A critical analysis of the appropriate standard of review in affirmative action cases in South Africa: Lessons learned from the United States of America

Abstract

The purpose of this study is to critically analyse the criteria and standards of review established by the judiciary in implementing and interpreting affirmative action in South Africa. Through a comprehensive analysis of relevant court cases, such as the case of South African Police Service v Solidarity obo Barnard, the Constitutional Court confirmed rationality as the standard by which the constitutionality of affirmative action measures should be tested. The minority judgment in this case further held that the appropriate standard by which the constitutionality of affirmative action should be tested for its fairness and proportionality. This is a recent judgment where affirmative action was directly considered in the context of the South African Constitution. The Constitutional Court concluded that the rationality standard, although not perfect, is nonetheless the most suitable standard by which the constitutionality of affirmative action measures ought to be tested. One of the primary objectives of this study is to critically evaluate the standard of rationality and assess its constitutionality. This study also aims to assess whether the rationality standard is indeed an appropriate standard for ensuring the strict protection of human rights in the application and interpretation of affirmative action. The study further analysed whether the rationality standard ensures a clear interpretation of fairness and a proportional application of rights.” The role of the judiciary in affirmative action cases involves striking a delicate balance between promoting equality and protecting individual rights, to avoid reverse discrimination. It is upon this set premise that courts must ensure that fairness and proportionality are considered, and whether abandonment does not violate the equality right in the Bill of Rights. The abandonment of fairness and proportionality creates a different social engineering agenda, one that only seeks to address past injustices but fails to uphold the Constitution’s objectives. To achieve the aims and objectives of this study, a doctrinal research method was employed. It allowed access to information through desktop research and for the analysis of such information to support a hypothesis.