Dr Lucas Ntyintyane, the writer of a letter to Business Day yesterday (see ANC wrote that letter), suggested that the open letter, supposedly written to Mr Jimmy Manyi by Minister Trevor Manuel, was nothing but a ploy by the ANC to try and win back the votes of the “maligned coloured voters in the Western Cape”.   Paul Hoffman contends that, apart from the public administration and the composition of the judiciary, there is “no requirement that race or gender be taken into account in any other employment context referred to in the Constitution”.

The problem with the Employment Equity Act goes deeper than the tinkering with provisions Manyi has perpetrated.   It ought not to be based on race.   Its true origin lies in disadvantage, not race.   This is expressly the constitutional basis for protecting and advancing those disadvantaged by unfair discrimination — irrespective of their race.   That many black people (as so unnecessarily defined) will be able to fall within this group is indisputable.   There are also many black people and others who will not; just as there are “nonblack people” who will be able to show they were disadvantaged by unfair discrimination via their opposition to the old regime, conscription, homeland expropriation, the prohibition of mixed marriages and other excesses of apartheid.

Yesterday Business Day published an interesting article by Paul Hoffman from the Institute for Accountability in Southern Africa: Employment equity – Manyi’s social engineering is off the constitutional rails.

These extracts as taken from the article as it appeared in Business Day and it is suggested that the full articles should be read.

Unusual becomes bizarre

“IT IS extremely rare to find a senior cabinet minister excoriating his own government’s chief spokesman in public.   When the spokesman in question is also simultaneously the president of a business management pressure group, probably due to the inability of his superiors in government to grasp that there is a direct and intractable conflict of interests between being a public servant and president of a pressure group, the unusual begins to border on the bizarre”.

Off the constitutional rails

Manyi’s task was a thankless one.   The social engineering involved in the legally questionable policy of employment equity under this act is hopelessly off our constitutional rails.   The public administration is the only field in which the constitution requires the workforce to be “broadly representative of the South African people”.

It is also true that consideration has to be given to the composition of the judiciary from the gender and race perspectives so that it can “reflect broadly the racial and gender composition of S A”.   But there is no requirement that race or gender be taken into account in any other employment context referred to in the constitution.   Instead, the equality provision in the bill of rights requires that “to promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination may be taken”.   Note that there is no reference to race in this provision as ours is a non-racial democracy.

The Employment Equity Act of 1998 is such a piece of legislation.   In its preamble it reveals that it was enacted to “ensure the implementation of employment equity to redress the effects of discrimination; achieve a diverse workforce broadly representative of our people; promote economic development and efficiency in the workforce…”.

The first and third of these objectives cannot be cavilled at, but the second introduces a notion that is not in the constitution except as regards the public administration and the judiciary.   This is where the act comes off the constitutionally compliant rails on which it is meant to run.   To compound this basic error, the act creates what it calls “designated groups” along racial and gender lines (that is, not according to “disadvantage” as required in the equality clause in the bill of rights) — “‘designated groups’ means black people, women and people with disabilities”.

Rule of law and notions of nonracism and nonsexism

The fundamental difficulty with the scheme of the act is that the foundations of the new order are built upon the notions of nonracism and nonsexism.   The rule of law is also foundational to this new order.

Where the wheels fall off in the implementation of the type of employment equity for which the act makes provision is when, exercising their rights to freedom of association and freedom of movement, a large element of the designated group congregate in a particular province.   In the case of the coloured group in the Western Cape, this phenomenon has led to a national minority group constituting a majority group in the province of its choice.   This has had effects deleterious to the hegemony of the African National Congress (ANC) and, at least in part, explains why Cape Town and the province have escaped ANC control.

Excess of one group in the Western Cape

In practice, if passed in its present form, the new law will require that Africans replace coloureds in the workforce of the Western Cape as there are simply too many, by Manyi’s reckoning, of the latter in the province.   Hence Manyi’s throwaway suggestion that they disperse so as to ensure African domination everywhere.

Undesirable social engineering

There are elements within the ANC and the BMF who agree with Manyi’s approach.   Manyi’s idea is the most direct route to the hegemony of the ANC’s national democratic revolution.   According to this somewhat warped view, there will be a non-racial society in SA when what is called “representivity” (not a word in the English language) in the workplace is achieved.   This is not nonracism at all, it is social engineering.

“Nonracism is achieved when people are judged and employed by the quality of their characters and competencies, not the colour of their skins.   It ought not to matter in a truly non-racial order whether any person is black, brown, pink, yellow or green.   If economic development and efficiency in the workforce are created non-racially, a brighter future awaits.   If social engineering of the type so firmly lodged in Manuel’s nostril by Manyi is allowed, it will lead to the breakdown that saw the end of apartheid, which was an earlier failed experiment in social engineering.