A Critical Analysis of Ee Measures in Sa
A Critical Analysis of Employment Equity Measures in South Africa
A thesis submitted in fulfilment of the requirements for the degree of: Masters in Law of Rhodes University
by Ismail Laher 2007
Preliminary Matters
Abstract ii
Acknowledgements
iv
Short Table of Contents
v
Extended Table of Contents
vi
Abstract
This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution.
After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment
A thesis submitted in fulfilment of the requirements for the degree of: Masters in Law of Rhodes University
by Ismail Laher 2007
Preliminary Matters
Abstract ii
Acknowledgements
iv
Short Table of Contents
v
Extended Table of Contents
vi
Abstract
This thesis analyses the Employment Equity Act 55 of 1998 and its application in labour law in South Africa. After an initial examination of the general concepts with regards to employment equity and current international conventions regarding employment equity, the study will move on to examine employment equity as it stands in the law today. In examining the current law regarding employment equity, a brief historical background will be offered in order to show the legacy of apartheid: the immense disparity between the different categories of South African people in the modern era. By using this background and analysing the relevant provisions of the Constitution, it will be argued that there is a very real need for employment equity measures to bring about a true sense of equality in South Africa and that such measures are fully endorsed by the Constitution.
After it has been established that affirmative action is an important tool in the creation of an equal South Africa, the measures put in place to help create this equal South Africa will be critically analysed. This critical analysis will point out certain weaknesses in the current affirmative action system. Following this critical analysis of the South African employment equity law, the employment equity systems used in Brazil, Canada and Malaysia will be examined in detail. The purpose of this analysis will be to find the strengths and weaknesses and successes and failures of these foreign systems. This will be done in order to highlight those areas of the foreign systems that can be implemented into South African law in order to make the South African employment
Citations: 18. 19. 20. East Zulu Motors v Empangeni / Ngwelezane Transitional Local Council 1998 (1) BCLR (CC). Eskom v Hiemstra NO & others (1999) 20 ILJ 2362 (LC) Extra Dimension & Others v Kruger NO & Others 2004 (2) SACR 493 (T). 63. 64. 65. Walters v Transitional Local Council of Port Elizabeth & Another (2000) 21 ILJ 2723 (LC). Whitehead v Woolworths (Pty) Ltd (1999) 20 ILJ 2133 (LC). Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC). 1. 2. 3. Bantu Building Workers Act 27 of 1951. Bantu Education Act 47 of 1953 Basic Conditions of Employment Act 75 of 1997 (Amendment Act 11 of 2002). 10. Constitution of the Federative Republic of Brazil, 1988. 11. Constitution of the Republic of South Africa, 1996. 12. Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, of June 1951.