Chapter 1 Overcoming the legacy of discrimination ... - The Presidency

CHAPTER 1
OVERCOMING THE LEGACY OF DISCRIMINATION IN SOUTH AFRICA:
SYNTHESIS CHAPTER
Executive Summary
Adam Habib
This chapter provides a summary of the analyses contained in the following chapters.
It begins with a review of the commitment of the Constitution of the Republic of South
Africa, 1996 (Act 108 of 1996) to both social justice and a single nation, and argues
that any assessment of the initiatives to overcome discrimination must be undertaken
with a view to understanding how well they achieve these goals. The overall analysis
is that while some progress has been made on the legislative and policy fronts, more
needs to be done in other areas. Key elements of this analysis include the following:
• At the “representivity” 1 level significant progress has been made in rectifying
the racial demographic profile in both the public service and the parastatals,
but far more needs to be done on the gender and, in particular, the disability
front;
• Real successes have been recorded in institutions where the state exercises
significant control;
• The benefits of accessing redress have largely gone to those who are better
resourced within disadvantaged communities; and
• Achieving representivity may have come at the cost of efficiency in certain
contexts, but this need not have been the case.
The chapter concludes with a series of generic recommendations, including more
vigorous interventions on the gender and disability fronts, the inclusion of material
criteria in the determination of Black Economic Empowerment (BEE) beneficiaries,
increased management or regulation of the redress programme by the state, and
enhanced support for capacity building and other similar initiatives.
1.1 INTRODUCTION
Overcoming racial, gender and disability discrimination has been one of the primary
goals of the post-apartheid state and its first three political administrations. This
should not be surprising. After all, apartheid was about discriminating against one
group so as to advance another. And while racial discrimination was apartheid’s most
obvious manifestation, implicit in its political and socio-economic architecture lay
hidden two other forms of discrimination: gender and disability. The founding fathers
(and fathers they were) of the post-apartheid constitutional dispensation, aware of
these multiple forms of discrimination, explicitly identified their transcendence as a
constitutional obligation and an immediate political priority. So it is not surprising that
overcoming the legacy of multiple discriminations has been the explicit goal of both
the Mandela and Mbeki governments.
1 “Representivity” as used throughout this report refers to achieving a workforce profile that matches
South Africa’s demographic reality. Since 1994 this term has been employed with increased frequency
in South African sociological and political discourse.
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What is surprising, however, is how little reflection there is of these processes. Of
course there is much debate in the general media on one or other aspect of the
redress strategies. But this is very rarely supported by or located within a sound
empirical analysis of the historical or contemporary state of affairs. Indeed, the
debate tends to be polemical and polarised. Part of the problem lies at the feet of
politicians who unnecessarily polarise this debate to score short-term political points
against their opponents. 2 But the academy and science councils are also complicit for
not explicitly identifying this as a subject of investigation and therefore as part of their
research agenda. After all how can we transcend the legacies of our multiple forms of
discrimination if our intelligentsia, both within and outside the academy, are not
playing their part in monitoring, evaluating, and reflecting upon the redress strategies
that we, as a nation, have embarked upon?
This is, however, changing. Increasingly, within the academy and science councils,
and within the government, there is growing recognition of the need for more
reflection about race, gender and disability discrimination, and how these can be
combated and transcended. This study, for example, was initiated at the prompting of
and supported by the Presidency. And even before the Human Sciences Research
Council (HSRC) was approached by the Presidency in this regard, we had already
begun to develop plans to launch a comprehensive multi-year study on race and
redress in South Africa. Both initiatives are of course compatible. This present study
is of a shorter duration with its analysis located in secondary material and existing
databases. The HSRC multi-year study, given its duration, would be more in-depth,
located in new empirical research. The current study will of course feed into our
future study, and we are exploring a potential partnership between the HSRC and the
Presidency to ensure that the results of the future study feed into policy and decisionmaking
processes within the state.
There is perhaps no better time to undertake this study. Nearly 11 years have passed
since our founding elections and we are now in our third political administration. In
the political science literature on transition and democratisation, it is assumed that
transitional societies, in their third term of democracy, have entered the phase of
consolidation. Even if we do not buy into this unnecessarily linear and procedural
understanding of democratisation and its consolidation, it does seem sensible to
pause and take stock, given that we have just celebrated 10 years of democracy. Of
course no definitive conclusions can be drawn of the success or otherwise of redress
strategies initiated over the past decade. This is too short a time to judge the effects
of a political and social transformation exercise. Nevertheless, sufficient time has
passed for us to make provisional judgments on whether we are on the right path,
and whether adaptations or revisions are required. This then is the purpose of this
synthesis chapter.
This chapter is premised on four others, each focusing on a different arena or
thematic area as per our contractual obligations to the Presidency. The four topics
are the public service, the economy, Chapter Nine institutions, and social capital --
including investigations into social inclusion and exclusion. All four topics were
inspired in part by a series of questions or thematic concerns identified by the
2 Both the ruling party and the opposition have been guilty of this. Note, for example, Tony Leon’s
“swart gevaar” tactics in the last two elections and the ANC’s response to these. See Habib and
Naidu, 1999.
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Presidency, and contained in the document attached as Appendix 1. However, it
should be noted that the following chapters are not structured to answer those
questions in an instrumental sense. Instead, the questions and concerns inspired the
research problematic of these chapters, and in that sense the questions are more
substantive rather than instrumentally addressed.
One further preliminary comment needs to be made regarding methodology. At the
outset it must be noted that this research does not generate new empirical
information in its own right. Indeed given the time constraints imposed by the
Presidency, it would have been impossible to generate new empirical research on
the thematic issues under consideration. Instead, both the Presidency and the HSRC
recognised that new empirical information would be generated from our future multiyear
study, and that this study would be located on secondary and existing
databases, most of which have information generated for other purposes.
Nevertheless, the research team did consult and analyse a diverse range of
materials to try and read from these conclusions and lessons that are more
appropriate for the purposes of the thematic concerns in this initiative.
This report submitted to the presidency as part of the HSRC’s contractual obligations
includes five components -- four case study chapters and this overall synthesis
chapter -- each of which is supported by a comprehensive bibliography. This
synthesis chapter begins in the next section with some reflections on the overall
political objectives of the redress strategies we have embarked upon as a nation.
Thereafter, it will summarise the principal arguments and lessons of the four case
study chapters. This will be followed with a conclusion detailing not only the generic
lessons that can be drawn from these case study reflections, but also some of the
conceptual, policy and strategic implications that they herald for the political project of
overcoming discrimination in South Africa.
1.2 THE GOAL OF REDRESS
Redress is an explicit political mandate identified in our Constitution. Section 9 (2) of
the Constitution explicitly states: “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.” This redress
mandate was constitutionally enshrined because of a recognition that particular
social groups in our society were historically discriminated against. No equal playing
field can be assumed in South Africa. If it were to be assumed, and access or
competition at the social, economic and political levels were to be left simply to the
market, then the consequence would be a reproduction of the historical disparities of
our past. It would in effect advantage the beneficiaries of apartheid. The
constitutional priority is thus to create an equal playing field and address in a
proactive way the consequences of the injustices that were historically perpetrated.
In the words of the preamble of the Constitution, its purpose is to “heal the divisions
of the past and establish a society based on democratic values, social justice and
fundamental human rights”.
But redress cannot be interpreted in an unqualified manner. It must be undertaken
within the framework of, and must respect other provisions enshrined in, the
Constitution. After all, the preamble of the Constitution also states that “South Africa
belongs to all who live in it”, and calls for the realisation of “a unity in our diversity”.
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This implicit call for the development of a single nation is perhaps the Constitution’s
overriding goal. Redress, as a constitutional mechanism of social justice, must then
be constructed in a manner, and undertaken in a form, that is compatible with the
goal of realising the establishment of a single nation.
Given this, it is important to reflect on three lessons emanating from the intellectual
endeavour on national identity undertaken in the last two decades. First, it must be
remembered that national identities are, to use Benedict Anderson’s memorable
phrase, “imagined communities” (Anderson, 1983). This is a point worth noting
especially with the current glamorisation of racial identities by politicians, activists
and intellectuals, some of who have impeccable anti-apartheid credentials. In the
new ideology advanced by some of these politicians, activists and intellectuals,
socially constructed racial identities constitute the cultural blocs on which society is
configured (Mangcu, 2001). The reassertion of racial identities and the establishment
of “racial cultural” spaces is seen as necessary because the legacy of
institutionalised racism is not merely a result of material inequality, but also, it is
believed, a product of an invisible cultural norm that promotes “whiteness”. The
problem with this argument is that it detaches “cultural” inequalities from their
material dimensions. Both forms of inequalities can only truly be addressed by
transforming the existing social configurations of power, itself largely defined by the
skewed distribution of resources within society.
Moreover, as Khehla Shubane warned us over a decade ago, such racial reassertion
has merely enabled the affirmation of elite within the disadvantaged groups. And, as
he argued, it is “absurd to extend benefits of affirmative action to black high
achievers such as [then] UCT’s deputy vice-chancellor Mamphela Ramphele or
[then] Telkom Chair and Advocate Dikgang Moseneke – to name a few – simply
because they are black” (Shubane, 1992).
But perhaps the greatest danger of this new ideology is its legitimisation of all kinds
of ethnic entrepreneurs who will begin the play the ethnic card when they don’t get
their own way. We would do well to heed the warning of Mahmood Mamdani who, in
an article published a few years ago, explained the systemic logic of Africa’s slippery
slide to a fractious and politically divided continent. Mamdani suggested that the real
crime of colonialism was to politicise indigenity by granting civic rights to non-natives,
and denying these to natives who were compelled to live under customary rule.
Mainstream nationalism continued this colonial tradition but subverted it, tying
entitlements to indigenity. This led to a political cul-de-sac since it involved the
continuous disenfranchisement of yesterday’s immigrants even though they were the
product of what he termed “the dynamism of the commodity economy”. The result, as
has been noted, was the politicisation of ethnicity and political strife. Mamdani’s
solution: to challenge the automatic link between indigenity on the one hand, and
political identity and rights on the other (Mamdani, 2001).
A second lesson emanating from the literature is that no identity is self-enclosed, let
alone a national identity. National identities are by their very definition always holistic,
incorporating other more particularistic identities. Gerhard Mare, for instance,
describes nationalism as a “supra-ethnic collectivity - that which binds people
together who would otherwise find their greatest sense of belonging in ethnic groups,
religious groups, productive units, and so on” (Mare, 1992: 43). All nations are thus
imagined collectives of multiple other identities. How politically salient these other
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identities are, and how they configure in relation to the overall national identity, differs
from place to place and from epoch to epoch. They are thus a matter of investigation,
especially if one’s purpose is to understand the social character of the society, its
cleavages, and how these can be transcended in a project to build a single nation.
Finally, it must be noted that national identities are always, in part, defined by
intellectual and cultural influences from other national and geographic contexts, even
though the mythmakers of the nation often ignore this. The egalitarian traditions of
Chinese culture are as much determined by the German philosopher, Karl Marx, as
they are by Confucianism. And the more egalitarian elements of our own African
traditions are as much defined by the Latin American Ernesto Che Guevara’s
socialist nationalism as they are by Julius Nyerere’s Ujamaa or the more generalised
continental commitment to Ubuntu. As geographer Doreen Massey says, “What gives
a place its specificity is not some long internalised history but the fact that it is
constructed out of a particular constellation of relations, articulated together at a
particular locus… Instead of thinking of places as areas with boundaries around, they
can be imagined as articulated moments in networks of social relations and
understandings. And this in turn allows a sense of place which is extraverted which
includes a consciousness of its links with the wider world, which integrates in a
positive way the global and the local” (Massey, 1993).
But if national identities are determined by universal influences, what is it that gives
them their national character? Put another way, if South Africaness is constituted by
a particular collection of intellectual and cultural influences both within and outside
our borders, what is it that makes it South African? The answer is human agency. It
is individual choice that defines one’s national identity. As Mamdani reflects: “Political
communities are defined, in the final analysis, not by a common past but by a resolve
to forge a common future under a single political roof, regardless of how different or
similar their pasts may be” (Mamdani, 2001:661). It is one’s choice and
consciousness that defines one as a South African. One is a South African because
she/he wants to be a South African. She/he lives here and sees this as home.
She/he describes her or himself as a South African to the outside world by carrying
this country’s passport and holding its citizenship. South Africaness is an identity
constructed by political choice, even though it is manifested through geographic
boundaries and national symbols.
Redress must, then, be constructed and undertaken in a form that is compatible with
this project of establishing a single nation. It must be founded on the construction of a
rights regime that is uniform, in terms of both benefits and responsibilities, for all
social groups in society. This of course is already done in the Constitution, where the
Bill of Rights categorically enshrines the equality provision for all citizens, and insists
that the right to fair discrimination must be undertaken within the framework of a
respect for the overall equality clause. Redress must also encourage and enable
citizens to make the political choice of forging a common future through the
establishment of a single political entity. Any assessment of redress, then, must be
based on two distinct criteria; first, on how successful it is in advancing a social
justice agenda defined by addressing the historical disparities; and second, whether
it facilitates the emergence of a national consciousness that is supportive of and
enables the coming into being, or sustainability of, a single national political entity.
These two criteria can, but need not, be in conflict. Of course, a tension will always
exist between the two. But this tension can be managed. How well it is managed, and
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what the consequent tradeoffs have been, is the subject of the thematic case study
chapters, which are summarised in the section that follows.
1.3 THE IMPLEMENTATION OF REDRESS: 1994-2004
As has been suggested earlier, the empirical analysis of redress mechanisms and
procedures and their implementation since 1994 is detailed in four chapters, a
summary of the principal arguments of which are detailed in the paragraphs that
follow. The summaries below do not obviate the need to read through the empirical
chapters, since the empirical detail and the nuanced arguments they generate cannot
be adequately captured in the synopses that follow. At best what is detailed below is
a condensed articulation of the principal thematic argument of each of these
empirical chapters, and some of the general observations they collectively raise
about redress and its implementation in post-1994 South Africa.
1.3.1 Chapter Summaries
The first empirical chapter focuses on the public sector and covers public
administration in the three spheres of government, viz. national, provincial and local.
The public service’s progress in the area of employment equity, and hence in
overcoming discrimination, is important for several reasons. First, it employs more
than one million people, and therefore constitutes a significant proportion of the
formal labour market. Second, the public service can and should act as a role model
in taking forward employment equity in the country. After all, civil rights that are
constitutionally specified should not be violated by public institutions and officials. It
must always be borne in mind that political office bearers and senior public officials
are vested with wide powers, which they can exercise to the advantage or
disadvantage of individuals. The incorporation of a justiciable Bill of Rights in the
Constitution, including the all-important right of equality, is one of the prime measures
to protect the civil rights of citizens. The rights in the Bill of Rights will be meaningless
without appropriate structures to actualise and give effect to them. The Bill of Rights
needs structures such as local government and the public service in order to be
effective. Given South Africa’s history of racial and gender discrimination, it is
appropriate that the Constitution promotes a public service and local government that
reflect the demographics of South African society.
The chapter assesses progress in overcoming discrimination using three indicators:
representivity, legislation and policy, and service delivery. On the representivity front,
significant progress has been made within the public sector in overcoming racial
discrimination, some in tackling gender discrimination, and very little in addressing
the discrimination suffered by people with disabilities. By the end of 2001, almost
85% of the public service, and 66% of its management echelon, were black 3 .
Independent studies based on the PERSAL system suggest that 51% of publicsector
managers were African in 2001, up from 30% in 1995. It can be stated that
black employees are collectively best represented in the provincial government
sector (88.5%). In this sector, black employees are best represented in Limpopo
(96.3%), and least represented in Gauteng (71.4%).
3 Unless otherwise stated, the term “black” in this report refers to people who are African, Indian and
Coloured.
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While progress was recorded in making the public service more gender
representative, this was far from satisfactory. The under-representation of women
was particularly acute at provincial and local government level, the primary arenas of
service delivery. The report, however, does demonstrate that in certain departments
like Health, significant progress has been made, with women occupying 58% of
management posts, almost double the target established.
The Department of Home Affairs is another useful case study of efforts in the public
sector to confront racial discrimination. Its current records indicate progress on
affirmative action as follows: of the total number of 5 806 employees below the
(Senior Management Service) SMS level (on 1 September 2001) 44 431 or 76.3%
were black and 1 375 or 23.7% were white. By March 2002 these figures had not
changed significantly although the data showed minimal improvement. In terms of
progress made with respect to affirmative action for the SMS, out of a total of 35 for
the 1 September 2001-30 March 2002 period, 24 (68.5) were black and 11 (31.5%)
were white. The actual number as at 31 March 2002 was 23 black and 11 white.
But other national departments, such as the South African Police Service (SAPS),
are a serious drag on the national average for gender representivity in the public
service. This is a serious issue given the centrality of the SAPS in tackling gender
violence, and the gendered nature of many crimes in South Africa. The current SAPS
workforce profile (for the period 1 October 2003 to 1 October 2004) indicates a huge
disparity between the number of female and male employees. Women number very
few in the top three occupational categories. The momentum of this trend is also
reflected on data related to training and promotion, whereby women’s numbers are
far lower than those of men. A possible explanation of these apparent inequalities at
the workplace is that the SAPS is historically a male employer given the large
number of male police officers in each organisational component.
The participation of women in local government and administration is of critical
importance. However, it is precisely in this sector that women continue to be critically
underrepresented. In the Eastern Cape 95.56% of municipal managers are male and
only 4.44% are female; in Gauteng 86.67% are male; in North West all municipal
managers are male; in Limpopo 92.60% of municipal managers are male; and in the
Western Cape 96.67% are male. In the case of the metropolitan municipalities 82%
of departmental heads are male. In the case of district municipalities, 75% of
departmental heads are male; in local municipalities, 80% of all departmental heads
are male. It can be argued that this critical under-representation of women at the
managerial levels of local government affects gender biases in service delivery.
The least progress in representivity is without doubt on the disability front. People
with disabilities account for only 0.25% of public service employees, far short of the
2% target that needs to be met by 2005. Their representation at the more senior
management levels is even more of a concern, falling to 0.08% of personnel in public
service categories 15 and 16. The Report on Disability Equity in the South African
Public Service (2002) argues that the working environment in departments in the
public service is far from significantly supportive. This is ascribed to the fact that very
little or no provision is made in the budgets to contribute to an environment
supportive of people with disabilities. The chapter concludes by suggesting that most
national departments and provincial administrations tend to pay lip service rather
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than engage in significant programmes to address the discrimination suffered by
people with disabilities.
On the legislative and policy front, the scenario is more positive in all three arenas. A
significant amount of generic and specific legislation has been passed to address
racial, gender and disability discrimination. The 1995 White Paper on the
Transformation of the Public Service; the 1998 White Paper on Affirmative Action in
the Public Service; the Employment Equity Act, 55 of 1998; the Promotion of Equality
and Prevention of Unfair Discrimination Act, 4 of 2000; and more specifically focused
legislation like the Termination of Pregnancy Act; the 1997 White Paper on an
Integrated National Disability Strategy; the Promotion of Administrative Justice Act, 3
of 2000; and the Report on Disability Equity in the South African Public Service,
indicate that there is an impressive legislative arsenal passed since 1994 to address
the three distinct forms of discrimination under discussion.
Yet, as has been so often noted, real change is a product not of legislation but its
implementation. And here the record is less impressive. On the disability front, a
large part of the public service, from its building and facilities, to its rules, is
particularly unaccommodating of people with disabilities. On the service delivery
front, crucial questions can be raised about the public service’s responsiveness to
poor and marginalised communities. And it is a serious indictment of local
government -- the sphere of government in which the citizenry has least faith. 4 The
overall assessment of the public service, then, is that while progress (more in some
areas than in others) has been made on overcoming discrimination on the
representivity and legislative fronts, much still needs to be done to make the public
service responsive to, and its service delivery directed at, poor and marginalised
communities, the primary intended target of redress legislation.
The chapter on the economy reviews the role of women in the economy, the legacy
of racial and gender discrimination in the labour market, and black empowerment in
both the private and public sectors. In analysing efforts to overcome the legacy of
discrimination, the chapter notes that the Department of Trade and Industry has been
at the forefront of the empowerment of women, having established a number of
initiatives that seek to assist women to fulfil their potential as entrepreneurs. These
are complemented by systematic encouragement given by the Department of
Science and Technology to support women in the fields of science, engineering and
technology. Other officially encouraged initiatives include Women in Oil and Energy
(South Africa) and the introduction of transformation charters into the different
sectors of industry, the latter setting goals for women’s as well as black
empowerment over the forthcoming decades. Overall, however, the results of these
initiatives have been mixed. Women have visibly advanced within the corporate
world, yet remain heavily underrepresented at the topmost corporate levels. In
contrast, they have made better progress within the public sector. The unevenness of
women’s advance is similarly highlighted by the unequal advancement of urban and
rural women, and white and black women, to the disadvantage of the latter in both
cases.
Notwithstanding the above, it is in the realm of the workplace and the labour market
where some of the most coherent mechanisms have been developed to overcome
4 An HSRC survey undertaken in July 2001 found that 45.6% of respondents were unhappy with local
government and its performance. See Daniel and de Vos, 2002.
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the legacies of racial and gender discrimination. This is indicated by a review of the
various labour market institutions created to facilitate collective bargaining, enforce
minimum conditions of employment, promote employment equity and coordinate
various vocational training initiatives. The new labour market architecture has
stabilised collective bargaining processes. For example, the incidents of collective
action declined between 1999 and 2002. Nonetheless, worker organisation continues
to be weak in certain sectors of the economy (such as the former Bantustans), while
some employers are turning to a casualisation of labour that seems to reinforce
elements of the apartheid workplace. These developments are taking place within a
market where the number of jobs available has increased, yet insufficiently to absorb
a growing number of job seekers, with the result that the rate of unemployment has
gone up. Furthermore, there has been a shift in the labour market from formal to
informal employment, which reflects a decline in “elementary” jobs compared with a
slight increase in the proportion of management positions, technicians and associate
professions, clerks, and shop and market sales workers, as well as a decline in the
number of mining jobs compared to a rapid increase in the services sectors.
Overall, there have been incremental changes in terms of racial (black) and gender
(female) representation, especially in the higher ranks of the occupational ladder,
although most Africans remain in jobs classified as elementary. Within this context,
we can identify an incremental improvement in the representation of blacks and
women at senior management levels; a decline in the representation of blacks and
women in professional categories; increases in black and female representation in
clerical, service, craft and plant and machine operating occupations; and a decline in
black and female representation in skilled agricultural and fishery work. Meanwhile,
Africans form the majority of non-permanent employees, reflecting a new
segmentation of a labour market wherein the majority of new jobs tend to be
casualised, externalised or are in the informal sector.
BEE constitutes a set of strategies devised by government to overcome historical
racial inequalities in the control and ownership of industry as well as in the labour
market. Nonetheless, the definition of what BEE should be and what it is in practice
has occasioned major controversy and a diversity of views, which range from
“minimalist” to “maximalist” approaches to black empowerment. However, any
assessment of BEE should take into account the historic context of empowerment,
which has been constrained by the nature of the negotiated settlement of 1994
(which, inter alia, entrenched property rights and encouraged market-friendly
policies); the stunted nature of black capitalism; the high level of concentration and
centralisation of the South African corporate structure; and the existence of a
relatively advanced parastatal sector.
Government’s BEE strategy is designed to promote ownership and management of,
and participation in, the economy in both the state and private sectors. This has led
to the development of a legal and policy framework, ranging from proscriptions within
the Constitution to important legislation enacted since 1994, much encouraged by the
Black Economic Empowerment Commission (which reported in 2000) as well as the
establishment of a series of BEE–promoting institutions. Important accompanying
mechanisms and strategies for promoting BEE have been government procurement
practices and policies; licensing and trading quotas; fast-tracked black advancement
within state-owned enterprises; full or partial privatisation; trade union empowerment
initiatives; the promotion of industrial transformation charters (which set long-term
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empowerment goals) and increased pressures upon companies to engage in
Corporate Social Investment. It is also emphasised that government’s three-pronged
land strategy -- land reform, land restitution and land redistribution -- should also to
be considered as contributing to BEE, although the land policies have encountered
many of the same difficulties as BEE generally and need to be reinvigorated.
A broad thrust of the argument is that while the state has been able to promote BEE
vigorously within the public sector through preferential employment strategies and
related deployment of its resources, the advance of blacks within the private sector
has been constrained by the fundamental difficulty that, overall, blacks lack access to
and ownership of capital. This latter factor stresses the importance attached to the
government’s encouragement of industrial charters. These encourage attainment of
broad-based BEE targets (such as increased black employment and staff
development) as well as increased black financial ownership and control.
Overall, although there are considerable difficulties in measuring BEE, the sum total
of initiatives taken by both government and the private sector represent a long-term
initiative whose outcome, although uncertain, goes considerably beyond the scope of
the empowerment of black elite. Nonetheless, greater attention needs to be given to
the issues of assessing the progress of BEE, making BEE more broadly based and
of advantage to the poor, rendering BEE deals and financing more transparent, and
understanding unintended costs and consequences of BEE that may inhibit
economic growth.
The section on the Chapter 9 institutions analyses the functioning of the Commission
for Gender Equality (CGE), Human Rights Commission (HRC), the Commission for
the Promotion and Protection of the Rights of Cultural, Religious and Linguistic
Communities (CRL), and the Pan South African Language Board (PanSALB). The
CGE, HRC and PanSALB have been active for some years so it is possible to offer
some evaluation, while the CRL Commission is still in the process of establishing
itself, so assessment is of necessity limited.
The authors discuss the constitutional mandate of each entity, and demonstrate with
specific examples the measures they have taken to do so. They point to whatever
limitations there may be to the realisation of their aims, and ponder possible
alternatives. The chapter ends by highlighting a number of cross-cutting issues,
namely, overlap between institutions; collaboration between them; the structure of
the institutions and the possible implications of this; their relationship with
government; their relationship to civil society; the balance between urban and rural in
their work; and the vexed question of disability.
It is striking that the relatively long-established CGE and HRC have both undergone
a strategic reorientation. The CGE has recently adopted a strategic plan of action
involving five programmatic themes: governance; gender-based violence; gender and
poverty; gender, tradition, culture, religion and sexual orientation; and gender and
HIV/AIDS. This strategic reorientation was forced upon the Commission by the fact
that its activities were too dispersed in the first couple of years, and by institutional
problems and organisational conflicts. Similarly, the HRC underwent a strategic
reorientation from an “anti-discrimination footing, to an equally principled, but more
preventative approach of viewing, advocating and investigating race and gender
within the framework of the Constitution’s equality clause”. This has involved a focus
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on infusing the curricula of educational institutions with a human rights agenda and
values, as a means to educate the population, and thereby develop a non-racial
value system upon which, hopefully, society can be structured. As for the fledgling
CRL Commission, it does seem as if it has learnt lessons from the operations of its
Chapter 9 counterparts by emphasising a research component and a proactive,
rather than a reactive, mode of operation.
A second common and striking feature is how little the public know of these
institutions. The HRC, which is perhaps the best known, was not recognised by
60.3% of respondents in an HSRC survey in 2001. In the case of the CGE the
situation is only slightly better, with 55.4% of respondents unaware of what the
institution does (Habib and de Vos, 2002, p. 153). 5 In both cases a comparison with
more recent figures would be interesting. This situation is clearly problematic, for if
these human rights instruments are unknown, how can they be effective in assisting
in the political project of overcoming discrimination?
Thirdly, despite the fact that the broader public appears to know little of these
institutions, this has not dented their perceived value to civil society associations.
Almost all relevant nongovernmental organisations (NGOs) and activists seemed to
suggest that the HRC and CGE in particular were absolutely relevant. Two roles of
these institutions were deemed to be necessary. First, they were seen to highlight
and put on the national political agenda issues that would otherwise not receive the
priority they require. Second, they were seen to play a crucial role in voicing civil
society concerns in the national legislature, especially through public hearings on
their respective thematic spheres. Civil society organisations and activists felt that the
Chapter 9 institutions tended to have an influence way beyond other institutional
voices. In this sense they were perceived as a bridge between civil society and the
state – as intended by the framers of our Constitution.
A fourth feature noted in the chapter is the significant overlap of tasks and
responsibilities among these institutions. For example, the vital question of language
that is PanSALB’s central concern, and the tensions as well as creativity inherent in a
multilingual society such as South Africa, also, to a greater or lesser degree,
permeate the work of the other institutions. But the chapter also notes that there is a
distinction in their respective mandates that is often missed in the popular debates.
The HRC, for instance, focuses more on the enforcement of rights, whereas the CGE
has a wider mandate to transform society and change popular attitudes with regard
to gender. Similarly, the CRL Commission is directed to group rights and to making
them compatible with the overall project of building a unified nation. Nevertheless,
the chapter does recognise the considerable degree of overlap in the remits of these
institutions and suggests that these be clarified in order not only to avoid turf wars,
but to enable them to undertake their tasks effectively and efficiently.
Finally, as signalled above, it is disturbing to note that there is little to say about
Chapter 9 institution initiatives in overcoming disability discrimination, though
PanSALB is a partial exception. Clearly disability is the poor and often ignored cousin
of the other two discriminatory concerns. This should be of serious concern
especially since the chapters on the public service and the economy also indicate
that disability discrimination is the arena where the fewest advances are being made.
5 Ironically, while a high number of people did not know of these institutions, some of them are still
comfortable in rating their success or otherwise. See Habib and de Vos, 2002.
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It is hard to avoid the conclusion that the commitments made to overcoming disability
discrimination were in general rhetorical, without much institutional effort having been
made to implement them. Clearly more emphasis needs to be placed on, and more
effort directed to, addressing and overcoming discrimination directed at South
Africa’s disabled community.
Chapter 5 reflects on social capital in South Africa. A social capital paradigm is
premised on the perspective that all aspects of social life are fundamentally
interconnected, including political, economic, and cultural aspects, perceptions and
aspirations, the desires for health and education as much as for supportive networks
of family, friends and peers. Within the social capital paradigm, social life is imagined
in the broadest possible terms. There is a danger that the more is included in the
concept, the less clear it becomes. But there are benefits too. Focusing on these
benefits directs our attention to strengths and weaknesses in the patterns that weave
the fabric of social life and therefore to appropriate and strategic insertion points for
policy interventions and adjustments.
The implication is that policy generation and implementation need to be more
cognisant of the horizontal dimension to their implementation; how interventions in
one area of social life affect other areas. This challenge is also an opportunity
because the implication that interventions targeted at one area can have
consequences in other areas suggests that policy interventions and adjustments
targeted in one area can access and affect all areas of social life. Essential to the
success of this possibility is the relations (interpersonal, professional, familial,
communal, economic and so on) that link different people and weave the social fabric
of South Africa out of the networks that result from participation in politics, the
economy, education, community organisations and other areas that are the focus of
government policy.
The social capital paradigm attaches significant value to these social networks,
arguing that they are the primary conduits facilitating exchanges of resources,
whether material, emotional, intellectual, or even solidarity. In the process, reciprocal
relations of trust are strengthened, thus building social cohesion and accumulating
more social capital. In a sense, trust is the currency in which these social relations
trade. And like any strong currency, the more you invest, the more capital accrues.
Perhaps the most valuable aspect of social networks established and strengthened
through reciprocal trust is that they provide a forum to exercise agency under
conditions that often deny it. If social capital, understood as the stock of resources
residing in and made available to people through their participation in social networks
informed by trust, is a valuable commodity to communities and society generally, it is
particularly so in marginalised, under resourced communities.
The report summarises an impressive range of statistical data revealing racial
attitudes and their evolution, racial and gender enrolment patterns in schools and
universities, the evolution of the world of work and the economy, and public
participation both in the political process and in civic organisation. Such a rich
summary of data would of course reveal multiple lessons, but it is most useful to
draw attention to three significant findings.
First, the chapter reveals that while there is much bonding social capital within
distinct groups, bridging social capital across these groups is weak. A good example
18

of this tendency is the fraught relations between local governments and their
constituencies. Poor communication and consultation between municipal councils
and communities is undermining the Integrated Development Planning pamme and
diluting the potential of Batho Pele principles, designed to facilitate the process, to
develop the kind of trust that builds bridging social capital and promotes social
cohesion. Poor services and slow service delivery is also eroding vertical trust.
The second important finding is that while horizontal bonding social capital is strong
within groups, relatively little social cohesion is happening across class, racial and
other social categories. This is partly due to the strong networks forged out of the
labours of NGOs, survivalist agencies, and community initiatives within distinct
groups like marginalised communities. While this kind of social capital is powerful
and valuable, it is of a particular kind and does not cut across the major social divides
that characterise the legacy of discrimination.
The third important finding is that mechanisms that ought to facilitate the
accumulation of social capital, when not performing properly, undermine social
cohesion. Poor performance at local government level, violence and alcohol and drug
abuse at schools, and lack of transformation in higher education, among other
mechanisms not working optimally, not only limit opportunities to develop trust, but in
the longer term deepen mistrust.
While redress mechanisms and an enabling environment have done much to correct
past imbalances, much more needs to be done in particular for those languishing in
the poverty trap. In this sense, this chapter supports the central theme of all the
others, namely, that while much has been done to overcome various manifestations
of discrimination in the last decade, this scourge still afflicts those located at the
lower end of the material hierarchy.
1.3.2 Cross-Cutting Observations
A number of cross-cutting observations emanate from these summaries of the
empirical chapters. First, and perhaps the most obvious, is that significant advances
have been made in the last decade in overcoming some of the consequences of past
discrimination. The most significant advances have been made on the legislative and
representivity fronts, especially in addressing the racial profile of the public service
and parastatals. But there have also been strides made with regards to the
representation and prioritisation of the interests of women, even if the progress has
not been as significant as it has been on the racial front. Where there has been very
little progress is on addressing the marginalisation of disabled people, and all of the
chapters conclude that on this front there has been more rhetorical support than real
proactive steps taken.
Second, the public service, economy and social capital case studies dramatically
highlight the fact that the primary beneficiaries of redress have been black and
women South Africans in the higher echelons of the class hierarchy. This group is not
as narrowly defined as is often portrayed in the media and by opposition parties.
Nevertheless, the empirical analyses do demonstrate that marginalised or povertystricken
black communities and poor women, although having received some social
benefits in the form of increased social grants and access to basic services (Policy
Coordination and Advisory Service, 2003) have not been prioritised by the redress
19

programs. Indeed, both the economy and social cohesion chapters indicate that
these groups’ share of national income may actually have reduced in this period,
suggesting that they are still labouring under the consequences of past discriminatory
practices.
Third, the biggest advances in overcoming discrimination have been made in areas
where the state either retains control or exerts significant influence. Thus it is not
surprising that both racial and gender representivity have had their biggest
successes in the public service and the parastatals. Where the market has been the
primary institutional mechanism to effect redress, as in the case of land reform,
progress has been compromised. This is in part because it is not in the immediate
interest of the private sector to address the concerns of impoverished communities.
After all there is not much profit to be made from servicing the interests of these
communities, the very ones that redress should be targeting.
Finally, the chapters on the public service and the economy touched on the issue of
the trade-offs between achieving representivity and realising efficiency. This is of
course one of the big criticisms levelled against redress by members of the official
opposition. 6 It is important to note, however, that the implicit assumption in this
criticism, namely that the apartheid public service was adequately resourced and
skilled, is itself problematic. After all, there is significant evidence to suggest that not
only the values but the mix of skills of civil servants at the dawn of the transition was
inadequate for servicing the needs of a modern, technologically advanced economy
and democratic society. Moreover, the tension that may exist between achieving
representivity and realising efficiency was at the forefront of the thinking of legislators
who passed our body of anti-discriminatory laws. One only need consider that this
legislation explicitly states that candidates must either have the skills or the potential
to realise the skills required for the position.
Nevertheless, it would be disingenuous to suggest that the process of
implementation has been completely true to the spirit of the legislation, or that we
have achieved the representivity targets without any compromise to efficiency. Both
chapters, however, implicitly or explicitly recognise that these trade offs need not be
absolute and that there have been cases where the tension between the two
priorities has been managed successfully. The crucial need is to learn from these
experiences and generalise these so that the temporary tension between
representivity and efficiency can be adequately managed.
Overall, the empirical reports suggest that significant advances have been made in
overcoming discrimination in South Africa since 1994. But they also suggest that
there have been some unintended consequences, and that if these are to be
addressed, some amendment of redress legislation and implementation may be
required. It is to this that we now turn our attention.
1.4 POLICY AND STRATEGIC RECOMMENDATIONS
The empirical experience of redress since 1994, captured in the chapters and
summarised in the preceding paragraphs, suggests that some revision and/or
adaptations are in order. In addition to the sectoral recommendations articulated in
6 See, for instance, Zille’s interview with Southall referred to in the economy chapter, which implies
that BEE comes at the cost of efficiency.
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each of the chapters, we would advise six additional generic policy and or strategic
shifts.
1. A more rigorous monitoring of targets with regards to disabled people is
warranted in all sectors. It is obvious that the implementation of redress
programmes for disabled people has not been granted sufficiently high priority,
either by both public officials and private-sector managers. It needs to be
noted that a more rigorous programme of implementing redress policies for
disabled people would require that it be accompanied by the creation of an
enabling environment for such people. This would of course require that the
necessary resources be made available for the realisation of this objective.
2. While some significant advances have been made in overcoming
discrimination against women, much more still needs to be done in this regard.
All of the reports convincingly demonstrate that the achievement of redress
targets for women lags behind those of disadvantaged racial groups. More
rigorous implementation and active monitoring of redress targets for women is
clearly warranted.
3. All of the reports convincingly demonstrate that those who are relatively more
privileged within the disadvantaged group have more successfully accessed
the rights created by redress legislation. This applies across all social
categories. White women who are financially better off have benefited
disproportionately from legislation when compared to poor African women.
Similarly, rich black entrepreneurs have been more successful in accessing
benefits associated with BEE than their poorer counterparts. The result is a
perception, in part but not entirely accurate, that redress has particularly
benefited more privileged sectors within disadvantaged groups. In order to
direct the benefits of redress programmes to wider layers of the population, we
would recommend that material criteria also be considered as an element
defining who the beneficiaries should be. This would require both policy reform
and rigorous implementation and monitoring to ensure that the spirit of the
policy is adhered to. It needs to be noted that this strategic shift should to be
founded on the assumption that the beneficiary universe will change as
individuals’ personal circumstances improve. So, for example, a person who
was a beneficiary on a previous occasion might no longer qualify in this
category as a result of his or her changed economic circumstances, itself a
product of a prior successful redress intervention. Such an approach would
not only enable scarce resources to be prioritised in the direction of the most
needy and disadvantaged, but it would also mediate the possibility of redress
polarising society along racial lines and thereby undermining the project of
developing a consciousness facilitative of a united nation.
4. Redress in the form of racial representivity has been most effectively realised
in state institutions and in organisations in which the state exercises significant
control. We recommend that the state continue to advance the redress
agenda and monitor its implementation. This may take a direct management
or regulatory form, the precise option dependent on the organisation or sector
involved. Either way, this should be done with a view to be consistent with the
constitutional obligations of cooperative governance and deliberative
democracy. We support the government’s current active stance in driving the
21

edress agenda, and recommend that this be configured on a broader social
foundation that also prioritises the interests of poor and marginalised people.
5. Some of the chapters have suggested the possibility that, in certain
circumstances, redress may have come at the cost of organisational
efficiency. However, this need not have necessarily been the case. An active
support programme to the redress initiative, involving capacity building,
shadowing and other innovative interventions, could reconcile the tension
between redress and efficiency. This has of course already been recognised
by the state though the support programmes have not in all cases been
actively implemented. We recommend that these support programmes be
adequately resourced and actively pursued within all sectors. In this regard, it
needs to be borne in mind that the support programmes must be directed to all
in the civil service and not simply to redress candidates. After all, as was
earlier indicated, the public service as a whole needs to be reoriented and
retrained in order to meet the needs of the country in the 21 st century.
6. A national priority programme like the redress initiative cannot be effective
unless the nation’s intellectual resources are mobilised in support of the
programme. To date this has not been done in any effective sense. We
recommend that universities, science councils and NGOs be mobilised to
support this programme, not only to implement it within their institutions, but
also to undertake the monitoring, evaluations, and reflections that are required
for effective implementation. While the coordination of this function can be
located at any institution, only the state will have the authority to mobilise all
the diverse institutions to support this national programme. We recommend
that the Presidency take the lead in this initiative.
It is important to reiterate that this report cannot provide a comprehensive picture of
redress and its effects on South African society. The time constraints under which
this report was prepared necessitated that it be restricted to secondary material and
existing databases. As a result, it can only provide an indicative macro view of
attempts to overcome discrimination over the last decade. This study must be
supplemented by more comprehensive, longer-term empirical studies of
discrimination and initiatives to overcome it in South Africa.
One such study is already planned. As indicated earlier, the HSRC, in partnership
with a range of academic and public institutions, is at an advanced stage of launching
a multi-year study on race and redress in South Africa. This study, while
implementing a mix of methodological approaches, will be more qualitatively
oriented, focusing on four distinct settings: the public service, economy, education,
and sport. It is hoped that this will enable not only more in-depth empirical research,
but also deeper reflections on racism, overcoming discrimination, the evolution of
identities in contemporary South Africa, and the struggle to develop a national
identity and a single nation.
22

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