A Critical Analysis of Ee Measures in Sa

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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 equity system stronger. The weaknesses of those systems will also be highlighted in order to learn valuable lessons from other system’s failures so that South Africa does not make the same mistakes.

The final part of this thesis will be in depth discussions and the proposal of solutions to the weaknesses of the South African employment equity system that have been highlighted throughout the thesis. These proposals will be put forward in order to ensure the most efficient and effective employment equity system in South Africa. There will

ii

also be a reassessment of the most valuable lessons learned from the foreign systems that would be easily implemented into or avoided by the South African system in order to ensure an effective employment equity system.

The purpose, therefore, of this thesis is to critically analyse employment equity in South Africa. A further purpose will be to propose certain amendments and changes to the current system to ensure the Employment Equity Act is reflective of the needs of the people South Africa.

iii

Acknowledgements
It is at this point that I take the time to acknowledge and give thanks to those people who have assisted me in the completion of this thesis. I would firstly like to thank Ms Rosaan Kruger and Dr Graham Glover for assisting me with certain aspects of this work. I would also like to thank Mr Gordon Barker, my supervisor, for all the assistance he has given me throughout the entire process of writing this thesis. However, most of all, I would like to dedicate this work to my parents. Without my parents and their support, both financial and emotional, I would not have been available to come this far in life. I hope for nothing more than to make you proud and bring a smile to your faces.

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Short Table of Contents
Chapter I: 1.1 1.2 Purpose of the Study Structure of the Thesis 2 2

Chapter II: 2.1 2.2 2.3 2.4 2.5 Affirmative Action Defined The Origins of Affirmative Action The Purpose of...
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