Racial quota systems
In terms of section 9(3) of the South African Constitution, no person may unfairly discriminate directly or indirectly against anyone on one or more grounds, including (most prominently) race. The Promotion of Equality and Prevention of Unfair Discrimination Act is legislation enacted pursuant to section 9(3) to prevent or prohibit unfair discrimination.
Section 28 of the Equality Act places a duty and responsibility on the State, institutions performing public functions, and all persons to eliminate discrimination, in particular on the ground of race. In carrying out such duties and responsibilities, the State, institutions performing public functions, and others, must adopt viable action plans for the promotion and achievement of equality in respect of race.
At present, the topic of racial quotas is being debated in many on-going court cases, in universities (especially medical faculties), and in sport governing bodies. Under a racial quota system, a specific number or percentage of positions are set aside specifically for a designated race.
Are racial quotas a legitimate affirmative action measure to manipulate demographic profiles or unfair discrimination? Local case law is sparse. Only as an illustration, we briefly discuss USA case law.
Note that, due to the cultural, demographic, economic, political, and other differences between South Africa and the USA, the ultimate answer to the question in South Africa may be very different from that in the USA. Indeed, in the USA, affirmative action was designed to benefit percentagewise small minorities, at the cost of the majority. Whereas, in South Africa, affirmative action is designed to benefit the overwhelming majority at the cost of percentagewise a small minority. In a sense, what is an exception in the USA is the rule in South Africa. Perhaps using the same term for such vastly different endeavours may be misleading.
Regents of the University of California v Bakke (1978), a case in the (USA) Supreme Court, their highest court, is famous for (1) upholding the concept of affirmative action (in origin largely a USA product), but (2) striking down the application of racial quotas by the State and other public institutions.
The University denied Bakke, a white male, admission to its medical school, and he sued.
As the nine judges penned six different judgments, Bakke is a difficult judgment to unpack. Justice Powell (in effect, for the majority) found against racial quotas, as less restrictive programs, such as making race one of several factors in admission, would serve the same purpose. He held that the racial quota discriminated unfairly against Bakke. As the university could not prove that Bakke would not have been admitted even had there not been a racial quota, he ordered the university to admit Bakke.
The minority judgement of Justice Brennan (supported by three other judges) would have upheld a racial quota as legitimate to remedy disadvantages cast on minorities by past racial prejudice, provided it does not demean or insult any (non-designated) racial group.
In Grutter v Bollinger (2003) the Supreme Court revisited the Bakke case.
The University of Michigan denied Grutter, a white female, admission to its law school, and she sued.
The majority held that a race-conscious admissions process that favoured underrepresented minority groups, but that also took into account many other factors, and evaluated on an individual basis for each applicant, did not amount to an unconstitutional quota system.
The minority judgement of Chief Justice Rehnquist (supported by three other judges) would have struck the admissions process down as a thinly veiled and unconstitutional racial quota system.
Some European countries ban racial quota systems outright, but others accept them for narrow purposes. Brazil allows a racial quota system at universities. Malaysia has a pervasive racial quota system, including at universities and in the civil service.
Malaysia’s racial quota system favours the 70% majority ethnic Malays. The 1971 New Economic Policy was described as a temporary measure, but remains in place today. The NEP has benefitted the designated group, but has caused a continuing brain drain and a system of corrupt patronage. The NEP and its merit and demerit remain divisive in Malaysia, and dominate politics.
One can expect a divided South African Constitutional Court on the question of racial quotas, but not the strict scrutiny applied in the USA. Racial quotas may well pass constitutional muster in South Africa.