'n Kritiese ondersoek na die leemtes van regstellende aksie-maatreëls in Suid-Afrika: 'n regsvergelykende studie

With the coming into force of the Constitution of South Africa one of the main objects was the achievement of equality. This entails the use of different measures in order to achieve a general state of equality in every sphere of society. These measures, better known as affirmative action, aim at making the workplace more representative of designated groups. This lead to the coming into force of the Employment Equity Act which aims at eliminating unfair discrimination and implementing affirmative action measures in order to promote equality in the workplace. This study acknowledges the importance of affirmative action, but the application thereof is mostly criticised as being unfair. The gaps that have been identified include the following: The arbitrary application of equality in that the court does not give proper consideration to fairness and the wrong application and notion of affirmative action by making use of indirect discrimination such as previous disadvantage in stead of neutral considerations such as under representation in the workplace. Affirmative action is also understood by some as being a right and not a measure and a defence. The Employment Equity Act is also exclusively utilised which will result in nondesignated groups being indirectly drawn from the labour market. Furthermore, to much stress is put on employment and not enough attention is given to job-creation and socio-economic development and training. Lastly there is little consideration of the importance of the employment equity plan in that it is an instrument for the application of affirmative action in the workplace. In considering these problems it is evident that the Employment Equity Act will have to be amended by adding proper criteria in evaluating the fairness of employment equity and providing for the inclusion of non-designated groups in order to insure the elimination of under-representation in all labour sectors. Furthermore, more attention must be paid to other problems like training and development that will add to the success of affirmative action. Finally employers will have to acknowledge the importance and advantages of an employment equity plan in that it is an instrument protecting the employer and assisting him in implementing employment equity. The reform of affirmative action and more specific employment equity can possibly result in a more positive attitude and a more effective application in South Africa.