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3. Affirmative Action in Employment

For some years before 1994 both government departments and private sector employers were already appointing more black managers and putting significant efforts into a ‘soft’ form of affirmative action based mainly on training and mentoring. This was prompted partly by the skills shortage among whites and partly by the imminent transition to black majority rule.

This ‘soft’ form of affirmative action, as noted in Chapter 1, focuses on ‘inputs’ (training and mentoring to improve the skills of the disadvantaged) rather than ‘outputs’ (racial targets or quotas). An inputs-based approach to affirmative action is also what is envisaged under the equality clause (Section 9) of the 1996 Constitution, which generally requires strict adherence to equality before the law but also authorises appropriate remedial measures to ‘protect or advance those disadvantaged by unfair discrimination’.1

However, within little more than a year of the 1996 Constitution entering into force, the ANC put forward an Employment Equity Bill that focused on racial targets, rather than on increasing skills. It also required the attainment, over time, of demographic representivity at all levels of the workplace.

The Employment Equity Act of 1998

The Employment Equity Act of 1998 was published as a bill in November 1997, enacted into law in 1998, and brought into operation in December 1999. At the time of writing, it had thus been in place for some 15 years. It bars unfair discrimination on racial and at least 15 other grounds, this prohibition applying to all employers irrespective of their size. By contrast, the affirmative action provisions of the statute apply only to ‘designated’ employers. These are defined as employers, whether in the public or private sectors, which either employ 50 or more people or have annual turnover exceeding specified thresholds.2

Designated employers must ensure that ‘black people’, women, and the disabled are ‘equitably represented’ at all levels of the workforce, while black people are expressly defined as ‘Africans, coloureds, and Indians’. However, the Population Registration Act of 1950, which established these categories and set out rules for classifying South Africans into them, was repealed by the National Party government in 1991. Hence, there is no longer any legislation that defines these categories or explains how classification is to be achieved.3

The Employment Equity Act seeks to cater for this by requiring (in regulations first gazetted by the minister of labour in 1999 and since regularly renewed) that all employees should ‘voluntarily’ classify themselves as ‘white’, ‘Indian’, ‘coloured’, or ‘African’. More than two decades after the National Party ended racial classification, the ANC government has thus breathed new life into a system that would otherwise long since have ended. Moreover, if employees refuse to classify themselves or provide ‘inaccurate information’, employers must take over the task of racial classification, using for this purpose ‘reliable historical and existing data’, whatever that may mean.4

Once employees have been identified by race, employers must use national and regional demographic data to assess the degree to which black people are ‘under-represented’ at any level in the workforce. This in turn depends on how far the proportion of black employees at any level differs from the black share of the economically active population (EAP) – those people between the ages of 15 and 64 who either work or are seeking jobs. Africans, coloured people and Indians currently constitute 87% of the economically active population at national level, making this the target for black representation that employers are expected to achieve. In addition, since Africans make up around 75% of the EAP, this is the ultimate target for African representation at all levels.5

Though the Employment Equity Act expressly ‘excludes’ the use of ‘quotas’, employers are expected to set ‘numerical goals’ and apply ‘preferential treatment’ to black people to correct for under-representation and ensure their equitable representation at every level, from the most junior up to senior management. Though only black people who are ‘suitably qualified’ are entitled to preferential treatment, this criterion is broadly defined. It may depend on formal qualifications or relevant experience, but it also suffices if a black person has ‘the capacity to acquire, within a reasonable time, the ability to do the job’.

Failure to make ‘reasonable progress’ towards demographic representi­vity, or to comply with various other requirements, is currently punishable by maximum fines ranging from R500 000 for a first offence to R900 000 for a fifth similar offence within three years. These fines are to be tripled or more under amendments recently adopted, as further explained in due course.6

Designated employers must report to the Department of Labour on the progress they are making towards demographic representivity. At present, larger employers with 150 employees or more must report on 1 October every year, while smaller employers with fewer than 150 staff members must report every two years. (However, now that recent amendments to the Act have taken effect, all employers will have to report each year.) The reports submitted by employers in both the public and the private sectors are analysed by the Commission for Employment Equity, a body established under the Act to monitor the implementation of the statute and make recommendations to the government on any necessary changes.7

The 75% target for African representation is problematic for several reasons. For one, it assumes that all Africans between the ages of 15 and 64 who work, or wish to work, are eligible for management posts. In practice, however, such positions commonly require post-school qualifications, along with significant experience in the workplace, which people under the age of 35 are unlikely to have acquired. Yet in 2002 – two years after the Employment Equity Act came into force – economically active Africans in the age cohort from 35 to 64 made up only 34% of the economically active population, making 34% a more realistic target for African representation at management levels. In addition, in 2001 only 276 000 Africans of working age held a degree or other post-Grade 12 qualification, making even a 34% target too ambitious.8 However, these salient considerations were ignored in the limited debate that surrounded the Employment Equity Bill.

Limited debate regarding the Bill

When the Employment Equity Bill was released and brought before Parliament for adoption, the government argued that the measure was needed to:

 ■ provide redress for the pervasive racial discrimination of the apartheid era;

 ■ put an end to current racism;

 ■ bring about the ‘norm’ of demographic representivity at all levels;

 ■ stimulate growth by expanding the black middle class and its purchasing power;

 ■ reduce black-white inequality; and

 ■ help stabilise society and prevent a revolt by the poor.9

The Institute of Race Relations was one of the few organisations to challenge the validity of these arguments. It warned against the Bill’s likely economic and other costs, and criticised its reintroduction of racial classification. It also cautioned against the way in which it ignored the skills deficit, saying this could jeopardise both private sector competitiveness and public sector efficiency. Though the Bill might benefit a relative elite within the black population, it would also limit direct investment, economic growth, and the generation of new jobs, thereby making it harder for the unskilled black majority to climb the economic ladder. In addition, demand for skilled black people was already very high in both the public and private sectors, and would expand even faster as the economy grew. Hence, policies aimed at increasing skills and stimulating the growth rate would help far more in providing opportunities for all South Africans and overcoming apartheid legacies.10

The Democratic Party – now the Democratic Alliance – described the Bill as ‘a pernicious piece of social engineering’, which ‘reinstated racial classification’ and would bring about ‘an entirely new system of bureaucratic meddling in the affairs of private business’. The Bill was in any case unnecessary, said Democratic Party leader Tony Leon, as companies were already ‘as anxious as they could possibly be to appoint more black staff to senior positions’. Added Leon: ‘Their company images depend on it today. They are prepared to poach staff from other companies and waste money on token appointments because of this anxiety. The reason why black advancement is not proceeding more rapidly is no longer mainly because of racism but because of the shortage of trained and skilled black recruits.’11

However, these concerns were disregarded by most commentators, who played down the Bill’s likely negative impact. In media reports, several human resource (HR) consultants claimed that the measure required ‘no more than good management and good HR practices’. ‘Good employment equity is part and parcel of good people management, and good people management leads to increased productivity,’ they said. The main effect of the legislation, they added, would be to ‘upgrade skills and improve access to … opportunities, thus removing disparities in jobs and occupation’.12

According to these HR commentators, the Bill was both reasonable and practical, for its emphasis was on ‘consultation and participative decision-­making’ and it was ‘not prescriptive’. The targets it required to correct the under-representation of black South Africans were nothing to be concerned about, for ‘the setting of targets was a familiar process for businesses, which already set targets for sales and manufacture’. The Bill was simply ‘a useful tool to help integrate the workforce of South African commerce, so that all people could compete equally and the legacy of the past could be overcome’. Moreover, the Bill was correct in recognising that ‘voluntary systems were ineffective’ and that ‘the state, rather than “the market”, must decide what’s best for business’.13

Many journalists echoed these assessments. A Business Day editorial (later reproduced in other newspapers) described the Bill as an ‘unobtrusive’ measure requiring no more than ‘the sensible affirmative action programmes good managers should be implementing in any event’. An article in the Financial Mail added that the Bill would play a vital role in requiring ‘employers to abandon irrational prejudices and, equally important, to undertake the planned training and development’ of black people.14

Business representatives at the National Economic Development and Labour Council (Nedlac) – an organisation established in 1995 to help reach agreement between the government, business and labour on social and economic policy issues – largely echoed these views. Though spokesmen for the private sector objected to provisions requiring business to narrow the ‘apartheid’ wage gap between management and unskilled workers, for the most part they endorsed the measure.

Vic van Vuuren, general manager of human resources at Sanlam and a representative of Business South Africa at Nedlac, said many companies were already doing what the Bill required. Hence, the law would simply ‘formalise’ their obligations and require other employers to follow suit. The Bill would generate no additional costs for business and would have little effect on employment levels since it required neither retrenchments nor the creation of new jobs. All it envisaged was ‘very healthy human resource plans’. HR management had not been given enough emphasis in the past and would now ‘have to be given the attention it deserved’, he said.15

The Institute of Race Relations, the Democratic Party, and a few other organisations that dared publicly to criticise the Bill were dismissed as racists by the government. President Nelson Mandela described them as ‘sirens of self-interest’, while the minister of labour, Tito Mboweni, said they were ‘short-sighted whites who wanted to cling to special and undeserved privileges’. The director-general of labour, Sipho Pityana, accused them of using ‘scare tactics’ that were ‘a figment of the racist imagination’. Various journalists took up this theme, saying that critics were simply seeking to protect white privilege and had opened themselves up to the charge of being ‘anti-transformation’.16

The government also took pains to reassure business that the fines envisaged in the legislation were no reason for concern. Said Mboweni: ‘These penalties should only worry the rogue employers who are hell bent on continuing their discriminatory practices. They should not worry the progressive companies that are serious about transformation, any more than you and I are worried about increasing penalties for road offences because, as responsible road users, we have no intention of violating the rules.’ The Department of Labour told Nedlac that the fines would apply only ‘for non-­compliance on administrative measures’, and business seemed willing to accept this reassurance despite the Bill’s clear wording to the contrary. Again, journalists were quick to take up the government’s theme, writing that ‘the fines would apply only if an employer … simply ignored the Act – if he refused to draw up an employment equity plan or apply it’.17 The Bill was thus enacted into law in 1998 and brought into operation the following year.

Implementation in the public service

In 1993 the ANC and other parties to South Africa’s constitutional negotiations had agreed that existing public servants would have their security of tenure guaranteed for five years after the transition to majority rule. Though this was not written into the interim constitution, which took effect on 27 April 1994, Mandela took pains to reassure the white minority that the new government needed their skills to make South Africa work. He appealed to them not to emigrate, but rather to use their expertise to help build up the country. Most white civil servants were glad to do so – for white attitudes had changed profoundly in the previous decade – prompting the ANC to acknowledge that ‘established state institutions … [had] by and large co-operated with the new government’. A small number of civil servants resigned rather than serve the ANC, but the majority remained in their posts and stressed their willingness to implement new policies. ANC concerns about possible hostility to its goals from the public service thus proved largely unfounded.18

However, implementing affirmative action in the public service was also vital to the ruling party because it paved the way for the ‘cadre deployment’, or appointment of party loyalists, which it saw as necessary to bring all ‘levers of power’ under ANC control. In 1995 the ANC thus began to say that the five-year ‘guarantee’ of civil servants’ posts would apply only until the government had completed a rationalisation study, while Mandela added that the public service would never be accepted unless it was more racially representative. In the same year, the government followed up by releasing a White Paper on Affirmative Action in the Public Service, which stressed the need for management to be 50% black by 1999. According to the white paper, every national and provincial department would have to draw up a detailed affirmative action plan and present annual reports to Parliament on progress in its implementation. Funds would also be required both for retrenchment packages and for the training of new appointees.19

After the final Constitution was adopted in May 1996, the ruling party began strengthening its grip on the machinery of state. In doing so, it relied heavily on a constitutional provision saying that the public service needed to be ‘broadly representative of the South African people’. However, it disregarded the remaining terms of the clause, which made it clear that the goal of increased representivity had to be balanced against other values and principles. Those listed in the Constitution include ‘ability’, ‘fairness’, the ‘efficient, economic and effective use of resources’, and the necessity of ‘responding to people’s needs’.20

The ANC also began to claim that ‘incumbent [civil servants] were “racists”, “obstacles to transformation”, “defenders of white privilege”, “apartheid-era dinosaurs”, or “disloyal to the new South Africa”’. These accusations were insidious and proved effective in undermining the morale of white civil servants. In addition, the ANC repeatedly stressed that whites were ‘over-­represented’ at management levels as they made up only 13% of the economically active population but held a far greater proportion of management posts. By contrast, Africans – who then made up 73% of the economically active population – were severely ‘under-represented’ in senior positions. Again, this analysis overlooked the youthfulness of the African population, along with the fact that only 1.5% of Africans had the post-school qualifications often considered advisable for management posts.21

Many knowledgeable white public servants deemed surplus to requirements found their careers blocked and less experienced individuals appointed over their heads. This contributed to an exodus of whites and increased the scope for the ANC’s strategy of cadre deployment. By the end of 1998 some 60 000 civil servants (almost all of them whites) had left the public service, while a further 60 000 departed soon thereafter. Soon the exodus of whites accelerated further, contributing to what the Department of Public Service and Administration later described as ‘an almost 80% turnover in senior management personnel across all national and provincial departments between 1994 and 2007’.22

This fast pace of change gave the ANC considerable scope to deploy its loyalists to many public service posts, so as to consolidate its control over the levers of power and so advance its national democratic revolution. But in many cases these cadres were appointed to their jobs for their commitment to the ruling party, rather than their skills, so helping to cripple effective governance. Deploying cadres in this way was also in breach of a clause in the Constitution stating that ‘no employee of the public service may be favoured or prejudiced only because that person supports a particular political party or cause’. In 2008 a High Court decision in the Eastern Cape confirmed that cadre deployment conflicts with this constitutional provision, but the ANC has yet to abandon the strategy.23

In practice, the ANC’s determination to bring the public service under party control has severely weakened the state’s ability to deliver goods and services, especially to the poor. As The Economist has noted, no country is likely to develop and prosper without a competent and ‘independent class of public servants’ who can detach themselves from their political, ethnic, or other loyalties. Given the skills and experience of the pre-1994 public service, along with the role it had been playing since the late 1970s in rolling out housing, electricity, and other services in many African townships, the state machinery that the ANC inherited in 1994 could well have served this purpose. Instead, as affirmative action and cadre deployment have accelerated, so the capacity of the public service has declined.24

In addition, writes Peter Franks, a former deputy vice-chancellor at the University of Limpopo, appointments to public service jobs have come to depend primarily on political connections, which means that ‘incumbents often spend their time garnering political favour and looking for their next position – the job becomes something one possesses, and not something one has to do’. According to Franks, affirmative action and cadre deployment have thus contributed to a ‘perfect storm … of poor management, deficient and partial decision-making … excessive staff turnover … and high levels of financial and administrative corruption’.25

Black representation in management

Targets for employment equity at senior levels in the public service have steadily been raised. The initial goal, as reflected in the white paper in 1995, was for senior managers in the public service to be 50% black by 1999. In 2003 this target was increased to 75%, to be attained by March 2005. By then, 30% of senior managers were also to be black women. By 2005 these targets had almost been met, for black people held 70% of senior management posts and black women 29%. Targets for black women were thereafter increased to 50%. This prompted Mpho Letlape, head of human resources at Eskom, to say: ‘Over the next five years, as it embarks on its R84bn infrastructure expansion programme, Eskom has to appoint two new staff every working day – and it is adamant that one of them will be a black woman.’26

In April 2014 the Commission for Employment Equity established under the EE Act published its 14th annual report on employment equity, covering the period from 2013 to 2014. This report found that, among ‘all government’ employers in this period, Africans held 69% of top management jobs, 63% of senior management posts, 67% of jobs at the ‘professionally qualified’ level (formerly termed ‘middle management’), and 79% of skilled jobs. If coloured and Indian representation was taken into account as well, then black South Africans held 84% of top management posts. They also constituted 78% of senior management, 82% of professionally qualified staff, and 90% of skilled personnel.27

Given the age and skills profile of the African population, these figures are remarkable. Take, for instance, the commission’s figure of 69% for African representation at top management level in government, which comes close to the total African share (75%) of the economically active population. Yet in 2013 economically active Africans within the 35-64 age cohort from which top managers can realistically be drawn made up only 36% of the total economically active population. In addition, in 2012 only 992 000 Africans (4% of those aged 20 or older) had any form of post-school training. Moreover, figures released by Statistics South Africa in April 2014 showed that half (54%) of young people between the ages of 15 and 34 had no work experience at all, while 47% did not have matric.28 Such factors confirm that a 75% target for African representation at top management level is far too ambitious – and yet this target has already come close to being fulfilled.

The public service must have dug deeply into the ranks of black South Africans aged 35 and more to attain so high a degree of black representation at this most demanding level of management. This, in its turn, makes it all the more surprising that African representation at senior management levels – and among professionally qualified and skilled staff – has also come so close to demographic representivity. Overall, the commission’s figures point to an astonishingly fast pace of affirmative action in the public sector. This seems to have been achieved in three ways: first, by implementing rigid racial quotas rather than the more flexible ‘numerical goals’ mandated by the Employment Equity Act; secondly, by appointing black people without the necessary skills and experience; and, thirdly, by leaving posts vacant where no suitable black candidates can be found.

The use of racial quotas

The extent to which one government department – the South African Police Service (SAPS) – has been using rigid racial quotas, rather than ‘numerical goals’, came to the fore in 2012 in litigation before the Labour Court in Johannesburg. The case was brought by Jennila Naidoo, an Indian woman with 24 years’ experience in the police, whom the SAPS had refused to appoint to the post of cluster commander in Krugersdorp (Gauteng). Instead, this ‘level 14’ post had gone to an African male with an assessment score below that of Naidoo.29

When the matter came to court, the SAPS explained that its employment equity plan was based on the 2001 census, which showed that the population was 79% African, 9.6% white, 8.3% coloured, and 2.5% Indian. Its target for Indian representation was thus 2.5%, while its target for women was 30%. Since there were 19 positions to be filled at level 14, ‘the calculation for Indian females was 19 x 2.5% = 0.5 positions to be filled by Indians, then 0.5 positions x 30% [the female target] which equals 0.1 Indian females and that is rounded off to zero’. The ‘ideal’ position for the SAPS was thus to have no Indian women at all at level 14 – and that was why Naidoo could not be appointed.30

The Labour Court disagreed. Handing down his ruling in February 2013, Acting Judge Salim Shaik said the effect of the police’s employment equity plan was to deny Indians (and particularly Indian women) any representation at all at this senior level. It thus created ‘new de facto barriers to employment’ and resulted in discrimination on the grounds of both race and gender. This was contrary to the Constitution and the Employment Equity Act, which called for ‘equitable’ representation and a ‘contextualised approach’, rather than a ‘formulaic, mechanistic approach’.31

Added Judge Shaik: ‘In many ways the numeric target presents itself as a quota rather than a target … In terms of the Equity Act, employment barriers are prohibited. And so are quotas … It is … crass to say that the ideal for the appointment of Indians … is zero. This is to undermine the constitutional objective of non-racialism and non-sexism as it constitutes an absolute barrier that is based on a prohibited ground. It also has the unfortunate consequence of promoting cynicism and bringing affirmative action as a remedial measure into disrepute.’32

The court found that Naidoo had been discriminated against on the grounds of both race and gender, and ordered the SAPS to appoint her to the post with retroactive effect. It also instructed that ‘the absolute barrier’ to the appointment of Indians in the upper echelons of the police should ‘be removed and forthwith’.33 However, so entrenched is the use of rigid racial quotas in the police – and elsewhere in the public service – that this judgment is unlikely to put an end to the practice.

Inappropriate appointments

At the time of the political transition, the South African public service was less efficient than it should have been. Nonetheless, according to Gavin Woods, director of the Anti-Corruption Centre for Education and Research at the University of Stellenbosch, it remained ‘a stable, experienced and … functional sector that achieved most of its operational objectives, including ideologically controversial ones’. However, since 1994 the public service has ‘lost hard management experience and crucial institutional memory’, he says.34

Part of the problem has been the almost 80% turnover in senior management that took place between 1994 and 2007. Also relevant, writes Franks, is a provision in the Employment Equity Act allowing the appointment of black people with no proven capacity but rather the potential to acquire the ability to do the job. Says Franks: ‘This soon became the favoured loophole behind which kin, friends, and comrades were favoured over more competent applicants.’ Moreover, ‘even the possibility of on-the-job mentoring and training diminished as the voluntary severance packages (introduced in May 1996) … depleted the store of experience and expertise within the public service’. As early as 1998, a presidential review commission thus warned of the ‘undesired and serious adverse effects’ that were becoming apparent. These included a decline in staff morale and a decrease in state capacity, both resulting from the loss of skilled personnel.35

By 2007 criticisms of this kind were accelerating. According to former president FW de Klerk, there had been wide consultation and agreement on the need for affirmative action during the negotiating process from 1993 to 1996, but ‘there had never been any talk about imposing demographic representivity’. Nor had it been intended that ‘people without the appropriate qualifications would be appointed to posts merely on racial grounds’.36

Mamphela Ramphele, a former vice-chancellor of the University of Cape Town (UCT) and founder of AgangSA, added that the real purpose of affirmative action was ‘regstellende aksie’ (Afrikaans for remedial action). ‘It is intended to give a leg up to those with the potential to succeed who have been hobbled by apartheid. It does not mean putting an unskilled or inexperienced person in a position in which performance is impossible. Such actions that are driven by political-patronage objectives undermine our society’s ability to recruit and retain the best people in both the public and private sectors.’37

In 2008 the Institute for Security Studies warned of ‘a huge leadership gap in parastatals and the public sector’, along with ‘a serious lack of management capacity’, which was crippling the state’s service delivery plans. In similar vein, the Institute for Justice and Reconciliation (IJR) deplored the high vacancy rate and general inefficiency within the public service, saying the problem was not a lack of money but rather a lack of capacity to implement programmes. The IJR pointed out that budget allocations were made without considering who would carry out the work: ‘For quite a while there’s been a feeling that skilled people will somehow turn up. Yet what we’re witnessing is a high churn and juniorisation of posts, with the result of poor delivery.’38

In 2010 the Public Service Commission, an independent body established by the Constitution to monitor public service performance and promote efficiency, published a report on the ‘Effectiveness of Public Service Leadership’ in national and provincial departments. The report warned that ‘incompetent human resource managers, unskilled employees, nepotism, and hiring people without verifying their qualifications’ were retarding service delivery. ‘Rapid turnover at the top of the state is … destroying institutional memory and accountability,’ it said.39

In 2013 economist Iraj Abedian, chief executive officer of Pan-African Capital Holdings, had harsh words for the lack of skills at senior levels in both government departments and parastatals. Said Abedian: ‘At least 95% of our black executives cannot run the show and the one place where this is concentrated is in our parastatals and among our DGs [directors-general]. They have the title and it seems that employment equity has been achieved, but they don’t know how to do the job – not because they are not intelligent or able to. It’s just that they don’t have the experience.’40

Senior figures within the ANC and government have also begun to acknowledge the extent and salience of the skills shortage in the public sector. Shortly before President Jacob Zuma came to power in 2009, Mathews Phosa, then treasurer-general of the ANC, told FinWeek that ‘a culture of cadre deployment, coupled to affirmative action, had contributed to a significant brain drain in the public service’. These mistakes would have to be corrected via a ‘painful process’ of weeding out public servants who were not qualified for their jobs. In future, affirmative action would have to be ‘politically managed’ so that it no longer drove skilled people out of the public service or undermined the government’s capacity to implement its policies, he said.41

In 2011 the minister of public works, Gwen Mahlangu-Nkabinde, acknowledged that ‘the government was chronically short of capable and honest technocrats’. In 2012 Roy Padayachie, then minister of public service and administration, observed: ‘There’s a great amount of deficiency as far as skills are concerned.’42

Terence Nombembe, South Africa’s auditor-general from 2006 to 2013, has repeatedly bemoaned ‘the lack of skills’ within the public service, which ‘includes an inability to understand basic accountancy’, he says. As a result, only three out of 40 national government departments managed to achieve clean audit outcomes, free of material errors or omissions, in the 2010/11 financial year. No improvement in their audit performance was evident in the following (2011/12) financial year, while the next audit report by Nombembe – issued in March 2013 and covering some 530 state entities at national and provincial levels – showed a steady decline from the 152 clean audits achieved in 2009/10 to 132 in 2010/11 and 117 in 2011/12. Commented Nombembe: ‘Things are serious and … even more serious than we thought … They are serious because the people that are employed by government to do work are least prepared and equipped to do it. The situation is dire.’43

In 2014 a skills audit of the South African Broadcasting Corporation (SABC) showed that 60% of senior managers did not meet ‘minimum requirements’ for strategic thinking at an executive level; that 56% lacked ‘adequate competency’ in solving problems and making decisions; and that 35% showed a ‘disregard for financial information’. The skills audit added that, of the 842 job titles sampled, the qualifications of 577 employees were ‘incomplete’ or ‘not authentic’, or had been awarded by fly-by-night tertiary institutions. The audit also found that some 2 360 permanent employees, including 785 senior managers, had no tertiary training. It further questioned whether some 2 250 staff members had even a matric.44

The SABC’s acting chief operating officer, Hlaudi Motsoeneng, responded that the public broadcaster was ‘doing well and had the right management team in place’. But a couple of days later, a report released by the public protector, Thuli Madonsela, found that Motsoeneng himself had falsely claimed to have passed matric and had played a major part in what she described as ‘pathological corporate governance deficiencies’ at the SABC. Commented Business Day in an editorial: ‘The … deficiencies Ms Madonsela found at the broadcaster … are by no means unique to the SABC. They are typical of the symptoms that have presented with increasing frequency at a range of state-owned entities and government departments.’45

Skills shortages within the public service have often left the government with little choice but to rely on external consultants to get much of the work done. As a result, national and provincial departments alone spent R105 billion on consultants in a three-year period from 2008/09 to 2010/11. When this came to light in January 2013, The Times newspaper commented that it was ‘shocking and downright criminal’ that consultants (many of them skilled whites) had to be paid to do the work of already well-paid civil servants. Said the newspaper: ‘It defies logic that we are able to pay consultants billions at the same time as we complain about the lack of professionals in our public sector … We simply cannot afford to outsource the government’s key functions while we have permanent civil servants.’

The Times called on the minister of public service and administration to ‘explain the situation’, but Paul Hoffman SC, director of the Institute for Accountability in Southern Africa, was more blunt, saying: ‘The widespread use of consultants is due to the government employing incompetents. People are given jobs that they have no capacity to do.’46

City Press was also outspoken in its condemnation, saying in an editorial:

We, the public, employ around 1.3m public servants. It is a huge figure, one of the highest proportions of civil servants to population in the world. Go to any government department and you will see how much paper shuffling takes place. We spend a lot of money and employ many people in education, in health, and in running the state smoothly, but bang for buck is poor.

There … is [also] a parallel government of consultants doing the work of the 1.3m people for whom we pay R400bn (the state’s wage bill) a year. We are running two payrolls, yet the outcome is not an efficient or effective state …

As in other areas of public life, it appears the state is often fleeced. Double payments, consultants employed to oversee other consultants, and overruns on deadlines are but three [problems which have come to light] … What each case reveals is that the civil servants employed by government do not know how to govern.47

In October 2013 City Press gave some examples of the jobs that consultants had been employed by the state to do. One consultant had been paid R14 million to count cushions and Persian rugs, another had been paid R20 000 to proofread a one-page document, and a third had been paid R14 000 to install a DVD player in a minister’s car. One of the worst examples was the R68 million paid to a consultant to perform the duties of a chief financial officer incapable of doing the job. Still more disturbing was the R4.6 billion paid by the Gauteng health department to several consultants over three years, for the auditor-general was unable to establish whether any of the work had in fact been done.48

So serious is the skills deficit in the public service that recent Global Competitiveness Reports issued by the World Economic Forum have repeatedly flagged ‘an inefficient government bureaucracy’ as one of the ‘most problematic factors for doing business’ in South Africa. In 2008/09, this factor was rated fourth highest out of 15, ranking below obstacles such as ‘crime and theft’ (which ranked second) and ‘an inadequate supply of infrastructure’ (which ranked third). But by 2010/11, South Africa’s inefficient bureaucracy had emerged as the single most problematic of all 15 factors. This remained the case in 2011/12. It might have stayed the same in 2012/13 if rising concerns about ‘an inadequately educated workforce’ and ‘restrictive labour regulations’ had not weighed even more heavily on business.49

Vacant posts

In its 2010 report, the Public Service Commission criticised the large number of vacant posts (306 000 at that time) within the public service, urging government departments to do much more to recruit skilled employees. But by June 2012 the government was still unable to fill some 304 000 vacancies, leaving it with a vacancy rate of close on 20% (one in five posts) within the public service.50

The minister of labour, Mildred Oliphant, blamed the high vacancy rate on the limited pool of skills available in the open market, coupled with competition from the private sector. But also relevant, says Adam Habib, vice-chancellor of the University of the Witwatersrand, is the fact that the performance bonuses of managers within the public service partially depend on their success in fulfilling racial targets. Commented Habib in August 2013: ‘The public service has to meet its transformation quotas and the easiest way to do this is to stop replacing white bureaucrats who have left with other whites when a black replacement cannot be found, for the percentage of black employees will then automatically increase. “You fill your quota and you get your bonus – and we end up with service delivery in a bad state”.’51

In 2010 trade union Solidarity said it planned to bring a series of court cases highlighting the negative effects of the state’s refusal to appoint qualified whites to vacant posts. Its first case involved a police captain with 24 years’ experience, Renate Barnard, who had twice been refused promotion to a more senior post despite having been identified each time as the most suitable candidate. When this happened a third time, the post was withdrawn as being ‘not critical’ to the performance of the police, but this seemed simply an expedient way to explain a third refusal to appoint her.52

In February 2010 the Labour Court ruled in Barnard’s favour. It instructed the SAPS to appoint her to the post, saying its earlier refusal to promote her amounted to racial discrimination that the police had been unable to justify. An editorial in the Sowetan applauded the court’s decision, adding: ‘It was always absurd that the SAPS would not promote a qualified woman even when it could not find a suitable black candidate for the post. It is this type of short-sightedness that has resulted in many state institutions falling apart as a result of insufficient capacity.’53

However, the SAPS appealed against this ruling to the Labour Appeal Court, which overturned it in November 2012. Handing down the appellate ruling, Judge President Dunstan Mlambo said that appointing Barnard to the post would have ‘aggravated the over-representation of whites’ at the level in issue (level 9) and ‘represented a step backwards’. In addition, the national commissioner was not obliged to fill an advertised post, and the lower court had erred in finding that the failure to appoint Barnard ‘compromised service delivery’.54

Barnard appealed to the Supreme Court of Appeal (SCA), which overturned Judge Mlambo’s findings in November 2013. Handing down the SCA’s ruling, Judge Mohamed Navsa, acting deputy president of the court, said Barnard had been discriminated against because ‘she was a white female’, which meant the onus lay on the police to show that this was fair. The SAPS had argued that appointing Barnard would ‘violate’ its employment equity plan, but Navsa said ‘this attitude would turn [the] numerical targets [required by the EE Act] into quotas, which are prohibited’. In addition, although the Constitution required ‘broad representivity’ in the public serv­ice, it also stressed the need for efficiency and for appointments to be based on ‘ability, objectivity, and fairness’. Overall, said Navsa, the SAPS had failed to establish that ‘the discrimination complained of was fair’, which meant the decision of the Labour Appeal Court could not stand.55

Added Navsa: ‘Dealing with race classifications, as is necessary under the Employment Equity Act, feels almost like a throwback to the grand apartheid design … [Given the country’s history], it will take a continuous and earnest commitment to forging a future that is colour blind … For now, ironically, in order to redress past imbalances with affirmative action measures, race has to be taken into account. We should do so fairly and without losing focus and reminding ourselves that the ultimate objective is to ensure a fully inclusive society.’56

The SCA judgment may help put an end to the state’s common practice of allowing key posts in the public service to remain vacant rather than filling them with qualified whites. However, the SAPS has appealed against the appeal court’s ruling to the Constitutional Court, and much now depends on how the latter court decides. In addition, the practice of blocking the appointment or promotion of white candidates is so pervasive in a host of public service departments that it may require a number of successful court challenges to bring it to an end.57

Employment equity and cadre deployment

As earlier described, employment equity in the public service has also opened the way for cadre deployment – the ANC’s policy of appointing party loyalists to key positions at all tiers of government, so as to consolidate the organisation’s control over all levers of state power.58

In 2012 a report by the Human Sciences Research Council (HRSC), a state-funded research agency, warned that ‘the ANC’s deployment strategy systematically places loyalty ahead of merit and even of competence and is therefore a serious obstacle to an efficient public service’. The report added that ‘politically connected incompetent people are often deployed to public positions, leading to a demoralised public service’. It went on: ‘Incompetent and unqualified people are unable to deliver services efficiently and effectively. Competency and ethical standards are critical … for an effective public service.’59

ANC leaders have belatedly begun to acknowledge some of the problems flowing from cadre deployment. In November 2010, for instance, Malusi Gigaba, then deputy minister of home affairs, was scathing about its negative effects at local government level, saying: ‘Some of the people deployed as mayors, speakers and chief whips are clearly incompetent to occupy these positions … Yet when they buckle and fail to perform … they become arrogant and big-headed, [knowing] they will be shielded by those who deployed them … The greatest injustice is committed when patently incompetent and unqualified people are deployed into administration as municipal managers, chief financial officers, and heads of … technical services.’60

In April 2012 the minister of sport, Fikile Mbalula, admitted that the ANC had been deploying cadres into ‘positions of serious responsibility and authority without adequate education’. The following month the ANC’s secretary-general, Gwede Mantashe, spoke of the problems which had arisen from ‘deploying inexperienced ANC cadres to bureaucratic posts commanding huge and complex budgets. “It is like taking a mouse from the bush and making it run a cheese factory”,’ he said.61

Despite such admissions, the ANC’s supposed solutions to the problems of cadre deployment are to restrict it at local level and tighten up its deployment procedures elsewhere so as to make them more ‘objective and transparent’, as President Jacob Zuma has put it. At its policy and national conferences at Midrand and Mangaung (Bloemfontein) in 2012, the ANC also undertook to equip its cadres with appropriate skills by means of a new cadre development strategy to be implemented over the next ten years. According to Lindiwe Sisulu, minister of human settlements in the second Zuma administration, the ANC now wants ‘cadres who will be our soldiers against maladministration, fraud, corruption, and unethical behaviour’.62 However, similar pledges have previously been made to generate ‘new’ cadres of this calibre, but have proved ineffective in improving either cadre quality or the efficiency of the public service.

Affirmative action allowed to trump key needs

National infrastructure

The 2014 Budget Review committed the state to spending R847 billion on infrastructure over three years. In practice, however, and despite the urgent need to expand the country’s infrastructure by building new power stations and upgrading transport infrastructure, in particular, a major shortage of technical and management skills continues to limit progress.

In October 2011, in his Medium Term Budget Policy Statement, the then finance minister, Pravin Gordhan, acknowledged that the major challenge in getting the infrastructure expansion plan off the ground was ‘the absence of capacity to plan, contract, and execute infrastructure budgets’. In June 2012 Trevor Manuel, then minister in the presidency: national development commission, added that ‘the large sums allocated by the government for infrastructure each year are routinely rolled over because of a lack of capacity to get projects off the ground’.63

Group Five, a major construction company, agreed with Manuel, saying: ‘If you go back five years and read Manuel’s budget speeches, they were full of infrastructure with very big numbers, but not much of it has translated into the order books of the private sector … All that happens is that the numbers get bigger every year and they talk about the same projects, and those projects are still there and they haven’t been done.’64

This lack of capacity within the state has been made worse by a major loss of engineering skills. In 1990 about 40% of certified engineers worked in the public sector, but by 2012 this proportion had dwindled to some 15%. According to Consulting Engineers South Africa (Cesa), engineering experience is now virtually ‘non-existent’ in state procurement. This means that ‘we don’t have people in government who can make the big decisions’ on infrastructure projects, Cesa says.65

In 2013 net investment in infrastructure, by both the government and parastatals, amounted to a meagre 3.5% of GDP. But the state needs to spend ‘at least three times as much on new projects to kick-start the economy’, says Nedbank senior economist Nicky Weimar. At the core of anaemic economic growth over the past seven years, she adds, ‘lie infrastructure backlogs across the board, from power and energy supply to transport and logistics … A consequence of these infrastructure constraints is that the cost of production has been driven higher, contributing … to a loss of international competitiveness among local producers and restricting fixed investment by private companies.’66

In 2014 the National Treasury again acknowledged ‘weak planning’ as ‘one of the biggest obstacles to the successful implementation of infrastructure projects’. To overcome this, the government needed to have ‘experienced professionals in departments’. However, it faced ‘serious challenges’ in recruiting experienced engineers, architects, and quantity surveyors, while the people who did apply for such posts had ‘very limited post-qualification experience and none in the state’s infrastructure delivery management system’.67

Service delivery by local authorities

In 2008 the South African Local Government Association (Salga), a body established under the Constitution to act as the voice of local government, commissioned a study of the skills of the country’s local councillors. This study found that some 8 000 councillors (nearly 80% of the country’s roughly 10 500 councillors) had only a primary school education.68 Though these councillors were to be sent for adult education – a form of training aimed primarily at imparting basic literacy and numeracy skills – it was doubtful whether this could adequately equip them for their task of overseeing municipal service delivery.

Many local government officials and managers also lack suitable skills. This, coupled with a major exodus of engineers from many local authorities since 1994, has resulted in the virtual collapse of local government services in most small towns and villages. In many of these areas, as the president of a business association said, ‘sewerage often runs down the street, street lights don’t work, roads are disintegrating, refuse is not collected, water supply is erratic, and water from taps is unsafe’.69

In 2009 Mathews Phosa lamented that local government was ‘now in ICU’ because of the mistakes the government had made on affirmative action. In the same year, the new minister of co-operative governance and traditional affairs in the first Zuma administration, Sicelo Shiceka, said he planned to visit all 283 municipalities as soon as possible, for many of them were widely seen, even by ANC supporters, as ‘incompetent, disorganised, uninterested, and ridden with corruption and maladministration’.70

The following year Shiceka said he was pushing ahead with legislation that would prohibit office bearers in political parties (the secretary or treasurer of the local ANC branch, for instance) from becoming mayors or municipal managers. In May 2010 the Cabinet approved a bill to this effect. According to Shiceka, the main intention behind the measure was to ensure that skilled people were appointed to municipalities. Zuma added that the change would help rid the public service of ‘the lazy and incompetent’.71

Opposition parties welcomed the proposal, but the Congress of South African Trade Unions (Cosatu) – a trade union federation allied to the ANC and the South African Communist Party – objected that the measure would discourage officials from participating in party politics at local level. Mcebisi Ndletyana, a senior research specialist with the Human Sciences Research Council (HSRC), said the proposal was a ‘thorny issue’ for the ANC because the organisation had to balance improving service delivery against rewarding party activists. ‘Party activists have been employed in government as some kind of reward. The bill will limit the source of employment because some of these office bearers do not have the qualifications and the skills to get employment in the private sector,’ he said.72

Despite such criticisms, the Municipal Systems Amendment Act was adopted by Parliament in 2011. However, it was not until 2014 that the Act finally took effect, when regulations laying down competency requirements for municipal managers and other senior staff were gazetted. According to the new rules, municipal managers must have a bachelor’s degree in public administration, law, or social sciences, or an equivalent qualification. In addition, they must have five years of ‘relevant experience at a senior management level’ and ‘an advanced knowledge and understanding of relevant policy and legislation’.73

Given the extent of the skills deficit, it will not be easy to find individuals who meet these demanding criteria. Moreover, the regulations state that senior managers appointed before the new rules became operative are to continue in their posts until their contracts lapse or expire. This suggests there will be little improvement in the proficiency of senior municipal managers for a significant time.

In addition, soon after the new regulations took effect, a poll by City Press of municipalities in six provinces found that only 40% of municipal managers and 34% of chief financial officers had met a deadline (set by the National Treasury in 2007) to acquire appropriate qualifications similar to those now stipulated in the regulations. The Institute for Municipal Finance Officers deplored this situation, saying: ‘It is impossible to get … sustainable … service delivery if the financial management in a municipality is in a shambles.’74

In the interim, cadre deployment at local level has continued. Yet in May 2011 an article in the Financial Mail blamed cadre deployment and corruption for the growing malaise in local administration, saying: ‘Using municipalities as employment agencies for ANC cadres as well as dishing out corrupt tenders to companies without the capacity to deliver is mainly what has destroyed local government capacity.’ Transformation policies and ‘the push … to provide jobs for the politically connected’ had forced out hundreds of professionals with engineering and financial expertise, the report went on. In addition, the ANC seemed willing to tolerate corruption in procurement – and even to regard it as beneficial – if the firms that were awarded municipal contracts were prepared to donate to its coffers in return.

The consequences were now evident in the collapse of many municipal projects and services, the article continued. The government claimed significant successes in rolling out clean water, better sanitation, electricity, and refuse removal. ‘But this delivery record masks a bitter reality: many users do not enjoy access to these services as pipes and pumps are broken, refuse removal is infrequent, and pit latrines were improperly constructed so that they fill up too soon and become unusable.’75

Cadre deployment has also made it difficult to sanction senior municipal officials responsible for maladministration, the article warned. Even where offenders have been disciplined and threatened with dismissal, their political principals have often redeployed them to similar posts in other municipalities. Added the Financial Mail: ‘Hundreds of municipal officials fired from one ANC-controlled municipality for mismanagement, corruption, or abuse of power are often quickly rehired in others because they are cadres with strong connections to local politicians who use their influence to secure another deployment.’76

The Municipal Systems Amendment Act of 2011 and its accompanying regulations are supposed to curb this practice by placing a 10-year ban on the re-employment in any municipality of senior managers dismissed for financial misconduct, fraud, or corruption. However, these new rules became operative only in January 2014 and will take time to have an impact – assuming they are properly implemented at all.77

Financial management

In October 2009 Terence Nombembe, the then auditor-general, warned that roughly 80% of national and provincial departments were failing to keep the monthly records required by the Treasury, while 40% of them had no meaningful financial information at all. Partly as a result, national and provincial expenditure identified by Nombembe as ‘unauthorised, irregular, or wasteful’ rose to R20 billion in 2010/11 and increased even further to R25 billion in 2011/12 before declining slightly to R24.7 billion in 2012/13.78

A lack of relevant skills plays a key part in this malaise, as Nombembe has repeatedly pointed out. According to him, the root of the financial mis­management and waste he has uncovered lies in ‘the appointment of inadequately skilled people to crucial positions, particularly in finance’. Says Nombembe: ‘Unless we fix that, most of the problems we have are never going to go away.’ 79

Nombembe’s audit report on municipal finances in the 2011/12 financial year painted a bleak picture, showing that financial management at local level had generally deteriorated since 2009. Nombembe once again identified the skills shortage as a key reason for poor performance, saying that 73% of municipalities (up from 70% the year before) had vacancies in one or more of their three most important posts – municipal manager, chief financial officer, and supply chain management chief. Moreover, where such posts were filled, one-third of them were occupied by people who lacked the right skills. This opened the system up to corruption, especially in pro­curement. Unauthorised and irregular spending had thus risen yet again, while an increasing number of councillors and officials were running businesses on the side to which municipal contracts were then awarded.80

In 2013 research by the Mapungubwe Institute for Strategic Reflection said that a lack of skills among local councillors also played a major part in poor performance. A ‘substantial number’ of councillors were ‘employed into positions for which they were not qualified’, it said. Moreover, because most councillors lacked professional qualifications, they were ‘dependent on political office for an income’ and full of anxiety that they might not be redeployed into such posts in the future. Accordingly, many councillors ‘used their positions for self-enrichment’ by influencing the allocation of municipal contracts in their favour and ‘building themselves a nest’ in case they lost office in the future.81

In December 2013 a new auditor-general, Kimi Makwetu, was appointed to replace Nombembe, whose seven-year term of office had expired. Makwe­tu’s diagnosis of the reasons for poor performance remained essentially the same, for in February 2014 Makwetu told Parliament that ‘a large number of senior managers in charge of government finances were not competent enough to occupy their positions’. He added that ‘most senior finance managers failed to meet required competency standards’, while a number of chief financial officers had been appointed without the necessary training in accounting. This weakness lay ‘at the heart’ of poor financial management in the public service.82

Water and sanitation

Since 1994 the treatment of sewage and other waste water has declined to a disturbing degree. In 2008 the Water Research Commission conducted a survey of 80 small and mainly rural water-treatment plants, finding that most of them were badly run. The commission blamed the problems it encountered not only on inadequate funding and poor monitoring equipment but also on a lack of skills. ‘A lot of the operators have only Grade 10 or a matric. This means they can cope with the basics of operating, but they cannot fix problems … In addition, the lack of monitoring equipment means that many plants only find out there is a problem when people start falling ill.’83

Also in 2008, Anthony Turton, a senior water researcher at the state-­funded Council for Scientific and Industrial Research (CSIR), warned that South Africa’s water quality was ‘deteriorating fast’. There was also limited expertise available to rectify this, as half the country’s municipalities lacked even one qualified engineer. Turton added that toxic cyanobacteria was already present in many of South Africa’s river systems because domestic and industrial effluent was being inadequately treated. ‘Cyanobacteria produces a group of toxins which are present in South Africa’s water to an alarming extent, and have already resulted in the fatal poisoning of livestock and game. Though there have been no human fatalities to date, the effects of long-term exposure to the poison are unknown,’ he warned.84

Turton had been scheduled to deliver a conference paper on the gathering water crisis, but was instead suspended by the CSIR and charged with insubordination. However, much of his paper had already been circulated and was publicly available. An editorial in Business Day commented that the most alarming aspect of Turton’s paper was that the demand for technical ingenuity in responding to the water crisis far outstripped supply. ‘What he really means (and probably the reason he has been suspended) is that white engineers have been run out of jobs in municipalities. [Hence,] many poor towns no longer have any capacity to process water and thus protect their citizens from disease.’85

In 2009 the Department of Water Affairs introduced ‘blue drop’ and ‘green drop’ reports to monitor the treatment of drinking water and waste water respectively. In 2009 the average national score on the blue drop report on drinking water was a meagre 51%, but this improved to 73% in 2011 and then to 88% in 2012. However, the treatment of waste water remains poor. Though the green drop report for 2011 (the most recent available) put the national average score at 71%, it also acknowledged that more than half (56%) of the 821 waste systems it monitored scored less than 50%. In addition, the number of waste systems with this poor level of performance had doubled since 2009. Overall, 143 waste systems (17% of the total) were performing poorly, while 317 (39%) were in a critical condition.86

In 2013 the Democratic Alliance reported that 26 Free State towns, including Bloemfontein, the seat of the Supreme Court of Appeal, were without running water or had constant supply interruptions. In August 2013 all water was cut off for two weeks from Grahamstown in the Eastern Cape, almost compelling Rhodes University to close. During the year, there were also persistent water shortages in Kimberley (Northern Cape), Krugersdorp (Gauteng), Rustenburg and Potchefstroom (both in North West), and parts of Mpumalanga. In Mothutlung (North West) water supplies failed over the December 2013 holiday period, when a poorly maintained pump broke down and two badly neglected back-ups could not be made to work. This breakdown in supply, coming on top of previous disruptions, fuelled violent protests in February 2014 in which four people died. Breakdowns in water and sanitation services have often also played a part in sparking the approximately 500 public demonstrations (20% of them violent) that took place in a host of towns in the first two months of 2014.87

Underpinning these breakdowns in water supply are both failing municipal capacity and a shortage of skills at the Department of Water and Environmental Affairs. At the municipal level, only one engineer remains out of every seven employed by local authorities in the 1980s. As City Press reports, this exodus has largely been fuelled by ‘frustration and disillusionment among municipal engineers over political appointments in management positions with supervision over technical functions’.

The water affairs department itself is also chronically short of engineering skills. In May 2013 only 78 out of 280 civil engineering posts were filled, while only seven out of some 50 senior managers had engineering qualifications. The skills crisis was also set to worsen, as half of the most senior engineers were due to retire in the next five years and it would be difficult to replace them. In addition, fewer and fewer technicians were being trained, so water pipes were not being maintained and leakages had increased to the point where small municipalities were losing around 73% of the water they pumped.88

In 2011 the South African Institution of Civil Engineering (SAICE) highlighted the poor quality of sanitation across the country. It gave sanitation in major urban areas a rating of C minus and commented that ‘waste-­water leakage and spillage into major rivers was still too high’. Sanitation infrastructure in all other areas was given a rating of E minus or ‘unfit for purpose’. This rating meant that infrastructure in these areas ‘had failed or was on the brink of failure, exposing the public to health and safety hazards’. In 2014 SAICE added that the lack of water infrastructure maintenance was now ‘leading to people dying’.89

Combating crime

South Africa’s murder rate has halved since 1994, partly because of a sharp decline in political killings since the transition. It nevertheless remains very high, at 31 per 100 000 people in 2012/13, which is twice the average of 17 per 100 000 for Africa as a whole at this time. Moreover, though the budget for police services has increased from R6 billion in 1994 to R67 billion in 2014 (a rise of more than 1 000%), conviction rates as a proportion of reported crimes have remained low, at around 14%.90

Many factors have contributed to the ineffectiveness of policing since 1994. These include the ANC’s downgrading of the detective service, which prompted a spate of resignations and left the police short of some 30 000 detectives. Further damage has resulted from the repeated restructuring or disbanding of specialist police units, along with a persistent failure to counter growing corruption and criminality within police ranks.91 However, affirmative action has also played a major part in declining police efficiency.

When the ANC came to power, one of its key goals was to make the police more racially representative, especially at senior levels where whites predominated. Experienced white policemen were thus encouraged to resign, while black policemen, some of whom had little practical expertise, were leapfrogged up the command chain. In addition, though the first national police commissioner appointed by the ANC government was George Fivaz, an experienced police officer, each person since appointed to this key post (Jackie Selebi, Bheki Cele, and now Riah Phiyega) has been parachuted into the SAPS without policing expertise or operational know-how. These individuals seem to have been appointed for their political loyalties rather than their competence in fighting crime, which has undermined efficiency and morale still more.92

In 2007 a previous minister of police, Charles Nqakula, was forced to acknowledge that ‘many policemen were not up to the job’ and that police management at station level was particularly inadequate. In the same year, he admitted that about a hundred station managers would have to be replaced. However, Johan Burger, senior crime analyst at the Institute of Security Studies, warned that the problem was in fact far worse, saying: ‘Most of the country’s police stations are headed by inexperienced and inadequately trained police officers, most of whom have been employed simply to reach national equity targets.’93

Burger also cautions that murder (and other) crime rates that have dropped are likely to start rising again unless police efficiency improves. ‘Criminals have a poor perception of the police,’ he says. ‘They see the police as inept (unable to shoot straight) and corrupt (willing to make dockets “disappear”), and know they lack experienced investigators and a strong, independent, national operational commander.’ In addition, skills shortages at forensic laboratories have grown worse, delaying the completion of DNA and toxicology tests for up to five years in many instances.94

In 2014 Gareth Newham of the Institute of Security Studies commented that political interference in the SAPS had stymied its ability to achieve what its substantial budget ought to have made possible. Too many inappropriate and irregular senior police appointments had been made over the years. Added Newham: ‘The damage that disgraced former national commissioners Jackie Selebi [convicted of corruption] and Bheki Cele [dismissed for corruption] and crime intelligence head Richard Mdluli [soon to face charges of fraud and other crimes] caused during their tenures cannot be underestimated. This not only undermined the ability of the SAPS to promote a professional policing ethos, but substantially weakened systems for internal accountability.’ 95

Government denials

The government generally denies that affirmative action has undermined public sector capacity or that any public servants have been displaced to make way for ‘equity’ appointees. But in February 2007 a senior ANC provincial office-bearer in the Western Cape, Marius Fransman, broke ranks by warning that the skills shortage was undermining administration. He proposed a three-year moratorium on affirmative action as this would make it possible to ‘appoint white scarce skills’.96

However, this suggestion was quickly rejected by Manuel, then finance minister, who said: ‘The Employment Equity Act is there. In its practice it is frequently very poorly used. It is sadly abused but it is there and the intent of the Act is abundantly clear.’ The then minister of labour, Memba­thisi Mdladlana, added: ‘Affirmative action and employment equity legislation will never be repealed but will be intensified instead.’97 The government’s determination to intensify affirmative action is now reflected in recent amend­ments to the Employment Equity Act, as described in due course.

In the interim, the National Development Plan (NDP) – supposedly the country’s policy blueprint from now until 2030 – has put great emphasis on the need to overcome skills shortages in the public service and build ‘a capable developmental state’. Manuel, who chaired the commission that produced the NDP, has also repeatedly stressed the need for increased state capacity. In 2012 he said: ‘Talking about a developmental state makes no sense if it is incapable of delivery to its citizens – you first have to build a “capable state” staffed by competent people.’ In 2013 he returned to this theme, warning that none of the NDP proposals to boost growth and jobs would succeed if the public service continued to ‘misfire’. Added Manuel: ‘So the clarion call is: let us fix the engine room.’ Implementation of the NDP would critically depend on ‘fixing the machinery of the state, so that it delivers efficiently’.98

Manuel’s emphasis on the need to ‘fix the engine room’ is significant. However, little can be achieved for as long as the ANC remains committed to cadre deployment and racial quotas unrelated to the skills and age profile of black South Africans. Strong vested interests have also grown up around the existing rules, making it difficult to bring about change. As Gordhan said in his budget speech in February 2013: ‘Too many people have a stake in keeping the system the way that it is.’99

Implementation in the private sector

In 1998, when the Employment Equity Bill was before Parliament, the Institute of Race Relations questioned the various assumptions on which it was based. The Bill assumed that demographic representivity was the norm, and so required that this target be attained. It further presumed that the key problem to be addressed was a racist refusal by the private sector to appoint black people at senior levels, when the real difficulty was the huge skills deficit within the country. There was thus no need for legislation to force whites to hire blacks. The key need was rather to increase black skills and foster rapid rates of economic growth. The faster the economy grew, the more demand there would be for skilled people of all colours – and the more quickly any remaining racist prejudice or practice would be eroded.100

In the parliamentary debate on the measure, the Department of Labour sought to downplay the significance of the skills shortage. However, it also inserted a key clause into the Bill that put the onus on enforcement agencies to take into account the size of ‘the pool of suitably qualified [black] people’ from which the employer might reasonably be expected to promote or appoint. Mboweni also assured companies that they would not be expected to ‘grab a hobo off the streets’ and make him a director. Though firms would have to make ‘reasonable’ progress towards the state’s goal of demographic representivity, they would have some discretion in setting their own racial targets along the way, provided they did so in consultation with trade unions and employees.101

However, with the coming into force of the government’s black economic empowerment (BEE) codes in 2008, this flexibility was much reduced (see Chapter 5). Instead of allowing businesses to choose their own racial targets, the BEE generic codes put pressure on firms to increase black representation to 60% at senior management level, 75% at middle management level, and 80% among junior managers. However, given the age and skills profile of the predominantly African population (as earlier described), a 60% target for black representation at senior management is not easy to attain. In addition, many of the available skills have already been absorbed into the public service, where black representation among ‘all government’ employers generally stands at more than 80% at senior levels.102

Black representation in management

Despite these constraints, the most recent (14th) report of the Commission for Employment Equity shows significant black representation at all management levels among private sector employers. In 2013/14, black South Africans thus made up 21% of top managers and 32% of senior managers. In addition, black representation stood at 49% at the professionally skilled level and at 70% among skilled employees.103 These figures point to a major effort on the part of business to implement affirmative action despite the obstacles impeding this.

The Commission’s statistics are broadly similar to the figures compiled by a private human resources agency, P-E Corporate Services, which monitors affirmative action at some 850 parastatal and private sector firms cumulatively employing more than 1 million people. Reports by this agency show that the proportion of black people at senior management level has risen from 5% in 1994 to 33% in 2013, an increase of some 550%. Among middle managers, black representation has gone up from 7% in 1994 to 33% in 2013, a rise of some 380%. At junior management level, the proportion of black South Africans has virtually doubled from 26% in 1994 to 48% in 2013.104

The data compiled by P-E Corporate Services also shows that black penetration into management jobs has slowed significantly since 2010. This, the consultancy says, is because of severe skills shortages at these senior levels. So acute is the skills deficit that some 40% of employers offer premiums (of between 10% and 20% above established pay scales) to attract and retain black managers. In addition, many firms (57% in 2013) have experienced the ‘poaching’ of their black professionals. This is not surprising given that figures compiled by Adcorp, a private employment agency, put the number of skilled positions that could not be filled because of the skills deficit at close on 830 000 in March 2014.105

Accusations against private employers

While P-E Corporate Services has long identified the skills deficit as a key obstacle to the implementation of affirmative action, the Commission for Employment Equity seems to deny that the skills shortage even exists. In 2007, for instance, the then chairman of the commission, Jimmy Manyi (who was simultaneously president of a BEE lobby group, the Black Management Forum), dismissed the skills shortage among black South Africans as nothing but ‘an urban legend’. The challenge facing South Africa was not a shortage of such skills but rather the persistent under-utilisation of skilled black people by white-controlled businesses, he said. Manyi also questioned whether existing penalties for non-compliance with the Employment Equity Act were strong enough, saying a fine of up to 10% of annual turnover might be more appropriate to counter white racism.106

In August 2011 the commission’s then chairman, Mpho Nkeli, took a similar approach. Overlooking the limited number of black South Africans with the age profile, qualifications, and experience normally required for management jobs, she focused on the extent of white ‘over-representation’ in top jobs. Whites still comprised 76% of top management in private firms, which was ‘nearly six times’ their 12% share of the economically active population. At this rate, it would take 127 years for top management to become demographically representative, she charged. Nkeli blamed ‘the poor overall picture’ on ‘deep-seated racism in the business community’. The skills shortage might be true in some instances, but in general it was being used ‘as a blanket excuse’ by recalcitrant employers, she said.107

Taking its cue from Nkeli, the Black Management Forum asserted that ‘companies were not taking transformation seriously’. Oliphant added that ‘the snail’s pace’ of transformation was the result of ‘pure resistance by the captains of industries’, which meant that ‘drastic’ measures would have to be taken. Cosatu said that ‘apartheid still lived in the economy’, and that ‘it was a national disgrace’ that so little had been achieved.108

Few voices were raised in defence of business. Even a business representative on the commission agreed that corporate performance was ‘very bad’. An editorial in Business Day said the commission’s report made for depressing reading and that business remained ‘woefully dominated’ by whites. The government, the editorial went on, was ‘quite right’ in saying the pace of change must quicken, even though there were potential risks in using the legislative hammer to force change. Shareholders should thus take the issue much more seriously and ‘demand that companies adopt practical measures to speed up transformation’. If shareholders failed to do this, then the government would take the lead and ‘justifiably’ so, the newspaper said.109

When the Commission for Employment Equity’s 13th report came out in March 2013, the organisation’s then chairman, Loyiso Mbabane, said ‘the data trend’ showed little improvement in black representation. Hence, though some critics were urging a ‘sunset clause’ for affirmative action – which would see the policy phased out over time – Mbabane insisted that ‘the data cried out for a “sunrise clause” instead’. The minister of labour commented that ‘whites still dominated in leadership and managerial posts’ while black South Africans were ‘still being relegated to low-level jobs’, which was putting pressure on the government to intervene. ‘Do not force us to come up with legislation that will force you to comply with our equity laws,’ she warned. An editorial in The New Age, a newspaper widely seen as endorsing government views, added: ‘It is clear the softly-softly approach by the authorities in the implementation of employment equity has not worked … A government big stick approach is the only solution.’110

The commission’s 14th report elicited similar criticisms from Mbabane, who said that ‘transforming the [private sector] workplace was like “climbing a mountain that grows taller as you climb it”’. Oliphant lashed out at people who used skills shortages as an excuse, saying it was ‘unfair discrimination practices in the workplace that led to under-utilisation of the greater proportion of the productive population. It might be expressed in clever words like “lack of experience” … but in the end those at the coalface felt the racism and exclusion.’

But Cas Coovadia, acting chief executive of Business Unity South Africa (Busa), dismissed the idea that slow black advancement was ‘simply due to pure racism’ and urged the minister and others to start ‘unpacking the real reasons’ for it. Prime among these, as earlier noted, is the fact that Africans of an age (35 to 64) suitable for senior and top management posts make up 36%, not 75%, of the economically active population. In addition, only 4% of Africans have the post-school qualifications often needed for management posts, while 54% of young people between the ages of 15 and 34 have no work experience at all111 and cannot be considered eligible for management jobs.

Despite the salience of these factors, the government has pressed on with a ‘big-stick approach’, as urged by The New Age. Its recent changes to the Employment Equity Act can be traced back to 2009, when Manyi was appointed director-general of labour and began using his new post to buttress his earlier demands for stiffer fines and swifter enforcement. According to Manyi, it was virtually impossible for his department to enforce the EE Act because a company at fault could always sign a compliance order and so escape prosecution – which also explained why only three companies had been prosecuted in the past 11 years. Said Manyi: ‘We want to see a lot more prosecutions of companies that are not complying … Prosecution has been the last resort – it’s been more about persuasion. Now the tack is going to change.’112

In June 2010 Manyi was suspended as director-general of labour for misusing his position, but by then he had already been instrumental in drafting an amendment bill reflecting his views. The Employment Equity Amendment Bill of 2010 was thus approved by the Cabinet in December that year and put before Nedlac early in 2011. This bill was later superseded by another, drawn up in 2012, but the key features of the two measures are essentially the same – and it is the 2012 bill that has recently been signed into law.

Employment Equity Amendment Act of 2013

The Employment Equity Amendment Act of 2013 (the Amendment Act) was signed into law by Zuma in January 2014 and brought into force in August 2014. It makes a number of important changes to the relevant rules; and the most significant of these shifts are set out below.

Fewer defences

Under the current EE Act, the Department of Labour cannot issue a compliance order against an employer unless it first takes into account the size of ‘the pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees’. The department must also consider relevant economic factors in the sector, the financial circumstances of the employer, and ‘the progress made by other designated employers operating under comparable circumstances’.113

However, under the Amendment Act, the department may issue a compliance order without any prior consultation with a firm and without any need to prove that the business has failed to act reasonably in the light of all these factors. Moreover, the employer can no longer object against a compliance order to the director-general of labour, or thereafter appeal against it to the Labour Court. Instead, if he fails to comply with the compliance order within the period specified, the department may immediately apply to the Labour Court to have its order made an order of court.114

In addition, where the employer has allegedly failed to meet his racial targets, the department need not start by issuing a compliance order. Nor need it bother about the defences currently listed in the EE Act. Instead, it can go straight to the Labour Court to ask it to impose maximum fines starting at R1.5 million or 2% of annual turnover for a first such ‘offence’.

At this stage, the employer may ‘raise any reasonable ground to justify his failure to comply’, but the onus will lie on him to convince the Labour Court that his conduct is indeed justified. This puts the employer in a significantly weaker position than the earlier rules provided. In addition, the earlier defences were specific, while the new catch-all provision is vague. It may seem broader, but it will also allow the Labour Court to downplay factors (economic ones, for instance) that both it and the department were earlier obliged to take into account.115 In addition, it may not be easy for employers to discharge the onus resting on them when the Department of Labour seemingly remains convinced that the skills shortage is simply ‘an urban legend’. The government appears to think the same, for its ‘skills demand list’ for 2012-2013 states that the private sector has a shortage of only 128 managing directors and chief executives, 1 174 finance managers, 819 human resource managers, six financial services and bank managers, and 58 policy and planning managers.116

The shift in the onus of proof also suggests that the Department of Labour in fact has little wish to embark on the prosecutions earlier mooted by Manyi. Prosecutions take place in the criminal courts, with all the safeguards required by due process, and with the state having to prove all elements of an offence beyond a reasonable doubt. What the department has instead achieved via the amendments is the capacity to make accusations and thereby put the onus on employers to disprove them. Many employers will understandably be anxious to avoid the time, expense, inconvenience, and reputational damage of being brought before the Labour Court as ‘racists’ who have failed to implement the EE Act. This in itself will encourage the private sector to apply rigid racial quotas in much the same way the public service has long been doing. Yet the costs of this approach – in diminished efficiency, competitiveness, growth, and employment – are likely to be significant.

Regional or national demographics

The 1998 EE Act says that compliance with racial targets should be assessed by referring, among other things, to ‘the demographic profile of the national and regional economically active population’. This wording allows employers to take account of regional demographics where these differ significantly from national ones. This has particular salience for coloured people in the Western Cape, who make up some 52% of the economically active population in the province but only 11% of the economically active population at national level.117 Coloured people in the Western Cape could thus battle to find jobs or win promotions if the coloured quota in the province were to be set at the national level of 11%.

The amendments proposed in 2010 nevertheless seemed to require this, for they deleted all reference to ‘regional’ demographics, thereby indicating that national demographics would in future have to be applied in all parts of the country. This change was also in keeping with an earlier statement by Manyi that coloured people were ‘over-concentrated’ in the Western Cape and should move elsewhere if they wanted to find work.118

This proposed amendment evoked sharp criticism from many people, including Manuel – who accused Manyi of racism of the ‘worst order’. The furore prompted the government to rethink the matter, and retain the current clause with its reference to regional demographics. However, this gain is more apparent than real, for the Amendment Act also empowers the minister of labour to issue regulations specifying the circumstances in which either national or regional demographics are to be taken into account.119

In February 2014 Oliphant used her powers under the Amendment Act to gazette draft regulations stating that larger employers (those with 150 employees or more) should use national demographics ‘as a guide’ in setting racial targets for top and senior managers, along with professional employees. Targets for skilled, semi-skilled and unskilled workers should be based on an average of regional and national profiles, thus requiring a 31% target for coloured people in the Western Cape at these more junior levels. For designated employers with 149 employees or fewer, national demographics should be used for top and senior management, and regional demographics elsewhere.120

The draft regulations were also likely to harm Indians in KwaZulu-Natal, who make up roughly 11% of the province’s economically active population but only 3% of the national one. Indians throughout South Africa were also likely to be affected, as they already held more management and professional posts (9.5% at senior management level, for example) than their share of national demographics would allow – and could thus be seen as being ‘over-represented’ in many state entities and private firms.121

The Department of Labour initially denied that the draft regulations would prejudice coloured and Indian people, insisting that they ‘could not be discriminatory as the same yardstick is applied to all’. However, the minister later yielded to widespread condemnation, announcing in May 2014 that the proposed ‘guide’ had been withdrawn. Nonetheless, the government’s preference for national demographics is already evident in the decisions of some of its provincial departments.122

The Department of Correctional Services in the Western Cape, for one, has recently refused to appoint or promote several coloured people because its 9% coloured quota, based on national demographics, had already been exceeded. The department’s employment equity plan adds that coloured men are ‘grossly over-represented’ and stresses the need to accelerate the ‘down management … of our coloured colleagues’.

In 2013, with the help of Solidarity and the FW de Klerk Foundation, nine coloured employees challenged the validity of the department’s refusal to promote them, saying this contradicted both the Constitution and the EE Act. In the apartheid era they had been too black to warrant promotion, but now ‘they were classified as coloured’ and barred from promotion for that reason. Solidarity added that the department’s policy unjustly discriminated against a million coloured people, whom the ANC seemed to regard as surplus to requirements in the Western Cape.123

In October 2013 the Labour Court in Cape Town ruled in favour of the nine coloured employees, finding that all of them had suffered unfair discrimination. Judge Hilary Rabkin-Naicker ordered the department to ensure that both national and regional demographics were taken into account in future when deciding on equity targets.124 It remains to be seen, however, whether this ruling will suffice to persuade the department (and many other employers) to stop ‘managing down’ their coloured and Indian employees by refusing to appoint or promote them to senior posts.

Stiffer penalties

Under the 1998 EE Act, maximum fines for various ‘offences’, including a failure to fulfil racial targets, range from R500 000 for a first transgression to R900 000 for a fifth similar one within three years. Under the Amendment Act, by contrast, maximum fines for failing to meet racial targets are to start, for a first contravention, either at R1.5 million (three times the current maximum) or 2% of annual turnover, whichever is the greater. For a fifth similar contravention within three years, maximum fines will be either R2.7 million (again three times the present penalty) or 10% of annual turnover, whichever is the larger.125

Fines of this magnitude will also apply to designated employers who fail to adopt successive employment equity plans, implement any measures the director-general of labour has instructed them to undertake, or submit their employment equity reports to the Department of Labour every year.126

For less serious offences, the possibility of fines based on a proportion of turnover will not apply. Hence, maximum fines for employers who fail to analyse their workforces (so as to assess the degree of black under-­representation within them) will range from R1.5 million for a first offence to R2.7 million for a fifth similar contravention within three years. Fines of the same magnitude will also apply to designated employers who fail to keep prescribed records, assign senior managers to oversee their employment equity initiatives, put up workplace notices informing employees about the EE Act, or supply the director-general of labour with such information as he may request.127

The penalties set out in the Amendment Act are extraordinarily high. As the government’s own regulatory impact analysis has warned, such fines are high enough to push many firms into bankruptcy. Since net profits generally run at well below 10% of turnover, the penalties now laid down could contribute to ‘company contraction and retrenchments, and even company closure, resulting in job losses and negative impacts on economic growth’, the analysis warns. But the country cannot afford any increase in the unemployment rate, which has long hovered at around 25% on the official definition, which excludes discouraged workers no longer actively seeking jobs. Moreover, on the expanded definition which includes such individuals, the jobless rate rises to 37% in general and to 67% among young people aged between 15 and 24.128

Responses to the amendments

Business Unity South Africa, the voice of business at Nedlac, has generally endorsed the amendments. According to Busa, it matters little that they strip away current defences for employers, as firms will still be able to raise ‘any reasonable ground’ for any failure to meet racial targets. In addition, Busa supports the removal of current rights to object or appeal against compliance orders, saying it is important for the Department of Labour to be able to speed up enforcement procedures. Despite the major changes made, Busa also claims that the amendments ‘do not go any further than the [1998] Act’.129 In downplaying the harm likely to result from the changes, Busa has done less to defend business interests than the department’s own regulatory impact analysis, which warned that the new penalties could push many firms into bankruptcy.

One of the few businessmen to speak out against the amendments was Coenraad Bezuidenhout, executive director of the Manufacturing Circle, who said: ‘The Employment Equity Amendment Bill … heralds numerous changes that business warns against. Business will no longer be able to appeal against government compliance orders, may be taken to court more quickly and more regularly for non-compliance, and may be punished by punitive fines … The dictum that transformation needs economic growth [to succeed] appears to have been forgotten. Barely 40% of working-age adults in South Africa are employed at all, yet the government sees fit to tighten the noose around the neck [of private firms].’

Bezuidenhout warned that, unlike government departments, businesses do not work with budgets that ‘automatically get replenished every year. The worst case scenario for low productivity and high vacancy rates is not redeployment, but bankruptcy’. He cautions that employment equity ‘will simply kill off businesses and employment growth where demographic re­presentivity is [not easily] attainable’.130

Despite the salience of this warning, there were few objections to the amendments when they came before the National Assembly for adoption in October 2013. The only opposition party to vote against the Bill was the Freedom Front Plus, which said the changes could ‘cause irreparable harm to the country’s economy’. The Democratic Alliance endorsed the amendments, even though the party’s leader, Helen Zille, had earlier urged her caucus to oppose them because they ignored skills constraints (the ‘supply-­side crisis’) and ‘pretended that if demand was beaten into shape, outcomes would change and improve’. This approach, Zille warned, would ‘deter investment, kill jobs … and shrink the economy’, which would be ‘bad for black advancement’.

However, the DA’s parliamentary leader, Lindiwe Mazibuko, seemed unconvinced, querying what ‘substantiation’ there was for ‘the claim that the Bill would curb black advancement’. This exchange marked the beginning of an apparent caucus rebellion, which resulted in the DA’s voting for the amendments in the National Assembly, despite Zille’s views. Zille said the DA had endorsed the amendments by mistake, but clearly this was not so.131

Criticism of the DA grew, prompting Mazibuko to announce that her party had problems with virtually all of the amendments, including the proposed penalty provisions. The DA would thus push for various changes when the measure came before the National Council of Provinces (NCOP), the upper house of Parliament. But the NCOP refused to make these changes, prompting the DA to vote against the measure this time round. The amendments were nevertheless adopted with the support of the ANC and most other opposition parties.132

The ANC criticised the official opposition for its vote in the NCOP, saying the DA was trying to ‘protect the capitalist class, whereas the amendments aimed at protecting the working class, which was the ANC’s constituency’. At a debate on affirmative action organised by the Black Management Forum, Zille responded that employment equity requirements had not benefited the vast majority of poor ‘outsiders’ over the past 20 years, while the amendments would ‘kill growth and jobs and accelerate the economic exclusion of the majority’. The amendments were also ‘Verwoerdian’ in their insistence on racial quotas.133

But Enoch Godongwana, chairman of the ANC’s transformation committee, countered that the ruling party would be ‘unapologetic in pursuing “Ver­woerdian” tactics, and would ‘unashamedly use quotas in every sector of the economy’. Commented Zille: ‘He seemed unaware that, in our democracy, Verwoerd’s methods are both unconstitutional and unlawful.’

Godongwana’s views were also echoed by several others at this gathering of the new elite. As Zille writes, many of them ‘rose to defend Verwoerd, saying he had lifted Afrikaners out of poverty through rigorous state intervention and … inflexible affirmative action to benefit “his” people. “We now need a leader who will do the same for our people”,’ they stressed.

The claim that Verwoerd used racial quotas to advance the Afrikaners is historically incorrect (as discussed in Chapter 4). However, it does provide an insight into the views of an expanding and influential black middle class, which has already benefited greatly from employment equity in the public service and is now pushing hard for the private sector to be opened up to it in the same way.

Ironically, writes RW Johnson, a journalist and former don at Oxford University, the EE amendments are ‘aimed pretty much exclusively at providing this already privileged group with more … employment opportunities’. By contrast, they have ‘absolutely nothing to offer the vast majority of Africans, from mineworkers to domestics’. For the truly disadvantaged, the existing legislation has simply resulted in worse service delivery, lower economic growth, and fewer prospects of finding jobs. With the relevant rules now being ratcheted up, these harms will increase. This negative outcome will far outweigh any help the amendments might bring to the relative elite.134