The constitutionality of the concept of demographic representivity provided for in terms of the Employment Equity Amendment Act 47 of 2013.

Abstract

South Africa is a potentially unstable society because of societal imbalances. The majority of South African black people whether African, Indian or Coloured, suffered disproportionally low levels of wealth, status and quality of employment as a result of Apartheid. The Constitution of the Republic of South Africa Act 108 of 1996 recognises the need to deal with these inequalities and its Preamble indicates the need to heal the divisions of the past, improve the quality of life of all citizens and free the potential of each person. Section 9 of the Constitution provides for equality, however, it also allows for legislative and other measures to be taken for the advancement of persons disadvantaged by unfair discrimination in terms of section 9(2). In order to achieve this purpose, the government introduced affirmative action legislation including the Employment Equity Act 55 of 1998, which prohibits the use of racial quotas. Much affirmative action type legislation, however, as well as the practical application of affirmative action, has been based on the concept of demographic representivity. This concept was adopted as policy by the African National Congress (ANC). The question arises whether demographic representivity as an affirmative action policy is constitutional, given the fundamental commitment of section 9 of the South African Constitution. Moreover, the concept of demographic representivity as specifically provided for in the Employment Equity Amendment Act 47 of 2013 raises questions of fairness and practicality. The significance of this study is that it challenges the constitutionality of the South African government policy in respect of the use of demographic representivity in terms of the Employment Equity Amendment Act 47 of 2013.