in which it is carried out in South Africa. This paper also responds to some of the objections against affirmative action, which include the fact that the people who benefit are those who need affirmative action the least and claims that affirmative action, in itself, is unjust and unfair. To reiterate, this paper supports the view that; affirmative action is moral while the manner in which it has been carried out in South Africa is not.

Affirmative action in South Africa can be understood as a remedial strategy that seeks to address the legal historical exclusion of a group of people (Hawker, 2000). It refers to all the intentional efforts to increase the representation of disadvantaged groups in a variety of institutions and occupations (Adam, 1997).Generally, the notion of affirmative action might refer to the redistribution of resources and opportunities, some social responsibility programmes such that, preferential treatment is given to previously disadvantaged communities (Maphai, 1989). Affirmative action may mean different things to different people, for example, the recruitment of black people into previously discriminatory institutions or the fair and equal treatment of everyone (Maphai, 1989).

For the purposes of this paper, the notion of affirmative action will be narrowed down into its application of preferential treatment of previously disadvantaged parties in the work place and in higher education. Unless stated otherwise, previously disadvantaged parties in the context of this paper refers to black South Africans, which includes blacks, Indians and coloureds.

Since the practice of affirmative action has taken place, there has been mixed feelings around the implications for job security, quality and level of production as well as the demands for the replacement of workers. While affirmative action has been seen as hope for many disadvantaged blacks, it has also triggered an equally intense rejection by some white people who perceive themselves to be victims of this reverse discrimination (Adam, 1997). Disagreement prevails about the extent of harm due to the past discrimination and the collective responsibility of society to rectify that wrong. To one extreme lies the people that believe that the effects of past discrimination are pervasive can manifest in economic and social deprivation and institutionalised racism. To the other extreme are those that believe that past discrimination can no longer be blamed for the disadvantages suffered by black people in the economy and that affirmative action is unjust in itself (Forde-Mazrui, 2004).

Those who argue against affirmative action rest their arguments on two moral principles. The first principle is that racial discrimination, whether positive or negative, is unjust (Wassestrom, 1978). The second principle is that of corrective justice, which means that one who harms another by wrongful actions is the one morally obligated to make amends to the victim (Forde-Mazrui, 2004). These principles, however, have an implication for societys responsibility for past societal discrimination against blacks and its effects. As a result of societys participation in wrongful discrimination in the past, it is arguable morally obligated, due to corrective justice, to make amends to the victims. Thus, if the current socioeconomic disadvantage experienced by blacks reflects the injustice of the past, society at large is obligated to remedy those disadvantages (Forde-Mazrui,

2004). A moral conflict thus rises between societys obligation to make amends for past discrimination and its obligation to refrain form reverse racial discrimination. Yes, affirmative action may cause injustice to some parties disadvantaged by these policies, but to refrain from making amends would leave the moral wrong uncorrected, which is a moral wrong in itself according to corrective justice theory.

There are various arguments that people who are against affirmative action come up with and this paper will attempt to deal with some of them. One of the arguments against affirmative action is that affirmative action is, in itself, unjust because it is in a way, reverse discrimination as one group is given preference to another. It is important to note though, that there is a huge difference in programmes that give blacks a moderate boost in economic and social activities and blacks not being allowed to apply for jobs because of their skin colour (Delgado, 1998).The purpose of affirmative action is remedial whereas apartheid regimes completely excluded other races from being able to improve the economic wellbeing. Relatively little displacement occurs as a result of affirmative action, compared to the total exclusion that was enforced by the apartheid regime (Forde-Mazrui, 2004) Another argument against affirmative action is that, it benefits those that need it the least. For example, the sons and daughters of black lawyers who got into UCT under the race-based admissions policy. However, one must consider how unevenly we apply this argument. There is an unstated assumption that resources are only put into where they are needed the most namely, extremely poor black South Africans. However, we do not apply the same standard to, say, house committees when they decide to allocate more money to entertainment instead of outreach programmes, even though the outreach programmes need both more money and time.

The final objection that the paper will look at is that affirmative action is wrong because the programmes take into account race and gender, instead of an individuals qualifications. This argument assumes that a preference is given to less qualified people due to their race and gender,

completely ignoring people who are more qualified for the position (Wasserstrom, 1978). However the objection based on qualification is inconsistent. The argument assumes that qualification translates to efficiency. However, qualifications, especially educational qualifications, are often not closely related to any plausible conception of social effectiveness (Wasserstrom, 1978). Wasserstrom, in his paper, makes an example of law students, stating that admitting the most qualified law students, means that those who have the highest chance of scoring high grades, are admitted. It says nothing about efficiency apart from the fact that the students are the easiest to teach.

The reason why affirmative is so important, is that the effects of the past injustice to black people has resulted in many families being stuck in a cycle of never-ending poverty. Black people are generally worse off compared to white people when it comes to socioeconomic activities. Compensation and redress is thus required for the present injustice that has occurred due to the past injustice to blacks in South Africa. Of course, not all blacks are currently disadvantaged, but the majority of people that fall under this race bracket are. Furthermore black poverty is different to that of white poverty. The cycle of poverty in black families tends to last forever while that of white people tends to only last for a generation or two (Delgado, 1998). This, therefore, means that socioeconomic based policies are not likely to do much about racial social integration. It is therefore the responsibility of society to compensate this injustice, because if we limit ourselves to only civil laws against discrimination but do nothing about the system of networks, favours, and family cronyism, the social structure will remain the same, with white dynasties at the top and blacks at the bottom. Moderate discrimination methods such as strong-preference are therefore moral as the discrimination is used to remedy and not to harm (Delgado, 1998).

As a result of past discrimination in South Africa, there is a very small pool of skilled labour due to the poor education systems such as the Bantu Education System as well as other tribalised education

policies (Alexander, 2007). Under these conditions, it is clear that any empowerment strategy would have to give priority to education and training. However, very little progress has been made in South Africa in this regard. It is important to note, however, that the legislation, such as the Public Services Act and the Skills Development Act that has been implemented, is a policy that mainly benefits the rising middle class and therefore deepens the class inequality among blacks therefore deepening inequality in our society (Alexander, 2007).

The Black Economic Empowerment policy has also contributed to the widening of the gap between the black middle class and the poor blacks as the policy has mostly benefited a handful of the black elite. Amid the increase of the black elite, the large majority of black people have been growing poorer since the end of apartheid. As a result of the protests, the government was spurred to legislate BEE into a more broad-based process. In practice though, the acquisition of equity by blacks is still viewed as the crux of empowerment (Tangri, R, and Southall, R., 2008).

From the arguments above, we can see that affirmative action as practised in South Africa has limited morality. The idea behind it is moral as the policies try to remedy the past injustice. However, the corrupt government officials and the fact that connections and positions of power lead to empowerment defeat the whole purpose of affirmative action. The BEE policy now leads to the vast majority questioning the credibility of the scheme, and the abilities and qualifications of the black people that do actually succeed.

As a result of the past injustice due to discrimination, South Africas current society is obliged to redress the effects of that discrimination. Such an obligation should not, however, negate the personal responsibility of those that experience the effects of the past injustice nor imply personal blame on the white people that must bear the cost of past discrimination. It is however, not enough to provide superficial opportunities that advance only the elite of the blacks. Furthermore,

affirmative action seeks to remedy the past injustices and thus is, in itself, a moral act. However, the way that affirmative action is practised in South Africa is a cause for concern, as corruption and the advancement of a few individuals is prominent. Those issues have led to this paper concluding that the practice of affirmative action in South Africa is not moral.

References

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Alexander, N., 2007, Affirmative action and the perpetuation of racial identities in post-apartheid South Africa, Transformation: Critical Perspectives on Southern Africa, Number 63, 2007, pp. 92-108 (Article)

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Delgado, R., 1998 1998 Hugo L. Black Lecture: Ten Arguments against Affirmative Action--How Valid. Ala. L. Rev. 50: 135.

Forde-Mazrui, K., 2004, Taking conservatives seriously: a moral justification for affirmative action and reparations, California Law Review, Vol. 92, pp 204-279

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