When Does Affirmative Action in Favour of Certain Employees Become Unfair Discrimination Against Others?1

The paper is concerned with the practical question of the circumstances under which measures which might otherwise have amounted to unfair discrimination will amount to affirmative action and will therefore be lawful. It addresses a number of conceptual issues, including whether affirmative should be understood as a limitation on the right to equality or an expression thereof; and the differing interpretations of ‘discrimination’ by Langa DP and Sachs J in City Council of Pretoria v Walker, in both cases preferring the latter approach. Reviewing the relevant case law up to May 2000, it considers whether the approach laid down by the High Court in Public Servants Association of SA v Minister of Justice can survive the promulgation of the final Constitution and the Employment Equity Act. It also doubts whether the requirement of individual disadvantage in respect of affirmative action measures is (still) appropriate and suggests that underrepresentation of groups that suffered unfair discrimination is a preferable criterion.