De Vos answers some [s]Legalbrief Today [/s] readers on AA

He says ‘by far the most compelling argument against affirmative action is that it may entrench racial categorisation and racial thinking in our society and so will lead to a kind of ‘reverse apartheid’ in which whites will suffer from relentless discrimination until the end of time’. He quotes from the Constitutional Court judgment in the case of Minister of Finance v Van Heerden, where Deputy Chief Justice Dikgang Moseneke said the Constitution imposes a positive duty on all state institutions – including the judiciary and the executive – to take steps to promote the ‘achievement’ of equality. De Vos says ‘this means affirmative action will not only remain constitutionally permissible, but will also remain constitutionally required for quite some time to come’. However, he notes, Moseneke also says we must look at affirmative action contextually, which De Vos interprets to mean ‘as the context changes, so will the legal rules around affirmative action’. He adds: ‘This means that as soon as we are unable to say that the ‘overwhelming majority’ of persons from a specific racial group have been disadvantaged by unfair discrimination, we will get to the end of constitutionally mandated affirmative action solely based on the race of the individual.’ Read the full response

Pule Malefane, MPL, Gauteng Legislature: The debate is somehow misplaced and confusing. Every policy has its positive and negative spin-offs, and like any other policy, monitoring and evaluation are the keys to ensuring that it meets its objectives. The Malefane view

This debate was sparked by publication of the views of De Vos and David Benatar, professors in the law faculties at UWC and UCT respectively. Do you have an opinion? If you do we’d like to hear it. Write to us at info@ebriefnews.com The Benatar article The De Vos article