n Acta Juridica - The prohibition of unfair discrimination and the pursuit of affirmative action in the South African workplace

Volume 2012, Issue 1
  • ISSN : 0065-1346
  • E-ISSN: 1996-2088



This contribution reflects on the prohibition of unfair discrimination and affirmative action in South Africa. The prohibition of unfair discrimination in the Employment Equity Act is analysed in the light of developments at an international level and in the light of a comprehensive survey of South African jurisprudence. Based on this analysis, the authors conclude that the constraints associated with any prohibition of unfair discrimination, as borne out by the South African experience, inhibit the contribution that the prohibition and affirmative action can make towards the pursuit of substantive equality. Building on this analysis, affirmative action is placed under the spotlight in the second part of the contribution. As a redistributive strategy, affirmative action specifically attaches socio-economic benefits, such as jobs or government contracts, to those disadvantaged by status. However, this raises a number of important challenges, three of which are explored in this contribution. Questions are raised about the relationship between affirmative action and social identity, the demarcation of beneficiaries, and the potential impact of affirmative action measures.

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