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  • Equality and Disability in the Workplace: A South African Approach* Charles Ngwena Department of Constitutional Law Faculty of Law University of the Free State ngwenac.hum@mail.uovs.ac.za (A Seminar Presentation in the School of Law, University of Leeds, England, 29th November, 2004). 1 Introduction

    My seminar today is about equality in the workplace and has a particular focus on people with disabilities in the South African workplace. In approaching this topic, it is appropriate, I think, that I should, at the outset, reveal some of my overall perspectives or even biases, if I may call them. I am not a labour lawyer by training or orientation, but feel entitled, and, hopefully, qualified to address a topic that encroaches on the traditional domain of labour lawyers. I work within a human rights paradigm. When it comes to the workplace, I very much believe that any protection that job applicants or employees might derive from common law norms and parliamentary legislation, is at best tentative and fragile as it can be sacrificed on the alter of political expediency no matter the nature of the political complexion of the government of the day. Ultimately, rights must be underpinned by fundamental norms that put a premium on the respect for human dignity. My adopted country - South Africa provides an enabling environment for my thesis, not least because the human rights paradigm is inextricably linked with a constitutional paradigm to be point of conflation.

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  • South Africa has a written constitution (the Constitution).1 The Constitution is supreme.2 The protection and advancements of human rights is one of the founding principles under the Constitution.3 Not surprisingly, the provisions of the Bill of Rights were inspired by international human rights instruments. Indeed, the Constitution requires courts to take into account international law when interpreting provisions of the Bill of Rights.4 In this seminar, I intend to delineate and give content to the parameters of the fundamental norms that shape the achievement of equality, and how these norms intersect with people with disabilities in terms of entering into, and advancing in, employment. To give a meaningful picture of how disability intersects with equality in the South African workplace, it is essential that, I begin by sketching out the notion of equality as a founding principle and as well as an imperative under the Constitution. Once this is done, I shall then discuss the measures that have been adopted in order to implement equality. Though in this connection, I would have liked to also look at the broader policy framework, however, on account of constraints of time, I propose to make South Africas Employment Equity Act5 the focal point. 2 Equality Trying to give content to the meaning of equality can be difficult in any discipline, not least in the sphere of law. Judges concede that equality is a challenging concept. In 1 Constitution of the Republic of South Act No 108 of 1996. This Constitution (otherwise known the Final Constitution) superseded the Constitution of the Republic of South Act No 200 of 1993, (otherwise known as the Interim Constitution). 2 Section 2 of the Constitution says: This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. 3 Section 1 of the Constitution provides, inter alia, that: The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms 4 Section 39 of the Constitution. 5 Act No 55 of 1998.

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  • Andrews v Law Society of British Columbia, for instance, Justice MacIntyre of the Supreme Court of Canada described equality as a far more elusive concept more than any of the other rights in the Canadian Charter of Rights and Freedoms.6 Whilst philosophical notions and ideas of fairness, fair treatment, liberty and fraternity broadly stake out the terrain of equality, as a concept, equality defies simple definitions. Equality is fluid concept. For most societies, the parameters of equality have, over time, tended reconstitute to reflect changing human aspirations. However, my seminar is not intended to be a disquisition on equality. I am content to draw sustenance from how South Africa applies equality as a juridical concept. To give you a sense of contemporary jurisprudential notions of equality in South African, I need to remind you a little about South Africas past as a racial oligarchy. Pre-democratic South Africa was a country whose core identity was racial segregation. It was as if everything began and ended with race. The dispensation of rights and privileges was dictated by a state-ordained racial pyramid whites at the top, Africans at the bottom, and Coloureds and Indians occupying somewhat intermediate positions.7 In an inverse sense, state oppression also followed the contours of the same pyramid. In 1994, following the first democratic elections, a cataclysmic change took place. As most of you know, South Africa became a democracy. However, on becoming a democracy, South Africa did not only dismantle the racial apparatus of the state. It went further and forged a revolutionary break with the past, not least in the area of protecting human rights and freedoms. That break was underpinned by the adoption of a democratic constitution. In one of the earliest cases to 6 [1989] 1 S.C.R. 143 7 Use of racial or even racist categories here is not intended to offend but to portray accurately South Africas historical circumstances during apartheid especially. Such categories underpinned not only underpinned official policy, but were also used in legislation for determining access to land, education, and amenities.

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  • come before the Constitutional Court - S v Makwanyane - the late Justice Mohammed (then Deputy President of the Constitutional Court), with characteristic vividness of language, described the new Constitution in the following terms:

    The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive, and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirational egalitarian ethos8

    Equality is a pervasive value under the Constitution. It has been described as a core value underpinning post-apartheid South Africa. The right to equality is extensively accommodated in the provisions of the Bill of Rights, and most poignantly in section 9 which says.

    (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of

    all right and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

    (3) The state may not unfairly discriminate directly or indirectly discriminate against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age disability, religion, conscience, belief, culture, language and birth.

    8 1995 6 BCLR 655 (CC) par 262.

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  • (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

    (5) Discrimination on one or more grounds listed in subsection (3) is unfair unless it is established that the discrimination if fair.

    To fully comprehend the orientation, and in some respects, unique nature of equality under the Constitution, it serves well to treat section 9 not so much as a discrete, atomistic right, but rather as part of an interconnected web of fundamental norms that ultimately spin around the goal of respecting human dignity in a country that is reinventing itself. Echoing the Universal Declaration of Human Rights, the Constitution recognises that everyone has inherent dignity and the right to have their dignity respected and protected.9 Equality under the South African Constitution can be described as means to an end, and that end is respect for human dignity. This is not to suggest that the right to human dignity somehow stands in a hierarchical relationship to other rights, as all rights in the Bill of Rights enjoy parity. Rather, it is to underscore the holistic and enduring nature of human dignity, and its link with the South African approach to equality. Justice ORegan, a member of the Constitutional Court the highest court on constitutional matters - said this about the right to human dignity:

    Recognising a right to human dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right, therefore, is the foundation of many other rights that are specially enumerated in the Bill of Rights.10

    9 Section 10 of the Constitution 10 S v Makwanyane 1995 (6) BCLR 655 (6).

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  • Speaking extra-judicially, Chief Justice Chaskalson, the most senior member of the judiciary, has echoed this sentiment by describing human dignity not only as a common thread that runs though the provisions of the Bill of Rights, but also as an attribute of life itself; an attribute from whi