Media Statement: Clarification on SAHRC findings on Affirmative Action

Thursday, 30 August 2018

The South African Human Rights Commission wishes to correct certain misconceptions created by Solidarity in a statement released on 30 August 2018 on affirmative action, in which it states: “HRC (sic) says SA affirmative action laws must change after Solidarity’s complaint to UN.”  
The headline to the Solidarity statement is disingenuous and misleading.  

The SAHRC’s Equality Report: Achieving substantive economic equality through rights-based radical socio-economic transformation in South Africa 2017/2018 was not in response to Solidarity’s complaint to the United Nations. 

The SAHRC’s Equality Report 2017/2018, which makes certain recommendations on the Employment Equity Act, is an annual report produced by the SAHRC as per legislative requirements.  

In the Equality Report 2017/2018, the SAHRC finds that:

1.    The definition of designated groups as contained in the Employment Equity Act, 55 of 1998 (EEA), and the current system of disaggregation of data could give rise to new imbalances in the labour market. 

2.    Affirmative action measures must be targeted at groups and individuals who are subject to unfair discrimination, in order to eventually achieve substantive equality and a society based on non-racialism and non-sexism.

3.    Decisions based on insufficiently disaggregated data fail to target persons or categories of persons who have been disadvantaged by unfair discrimination, as required by the three-pronged test for affirmative action.

4.    Without first taking the characteristics of groups into account, varying degrees of disadvantage and the possible intersectionality of multiple forms of discrimination (based on race, ethnicity, gender or social origin) faced by members of vaguely categorised groups, cannot be identified.

5.    As such, the SAHRC’s finds that the (EEA) be amended to target more nuanced groups on the basis of need and should take into account social and economic indicators.

6.    Once the objective of affirmative action, namely substantive equality, is achieved, temporary special measures should cease. However, given the persistence of gross inequality in South Africa – and despite policies aimed at radical socio-economic transformation – much remains to be done before this goal is reached. Currently, special measures in the employment equity context raise several concerns in respect of the requirement for affirmative action to promote equality.

7.    It is therefore clear that affirmative action and reasonable accommodation are designed to both provide initial economic opportunities to disadvantaged groups by prioritising their appointment but continue to apply once people from such groups have entered the workforce.


The SAHRC regrets that Solidarity has chosen to release a statement which is misleading and potentially divisive on a matter of significant importance to our constitutional democracy. 


Issued by the South African Human Rights Commission