A new blackprint for affirmative action – City Press, 7 December 2014

As South Africans, we have a moral obligation to address the wrongs of the past. We need to take positive measures to ensure that individuals who have suffered a prior injustice are compensated.

However, race-based affirmative action is an unjust and ineffective way of achieving redress.

In its current form, it harms those who it seeks to benefit.

Fortunately, there is a palatable alternative that could uplift those who are genuinely disadvantaged.

Our Constitution openly declares that South Africa is a state founded on the value of non-racialism.

Non-racialism means that race is not something to be used to determine our value as human beings. It is a recognition of the fact that no one is better or worse because of the colour of their skin.

The immediate problem with race-based affirmative action is that it rests on a system of racial classification. It requires us to ask the same repulsive questions that were asked during apartheid.

How much “blood” from a particular race is needed to be “black”? Is one “black” parent or grandparent enough to be considered “black”? Would the same test apply to determine someone’s “whiteness”?

Race occurs on a spectrum, and allowing bureaucrats to allocate burdens and benefits based on arbitrary criteria for classification is repugnant.

Some analysts claim that the employees of companies and institutions ought to represent the racial composition of the rest of the population proportionally.

Hence, if 80% of the population is made up of those designated as “black”, then the same percentage of “black” people should be working in all sectors and levels of the economy.

However, racial clustering in certain sectors is not necessarily connected to past discrimination or injustice. Industries can become dominated by particular “racial groups” by chance.

In California, 90% of doughnut stores are owned by Cambodians randomly and there is thus nothing unjust in them having a disproportionate share in the industry. If racial quotas were applied, then almost all the Cambodians running doughnut stores would be forced to sell their businesses to members of other racial groups.

In the Western Cape, “coloured” people working in the department of correctional services have been deprived of promotions because they were “overrepresented” in the workforce, measured against the small percentage of “coloureds” living in South Africa as a whole.

This type of dispossession on the grounds of race smacks of the worst kind of racist social engineering.

A further issue with race-based affirmative action is that it is necessarily at odds with selecting the best candidate for the job. It is not the case that people of certain races are less qualified than others – such a claim is obviously false and racist.

However, the more weight a policy places on race, the less it places on merit. The same would apply if preference were applied on the basis of some other physical feature like height or hair colour.

Ironically, the main victims of the current system are the poor “black” and marginalised majority. The indigent are reliant on the state for many basic services, such as healthcare and education, because they simply cannot afford private schooling or private hospitals.

The implementation of racial quotas undermines the quality of government services and the poor have no choice but to bear the brunt of the very policies intended to help them.

South Africa’s priority should be to provide quality education and training to everyone to prevent disadvantage being entrenched. Unfortunately, given the dismal state of our education system, it is evident that this essential means of transformation is being overlooked.

Race-based affirmative action also undermines the achievements of those it seeks to benefit. “Black” individuals who were employed because they were the best-qualified candidates are forced to carry the stigma that they were chosen only to fulfil a quota.

An affirmative action policy should be designed to benefit those who are actually disadvantaged. Race is no longer an accurate proxy for disadvantage. While this may have been the case immediately after the political transition, there are now a number of upwardly mobile “black” people who are not disadvantaged.

A system that affords preferential employment on the basis of race instead of looking at actual disadvantage creates an elite class of people who are afforded opportunities to the detriment of those in genuine need. Those who have attended the best schools and universities, and happen to be “black”, will be selected over “black” people who come from impoverished backgrounds.

Fortunately, there is an alternative. Nonracial affirmative action affords everyone an equal opportunity in the workplace. It requires all insidious forms of discrimination to be rooted out of the hiring process and the workplace.

It encourages employers to reach out to marginalised groups and help them enter professions from which they were previously blocked.

It implores us to re-evaluate conservative notions of “merit”. If a child obtains a C for matric maths in an underresourced township school, this may well be worth more than an A helped along by hours of expensive extra tuition from a top private school.

Of course, marks are only one indicator and no guarantee of a good employee. A strong work ethic and determination in the face of hardship are desirable qualities for employers, and they should be taken into account when determining the best candidate.

In appropriate cases, it may be desirable to give additional preference to those who are disadvantaged. Disadvantage can be determined with reference to a bundle of socioeconomic indicators that take into account an individual’s financial and educational background.

The further advantage of this system is that it allows us to track transformation. A person can emerge from poverty and become successful, but they cannot be transformed into another race.

Beneficiaries won’t have to carry the stigma of being given a leg up because the assistance is not tied to something permanent and overt like skin colour.

Oppenheimer is a practising advocate and member of the Johannesburg Bar. Kok holds a law degree and works for the Friedrich Naumann Foundation for Freedom