The negative impact of the apartheid regimeâs policies on the social, political and
economic conditions of the majority of the population is well established and persists into
the present day South Africa. The South African Constitution acknowledges this
negative legacy, but also contains a vision of the type of society it envisages for South
Africa. The inclusion of values, principles and rights on which this new society is based
does not, by virtue of its design, erase all the consequences of the previous discriminatory
policies. Simply removing discriminatory legislation and practices cannot alleviate the
injustice and poverty that resulted from 40 years of oppressive legislation and
government policies.
Implicit in this constitutional vision are remedial and restitutionary measures for
the achievement of the constitutional goal of a free, prosperous and egalitarian South
African society. Illustrative of this fundamental commitment, several constitutional
provisions, directly or indirectly, sanction remedial measures to address remaining
injustices. Different types of remedial measures are envisaged, namely affirmative action
programmes, a government policy of preferential procurement, and Black Economic
Empowerment. The constitutional imperative for policy tools to transform the South
African economy in particular, by means of black economic empowerment is therefore
clear.
In this study the legacy of apartheid, with specific reference to the economic aspect
thereof, is researched. From this it becomes clear that transformation in the way
economic resources are divided is necessary. The enactment of specific legislation
dealing with the subject resulted from the recognition of the need for regulatory
intervention to give momentum to the process of reform. The B-BBEE Act and its Codes
of Good Practice provide the foundation for the drafting and implementing of the BBBEE
programme. The B-BBEE programmeâs operation is analysed in order to draw
conclusions on the constitutionality thereof. Within the framework of the Constitution, several provisions empower the state to
adopt remedial measures to correct systemic injustice. The most apparent of these is the
right to equality in section 9. It provides that everyone is equal before the law and has
the right to equal protection and benefit of the law and entrenches the right not to be
discriminated against, either directly or indirectly, on a number of specifically
enumerated and analogous grounds. Section 9(2) makes specific provision for remedial
measures, not as an exception to the equality guarantee, but rather an extension thereof â
a restitutionary equality conception. In the Preamble to the B-BBEE Act it is stated that
one of the objectives with the Act is to âpromote the achievement of the constitutional
right to equalityâ. The right to equality therefore occupies a central place in any
constitutional discussion on the B-BBEE programme. The position on the constitutional
validity of affirmative action measures, and therefore also the B-BBEE programme, is
currently governed by the Constitutional Courtâs decision in Minister of Finance v Van
Heerden, where the Court formulated three elements for a valid section 9(2) measure.
The Courtâs approach in the Van Heerden case was therefore analysed in order to make a
determination of the constitutionality of black economic empowerment measures.
However, in order to place B-BBEE in its constitutional context the totality of
constitutional provisions which touch on the programme, that is both mandating and
limiting provisions, was considered.
The practical operation of the programme was analysed and that information was
used to draw conclusions on the constitutionality of the programme when placed in the
framework provided by the relevant constitutional provisions. Recommendations were
also offered which could address some of the problematic aspects of the programme
identified.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:ufs/oai:etd.uovs.ac.za:etd-10042011-110544 |
| Date | 04 October 2011 |
| Creators | Janse van Rensburg, Adri |
| Contributors | Prof JL Pretorius |
| Publisher | University of the Free State |
| Source Sets | South African National ETD Portal |
| Language | en-uk |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | http://etd.uovs.ac.za//theses/available/etd-10042011-110544/restricted/ |
| Rights | unrestricted, I hereby certify that, if appropriate, I have obtained and attached hereto a written permission statement from the owner(s) of each third party copyrighted matter to be included in my thesis, dissertation, or project report, allowing distribution as specified below. I certify that the version I submitted is the same as that approved by my advisory committee. I hereby grant to University Free State or its agents the non-exclusive license to archive and make accessible, under the conditions specified below, my thesis, dissertation, or project report in whole or in part in all forms of media, now or hereafter known. I retain all other ownership rights to the copyright of the thesis, dissertation or project report. I also retain the right to use in future works (such as articles or books) all or part of this thesis, dissertation, or project report. |
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