Untangling discrimination in the private sector workplace in South Africa: Paving the way for Black African women progression to managerial positions

Introduction

Since the advent of democracy, South Africa has been divided along the lines of race, gender and class. This has led to the exclusion and oppression of Black African women in the workplace and within the society in general. According to the 2016/2017 Commission for Employment Equity (CEE) yearly report, there is reluctance and disinclination by the private sector in South Africa to redress the historical imbalances by perpetuating the white male dominance at managerial levels and excluding Black African women at these levels (CEE, 2016/2017, p. 87). Statistics South Africa (SSA) 2018 reported that 46 682 900 (80%) of the South African population are Black South African (22 786 200 males and 23 896 700 females), 5 074 300 (8.8%) are coloured population (2 459 500 males and 2 614 800 females),1 448 300 (2.5%) are of Indian descent (740 200 males and 708 100 females) and 4 520 100 (7.8%) are white South Africans (2 194 200 males and 2 325 900 females). Evidently, Black African women are the most populous, but notwithstanding this, they are greatly underrepresented at managerial positions in the South African private sector. This paper purposively focuses on the exclusion of Black African women in managerial positions.

In 2018, the South African High Court in the case of Chowan v Associated Motor Holdings (Pty) Ltd and Others (Chowan’s case) delivered a scathing judgment that unearthed that the Accounting Officer of Associated Motor Holdings (Pty) Ltd (AMH) had infringed the dignity of Ms Chowan by expressing that ‘she is a female, employment equity, technically competent, they would like to keep her but if she wants to go she must go, others have left this management and done better outside the company’ (Chowan’s case, paragraph 22). In this case, Ms Chowan was reassured that she will be appointed to the Chief Financial officer position subsequent to her 1 year of appointment as a Group Financial Manager at the company. However this reassurance did not materialise 3 years later, notwithstanding her wealth of working experience and possession of qualifications required for the Chief Financial Officer position. Instead, Ms Chowan was overlooked for the position of Chief Financial Officer and it was offered to a white man who lacked the necessary qualifications for the position. In its defence of its decision, the company expressed that Ms Chowan still needed to develop her management and leadership skills and this required 3 to 4 years. It is deduced from Chowan’s matter that her appointment was a front and amounted to window-dressing.This is prevalent in the private sector where women are hired and trained but overlooked when management opportunities are available.

The Chowan’s case highlights the prejudice of women in the workplace where based of partriachy and stereotype views that view them as being inferior to males. The patriarchal and stereotype attitudes towards women has a more deep history dating to the 20th Century where Black African women in particular were largely caregivers and restricted to taking care of their household activities. Moreover during the apartheid period Black african women were not appointed in leadership roles but rather in domestic and agricultural services (Akala, 2018, p. 238). During this period, black men worked in the mines as migrant labourers while many Black African women supported their families on their own by working in the fields to produce food (Hall and Posel, 2019, pp. 2–3). However, the depletion of food supplies in rural areas influenced black African women to migrate to the cities to seek employment where they were further subjected to exclusion in terms of gender, race and class (Hall and Posel, 2019, pp. 2–3). In terms of gender, women were predominantly confined to procreation roles and maintaining households (Akala, 2018, p. 228). In terms of race, Black African women were regarded as inferior beings and in terms of class, they suffered from lower levels of education and lack of employment opportunities (Akala, 2018, p. 228). These exclusions have resulted in Black African women primarily having access to inferior job opportunities in the informal sector with the lowest wages (Akala, 2018, p. 238).

The private sector companies during apartheid era perpetuated discriminatory practices by paying low wages to Black African women compared to black men, white men and women (Matotoka and Odeku, 2018, p. 37). Black African women who were employed to sew clothes and package products were not entitled to promotions and they remained perpertual workers (Matotoka and Odeku, 2018, p. 37). Similarly, Black African women in some companies received lower pension benefits compared to black males, white males and females (Mpeta, 2018, p. 2). Moreover, Black African female employees who were pregnant were likely not to be re-employed. It is deduced that being viewed as inferior and the lack of job opportunities for Black African women during the apartheid era contributed significantly to their underrepresentation in managerial positions both in the public and private sector as women were notably in jobs which were an extension of women’s traditional roles and not decision-makers (Akala, 2018, p. 238).

These imbalance and inequality were prevalent in the workplace (both public and private sector). But South Africa guaranteed equal rights through the enactment of the Constitution to eliminate all forms of inequalities both in society and the workplace. Within the workplace the Employment Equity Act (EEA) was enacted to ensure that the South African Labour force is reflective of the demographics of the country by requiring that previously disadvantaged groups are represented in all occupational levels. Essentially, it is expected that Black African women would be equitably represented in managerial levels and enjoy the same benefits. However, 20 years into the EEA’s enactment white male overrepresentation at managerial levels in the private sector persists and whilst suitably qualified Black African women are excluded (CEE, 2019/2020, p. 38).

Through the Commission for Gender Equality (CGE) and the CEE investigations initiated to determine the barriers that hinders the progression of Black African women in managerial levels in the private sector. These investigations were based on the principles of equality under section 9 of the Constitution of the Republic of South Africa, 1996 which challenges the private sector to eliminate gender and race inequalities. Section 9(3) stipulates that ‘the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth’.

Through these investigations the CEE found that for two decades, Black African women compared to white females and males and black males respectively were poorly represented in decision making positios in the private sector and were largely appointed at administrative levels (CEE, 2019/2020, p. 38). These findings were also confirmed by the CGE in 2019 where it was expressed that Black African women are less likely to be appointed at leadership roles in the private sector. (CGE, 2019/2020, p. 58). It is deduced from this that the EEA has not been successful in addressing the gender parity in managerial positions in the private sector since 1998.

Against this backdrop, it is argued that the monitoring and the implementation of the the EEA in the private sector is a significant challange (SSA, 2015, p. 60). This is perpertuated by designated employers who fail to submit employment equity reports to the Director-General of the Department of Labour as per section 21 of the EEA (CEE, 2019/2020, p. 1). Without these reports the Director-General of the Department of Labour is unable to track the implementation of affirmative action measures to redress imbalances and exclusion of previously disadvantaged groups in all occupational levels especially in the private sector.

It is submitted that the neglect and failure to strictly monitor and enforce employment equity in the private sector has resulted in most companies not prioritising employment equity to be the core of the company values and principles. The EEA permits that fines be issued and imposed on companies that are non-compliant with the equity measures. However, imposing fines for non-compliance with the EEA has not deterred the South African private sector companies primarily because such fines are budgeted for inadvance by the private sector. Consequently imposing a fine does not impact the company finances (Bezuidenhout et al., 2008, p. 25). It is against this backdrop that the private sector finds it easier not to appoint black African women in managerial positions. In other words, the enforcemet of the EEA has not promptedthe private sector to ensure equitable representation of black African women in all managerial levels in the workplace.

Consequently, black African women are still sharply underrepresented in the managerial positions in the private sector despite the introduction of the EEA since 1998. Their exclusion in key positions is not due to incompetency, but based on race, gender and class discrimination This study attempts to answer the practical question of why the application of the EEA has not practically influenced the South African private sector to be reflective of the demographics of South Africa at managerial positions. Moreover, this study seeks to contribute to the understanding and acceptance that the prohibition of quotas in the EEA is a legislative gap that contributes to the lack of equitable representation of previously disadvantaged groups such as Black South African women in managerial positions in the workplace.

The paucity of black African women in managerial positions in the private sector has an effect on South Africa’s international commitment to address non-discrimination in the workplace. In 1995, South Africa signed and ratified Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW) and through Article 11 of CEDAW, South Africa is required to take all appropriate measures to eliminate discrimination against women in the workplace.

As a signatory to CEDAW, South Africa is obligated to implement the appropriate programmes and interventions in the workplace that will eliminate all barriers that hinder gender equality. Similarly, South Africa must address the barriers that exist in the private sector that contributes to the paucity of Black African women in managerial positions.

Methodology

Methodically, the study adopted and utilised a qualitative research methodology. This research is library-based and relied on library and online materials such as textbooks, reports, legislation, regulations, case laws and schorlarly articles. To this end, information and insights from contemporary literature were used to address the identified problems. Through the contemporary literature, legal historical methods and jurisprudential analysis, proposed solutions were provided to address the underrepresentation of black Africans in the private sector. This study established the development of legal rules, the interaction between law and social justice, and proposed solutions or amendments to the existing law based on practical and historical facts.

Conceptual clarifications

There are concepts pertinent to the subject of this study and these include, black African women, equity, gender, managerial positions and transformation. Accordingly, the classification of persons in South Africa is highlighted in the EEA. Black people are defined in the EEA as Africans, Coloureds and Indians. Black African women are the most populous in terms of the South African population. Moreover, unlike women in other race groups, Black African women have been subjected to discrimination in terms of race, gender and class and this distinctive feature makes them vulnerable and more susceptible to further exclusions in the workplace. To this end, this study excludes Indian and coloured women and defines Black African women to mean African women of colour to the exclusion of coloureds and Indian women. Managerial positions for this study refer to senior management, chief executive officer, executive director, managing director, and top management levels in the workplace. The EEA requires equitable representation of previously disadvantaged groups in all occupational levels in the workplace. It is argued that occupational levels in the EEA includes managerial positions identified in this paper. Moreover, the Employment Equity Commission’s assessment of equitable representation involved levels including top management, senior management, professionally quailified levels and administrative levels. (CEE, 2019/2020, p. 38).

In terms of section 2 of the EEA, the purpose of the Act is to promote the constitutional right to equality and achieve equity in the workplace by applying affirmative action measures as required by section 9(2) of the Constitution. The EEA however does not define the concept equity and this concept is critical and forms the basis of this paper. Braveman et al. (2002) defined equity as social justice or fairness and asserts that it is an ethical concept grounded in principles of distributive justice. Oosthuizen et al. (2019) defined employment equity as ‘the employment of individuals in a fair and non-biased manner, thus to promote equal opportunity by eliminating discrimination in all employment policies and practices’. The aspirations of the EEA is to redress injustices of the past by implementing affirmative action measures to ensure that black African women are equitably represented in all occupational levels. Since the advent of democracy, South Africa has experienced the challenge of achieving equitable representation and effective participation of black African women at the top echelons of the private sector. This paper aligns with the definition of equity to mean a process of elimination of discriminatory employment practices to provide equal opportunities to previously disadvantaged groups.

Central to this study is the concept of Gender. According to UNESCO (2003), gender is associated with the roles and responsibilities of women and men founded by social norms, culture and families. Furthermore, the concept is recognised to include those social expectations of men and women because of their characteristics, aptitudes and behaviours. UNESCO (2003) argues that male domination and female subordination are socially constructed and therefore can be changed. From this premise, it is accepted that gender is not biologically predetermined, but socially constructed in line with societal expectations of men and women. To this end, a view that perceives Black African women incapable of functioning optimally in a managerial position but capable of assuming traditional roles such as being cleaners and messengers is an example of socially constructed roles placed on women.

Central to this paper is the concept of transformation in the workplace. According to Marus (2018), the concept of ‘transformation in the workplace’ refers to ‘a process to change the racial, gender and economic status of the workplace to reflect the South African population demographics’. The underlying rationality for advocating for transformation is for the workforce in the private sector to be reflective of the demographics of South Africa. This is key as Black African women are vulnerable and susceptible to economic exclusion and participation in decision-making positions in the workplace. From this premise, it is argued that based on section 9 of the Constitution there exists a constitutional imperative for transformation in the South African private sector’s managerial levels, to foster equal participation and non-discrimination, strengthened by affirmative action measures in the EEA. Against this backdrop, the paper defines ‘transformation in the workplace’ as a state of changing of programmes, policies, practices and initiatives in the workplace to ensure that all employees who have been disenfranchised due to past apartheid practices and patriarchy enjoy equal opportunities, fair treatment, respect and dignity.

Literature review

The affirmative action in the workplace find expressing through section 15 of the EEA. The aspiration of affirmative action measures is to achieve equitable representation of suitably qualified persons from previously disadvantaged groups in all occupational levels and to have the same opportunities in the workplace. To achieve this, Section 15(2)(b)(c) and (d) of the EEA respectively require the private sector to identify and eliminate barriers for the progression of previously disadvantaged groups; steps to foster diversity; providing reasonable accommodation for employees from designated groups; retention, capacitating designated groups through skills development programmes; and preferential treatment and setting numerical goals to realise equitable representation. (section 15(3) of the EEA).

The EEA has outlined the affirmative measures that must be implemented by designated employers to eliminate unfair discrimination and ensure the equitable representation of suitably designated groups in occupational categories and levels in the workplace. The EEA does not impose a quota system for representation of the designated groups in the occupational categories and levels in the workplace, instead, the EEA requires the designated employers to include preferential treatment and numerical goals in implementing these affirmative action measures (section 15(3) of the EEA).

The EEA provides that designated employers are not expected to adopt an employment policy or practice that would result in an absolute barrier for persons who are not forming part of the designated groups i.e white persons (Section 15 (4) of the EEA). It is submitted that this allows designated employers in the private sector not to commit to the elimination of unfair discrimination in the workplace because section 15(4) of the EEA provides the designated employers with ground not to change the overrepresentation of persons who are not designated groups in managerial positions. As such, it is conceivable that the private sector lags behinds in terms of black women representation because section 15(3) and section 15(4) of the EEA do not fully impose an obligation to change the current overrepresentation of white males at managerial positions in the private sector.

It is trite that the failure to establish a quota system in South Africa has its genesis to section 15 (3) of the EEA which specifically bars the application of quota to achieve equity. The argument against the quota system is that it is deemed to be inflexible and rigid, as such the preferential treatment and numerical goals are preferred than quotas in South Africa (Solidarity v Department of Correctional Services 2016(5) SA 594 (CC)). In the case of South African Police Service v Solidarity obo Barnard, the courts succinctly stated that the distinction between numerical goals and quotas lies in the flexibility of the standard. To this end, the court stated that quotas amount to job reservations that are prohibited in terms of section 15(3) of the EEA whilst numerical goals serve as flexible employment guidelines.

Moseneke ACJ in South African Police Service v Solidarity OBO Barnard [2014 (6) SA 123 (CC) observed that the rationale of affirmative action measures in South Africa is to progressively assist previously disadvantaged groups to access opportunities in the workplace, however these measures must not violate in an unjustifiable manner the right to dignity of those who were previously advantaged. To this end, it is argued that quotas are arbitrary, capricious and display naked preference in nature and have the effect of establishing an absolute barrier of previously advantaged persons. It is from this premise that the EEA disallows the application of quotas to achieve equity (para 32.).

The court majority judgment in Minister of Justice and Constitutional Development and Another v South African Restructuring and Insolvency Practitioners Association and Others 2017 (3) SA 95 (SCA) emphasised that ‘Affirmative action measures are designed to ensure that suitably qualified people, who were previously disadvantaged, have access to equal opportunities and are equitably represented in all occupation categories and levels' (Paragraph 29). The majority judgment further emphasised that ‘Due to our country’s history and the constitutional obligation, post democracy, to redress the past injustices, measures directed at affirmative action may in some instances embody preferential treatment and numerical goals, but cannot amount to quotas. In advancing employment equity and transformation, flexibility and inclusiveness is required’ (Minister of Justice and Constitutional Development and Another v South African Restructuring and Insolvency Practitioners Association and Others 2017 (3) SA 95 (SCA), para 29).

In a dissenting judgment, Madlanga J expressed that ‘before invalidating a measure meant to achieve substantive equality for being rigid, it must be looked at in context or in a “situation-sensitive” manner. It can never be a one-size-fits-all’ (para 80). Madlanga J views rigidity and its purpoted prejudice on white people as a ‘perceived disadvantage and is compensated for by their undeniable continued dominance at the final stage’. Madlanga J emphasised that there can never be any justification for white people, a small minority, to disproportionately dominate most professions and industries, including insolvency practice, as they do. (para 81). This view aligns with the argument of this paper to the effect that it is inconcieiable that white males and females within a democratic State continue to dominate managerial levels in the private sector to the exclusion of black African women who are in the majority in South Africa.

The minority judgment in Minister of Justice and Constitutional Development and Another v South African Restructuring and Insolvency Practitioners Association and Others 2017 (3) SA 95 (SCA) further observed the matter of Thibaudeau v Canada [1995] 2 S.C.R 627 where there the Canadian Supreme Court stated that ‘[the fact that a measure may create a disadvantage in certain exceptional cases while benefiting a legitimate group as a whole does not justify the conclusion that it is prejudicial’ (at 696). Sharing Madlanga J’s dissent, it is argued that the flexibility in targets has lead to undue preferences of white males and female and the disadvantaging of black African women. Unsurprisingly, the flexibility in the setting of targets and numerial goals in the EEA has not resulted in black African women being appointed at managerial positions in the South African private sector. Moreover, the application of flexibility in setting targets does not result in consequences for the private sector if set targets are not achieved. Sanctions are not imposed due to the flexibility in setting targets, instead, companies revisit their numerical goals to set targets again. To this end, it is submitted that the achievement of equity for black African women in the private sector should not merely be an aspiring paradigm that the private sector must attempt to comply with, but must be an objective that must be complied with and strictly enforced by applying quotas and excluding flexibility.

It has been 22 years since the EEA has been enacted and the cardinal question is whether the EEA eliminated unfair discrimination and successfully implemented affirmative actions to enable the equitable representation of black South African women in the private sector? Harris (2009) opined that there is slow progress in improving the employment status of the designated groups, but, asserts that without affirmative action, the representation of the designated groups would have been far worse.

According to Oosthuizen et al. (2010, p. 1), the rationale for introducing the EEA in South Africa was to enforce transformation as it was evident that organisations would not empower sufficient numbers of black employees of their free will. Moreover, black African women are underrepresented at managerial positions in the private sector whilst white males are overrepresented. In terms of the EEA, designated employers (including the private sector) are tasked to develop and implement an Employment Equity Plan (EE Plan) to achieve equity in the workplace. The EE Plan often requires designated employers to set specific employment equity targets that will result in the achievement of equity in the workplace. The setting of employment equity targets in the EE Plan is often informed by the underrepresentation of previously disadvantaged groups in certain occupational levels. Oosthuizen et al. (2010, p. 8) asserted that employment equity is applied in the workplace to redress the injustices committed under the apartheid rule. However, the desired resulted has not been achieved because it is applied inconsistently in the workplace and is often not aligned with specific skills development programmes.

In Solidarity and others v Department of Correctional Services and others Solidarity and Others v Department of Correctional Services and Others [2013] ZALCCT 38; [2014] 1 BLLR 76), the court asserted that employers need to take into consideration both the regional and national demographics when preparing an EE Plan (paragraph 45). The court reasoned that when an employer takes into consideration the national demographics of society, it recognises past injustices suffered by the African majority in South Africa (paragraph 45). Similarly, consideration of regional demographics asserts the right to substantive equality for Africans, coloureds and Indians (paragraph 45). Essentially, an EE Plan that does not take into consideration both regional and national demographics is defective. If the private sector fails to take into consideration both the national and regional demographics when preparing an EE Plan, it provides legitimate grounds for black African women to challenge unfair discrimination and exclusion if denied job opportunities during the implementation of such a plan.

Louw (2015, pp. 635–638) rejects the application of numerical goals based on demographics and reasons that:

affirmative action may be applied in instances where persons are not equitably represented in the workplace;

It is observed that the EEA does not set specific targets for the private sector to achieve in terms of equitable representation. Moreover, the EEA has left it to the employers to establish what ‘equitable representation’ must be in the workplace. However, the court in Solidarity laid guiding tools to determine equitable representation i.e. the setting of targets by the employers must take into consideration regional and national demographics of the economically active population when preparing EE Plan.Yet, the private sector continues not to have black African women into managerial positions equitably represented.

As such, it is argued the failure of the private sector to develop and recruit black Africans into managerial positions indicates that the EEA has not been effective in addressing the slow pace of transformation in the private sector. Moreover, the enforcement of penalties by the Department of Labour in South Africa seems to have little effect on ensuring that the objectives of the EEA are met, particularly in ensuring that black African women are represented at managerial positions.

A critical analysis of the EEA revealed that this legislation does not necessarily compel the private sector to set targets that will result in black African women being targeted, recruited, developed and appointed into managerial positions. From this premise, it is not surprising that the CGE hearings did not result in ensuring that companies that failed to employ Black South African women were compelled to employ them at managerial positions.

Legislative measures to create an enabling environment for women in the private sector

South Africa has a deep history of discrimination based on race and gender. Insufficient legislation to provide rights to Black South African women is one of the examples of such discrimination (Lues, 2005, pp. 103–123). As a result of this, South Africa enacted numerous pieces of legislation to provide rights to all persons and eliminate all barriers that delays the achievement of equity and equality in the workplace. Amongst these legislation is the Labour Relations Act 66 of 1995 (LRA) which deems a dismal of an employee based on pregnancy or a reason related to her pregnancy to be automatically unfair(Section 187 of the LRA). Section 193(4) of the LRA provides a remedy for a dismissal that is automatically unfair and dismissed employee may be reinstated, re-employed or compensated.

Similarly the Basic Conditions of Employment Act 75 of 1997 (BCEA) was enacted to provide 4 month’s maternity leave to pregnant employees. In addition, section 26 of the BCEA bars employers from allocating hazardous work to a pregnant employee or an employee who is nursing her child. To this end, the LRA and the BCEA provide pregnant employees with equal rights to other employees to avoid any prejudice or discrimination based on pregnancy.

In 1998, EEA was enacted into law to eradicate the unfair discriminatory practices in the workplace and implement employment equity and realise a diversified workforce. To achieve this, the employers are required in terms of section 20 of the EEA to develop and put into operation an Employment Equity Plan to progressively achieve employment equity in the workplace. Primarily the achievement of equity requires employers to implement innovative plans to address the exclusion of Black African women in managerial levels. The EEA recognises that Black African women are prejudiced in the workplace based on race, class and gender and requires their equitable representation in the workplace. The EEA therefore motivates for the adoption of affirmative action policies in the workplace to address racial discrimination with specific focus on Black African women (Van der Bank et al., 2015).

The Broad-Based Black Economic Empowerment Act 53 of 2003 (BBBEEA) was enacted in 2003 and it aims to facilitate broad-based economic empowerment and achieve economic transformation by fasttracking the participation of women in the economy. The meaningful participation of Black African women is a result of the understanding that these women despite their qualifications, they are intentionally excluded in economic participation based on race, gender and class. In addition to the BBBEEA South Africa develop a National Development Plan (NDP) to further increase women’s economic participation, alleviate poverty and reduce inequalities between men and women by 2030. Notably, the NDP recognises the importance and the role of the private sector to achieve an economy that is inclusive. Despite this, the private sector continues to discriminate against Black South African women by failing to afford them opportunities to uplift to managerial positions in the private corporate environment.

Exposing private sector lack of women representation

There are some private sector companies in South Africa that are making efforts to address the underrepresentation of black African women in their top tier management levels. For instance, in 2019, Phuthi Mahanyele-Dabengwa was appointed as the CEO of Naspers for its South African unit and consequently became the first black African woman CEO to be appointedin such a company. It is recorded that her appointment succeeds years of white male dominance at this position since the establishment of the company for over a century (Kazeem, 2019). The dominance of white males reaffirms the view that the managerial positions in the private sector had not been transformed for several years even post-democracy to reflect the demographics of South Africa. It is from this premise that it is submitted that without clearly defined plans, the managerial positions in the private sector in South Africa will remain dominated by white males. It was observed that before her appointment at Naspers, the incumbent had been in several managerial positions such as the CEO of Shanduka Group (Pty) Ltd., a board member of the Cyril Ramaphosa Foundation, a board member at Vodacom Group Ltd., a board member of miner Gold Fields Ltd. and airline company Comair Ltd (Bonorchis, 2019). It is submitted that her previous managerial experiences made Phuthi Mahanyele-Dabengwa eligible and suitable to be appointed as the CEO of Naspers. From this, it is observed that suitably qualified Black Souh African women may only break the glass ceilings if they are provided with the opportunities to enhance their managerial skills.

To determine the reasons for the scarcity of Black Souh African women in managerial position in private sector, the CGE initiated investigations into the state of employment equity in the South African private sector during November 2017. During these investigations it was unearthed that Sasol (one of the largest companies in South Africa) had white males dominating its top, senior and middle management positions whilst there was inadequate representation of both African and coloured females at these levels (CGE, 2017/2018, p. 25). To remedy this imbalance, the company resolved to consistently implement a ‘women in operations framework’ to increase the pool of suitably qualified females for succession purposes (CGE, 2017/2018, p. 25). The company planned to increase the representation of black African in managerial levels by 2022 and consequently reduce white male representation (CGE, 2017/2018, p. 25).

Similarly, the CGE’s investigations revealed that Hall and Sons Pty Ltd had only white women represented at senior management levels and did not have any representation of Black African women at senior and top management positions (CGE, 2017/2018, p. 25).

South African Breweries Pty Ltd (SAB)’s submission to the CGE in 2017 highlighted that its top management comprises of 3 females (60% of the board composition) of which 2 were equity females (1 African female and 1 Coloured female). Notwithstanding this, white males significantly dominated their senior management positions.

At the CGE’s investigations, Rhodes Food Group submitted in 2017 that their senior managerial levels are white male dominated (85.7 per cent) whilst African males comprised on 14.3 per cent (CGE, 2016/2017, pp. 19–20). The company did not have any Black African women at the senior levels (CGE, 2016/2017, pp. 19–20).

It is observed that the representation of Black South African women in managerial positions at these four private companies is poor and despite the EEA that requires equitable representations at all occupational levels . The CGE found that glass ceiling persists in the private sector and Black African women in particular are unable to have an upward movement to occupy positions of seniority (CGE, 2016/2017, p. 63).

In comparison with the public sector, the CEE found that for two decades white males dominated top and senior management positions in the private sector and this domination was further evident with professionally qualified positions (CEE, 2019/2020, p. 38). The CEE reflects that white women enjoyed more preference by the private sector while Black African women are poorly represented at management levels. In contrast public sector was dominated by black males at management positions however increased the representation of Black women in top and senior management positions (CEE, 2016/2017, p. 87). The public sector demonstrates progress perpetuating racial representation at senior and top positions (CEE, 2016/2017, p. 87). According CEE, the paucity of Black women in the private sector casts doubt that equitable representation will be achieved and this is due to the slow pace of proliferating Black African women in key managerial positions for the period 2006–2017 (CEE, 2016/2017, p. 83).

The 2006–2017 CEE reflects challenges to achieve diversity in the management positions of the private sector. The private sector seem to have preference for the white population with regard to recruitment, promotion and training opportunities at senior positions (CEE, 2016/2017, p. 87). As such it is argued that the EEA has not influenced the private sector to eliminate the unfair discrimination of Black African women and achieve equity and diversity. It is submitted that the private sector fails to augment Black African women in managerial positions unlike the public sector. This view is further expressed by the CGE in 2014 during its investigations into public and private sectors (CGE, 2016/2017, p. 7). The objectives of the CGE’s investigations was inter alia to evaluate compliance with the EEA by employers in the private and public sector. The CGE found that, although both sectors have challenges, the public sector is progressing faster than the private sector in achieving equity (CGE, 2013, p. 8).

The Department of Public Service and Administration (DPSA) found specific challenges in the public sector and this included the underreporting of employment equity due to lack of accountability within departments, and a lack of consequences with no punitive measures (CGE, 2013, p. 8). To this end, the DPSA found that the public sector has not adequately conceptualised and implemented the reporting of gender mainstreaming. This is indicative the public sector does not prioritise gender equality. According to the CGE there is clear indication that the private sector deliberately resisting to transform and this is further demonstrated by inter alia, race-based recruitment, the gender wage gap, inadequate measures to recruit and promote Black African women (CGE, 2013, p. 8).

In 2020, the CGE found that the senior and top management levels at Vodacom Group Limited and Woolworths holding Limited were dominated by white males (CGE, 2019/2020, p. 22). As such, the CGE observed that there is still a slow place transformation in the private sector, which is worsened by the failure to implement the EEA (CGE, 2019/2020, p. 83). Moreover, the CGE observed that in 2020, previously disadvantaged groups such as black African women continue to be under-represented at managerial levels despite numerous policies and measures explored by the private companies (CGE, 2019/2020, p. 83). This assertion indicates that without a commitment and intentional effort to achieve transformation, development of policies and measures will remain ineffective. The CGE asserts that robust mechanisms such as sectoral targets need to be introduced to transform the private sector (CGE, 2019/2020, p. 83). Sectorial targets are observed as key to respond to the lack of transformation in the private sector (CGE, 2019/2020, p. 83). The CGE has not held the private sector accountable beyond producing a report that contains findings and recommendations to introduce sectoral targets. It is observed that the CGE is unable to enforce soft law to expedite the representation of black African women in managerial positions due to the impermissible quotas in the EEA.

Nienaber argues that most companies do not appreciate the value of employment equity and therefore fails to adopt and forster that employment equity at in the company’s culture, practices and environment (Nienaber, 2007, pp. 72–88). The failure to appreciate the significance of employment equity is arguably one of the reasons that companies do not prioritise to recruit and appoint Black African women with the objective to redress their economic exclusion.

The CGE hightlights that the private sector seem to transform the workplace in terms of race, however lags in terms of gender (CGE, 2016/2017, pp. 7–8). This is so because the Broad-Based Black Economic Empowerment Act 53 of 2003 (BBBEEA) requires the private sector to forster the economic transformation to realise meaningful participation of black people. The focus is laid more on race than gender participation. This demonstrates that transformation in the workplace does not take into consideration the historical segregation of women and patriarchy that hinders the progression of women in the workplace (Oosthuizen et al., 2010, p. 9). In the case of Barnard v South African Police Services, the court observed that:

Our quest to achieve equality must occur within the discipline of our constitution. Measures that are directed at remedying past discrimination must be formulated with due care not to invade unduly the dignity of all concerned. We must remain vigilant that remedial measures under the Constitution are not an end in themselves. They are not meant to be punitive nor retaliatory. Their goal is to urge us on towards a more equal and fair society that hopefully is non-racial, non-sexist and socially inclusive. (Paragraph 30)

The poor representation of Black African women at managerial levels in the private sector is depriving them of the opportunity to participate fully in the economy. The UN Women (2017) found that a large labour force propotion is employed by the private sector and the private sector is a critical role player in augmenting women’s economic empowerment by is consequently a critical role play in proliferating women’s economic empowerment through inclusive recruiting and promotional policies, diversified workforce development, and providing procurement contracts to women-owned businesses.

United Nations General Assembly introduced the 2030 Agenda (the Agenda) for Sustainable Development, 2030 and which formulates the new global development framework containing about 17 Sustainable Development Goals (SDGs) with 169 targets covering social, economic development, and the protection of the environment. Goal 5 of the SDGs aims to realise gender equality and the empowerment all females. Through the Millennium Development Goals most countries realised gender equality and the empowerment of women such as equal access to primary education between females and males (Mlambo-Ngcuka, 2017). However, the global pay gap persists at the rate of 23 per cent and it results in female employees in being remunerated less than male employees (Mlambo-Ngcuka, 2017). The exclusion of women in the economy has deprived these women of income and future security (Mlambo-Ngcuka, 2017).

In 2017, Mlambo-Ngcuka, pointed out that there is a slow pace of achieving equality between females and males, and as such there was a need for positive developments to fasttrack the progression of women in various occupational levels (Mlambo-Ngcuka, 2017). Mlambo-Ngcuka (2017) postulated that discriminatory practices and laws are still prevalent in more than 150 countries and this is largely based on partriachal attitudes that view women as secondary earners compared to men and therefore experience gender-based job restrictions and poor income. This submission highlights despite progressive legislation, most countries are struggling to achieve equity (Gonzalez, 2018). As such, the underrepresentation is not only a South African challenge but a global one. It is however critical to South Africa because its population is dominated by women who constitute 51% of the total population (SSA, 2017). In otherwords women are in the majority in South Africa and it is therefore expected they should significantly reflect at managerial levels in the workplace.

Is there a right conferred on Black women to assume managerial positions in the private sector?

South Africa requires fundamental and clearly defined steps to be taken to address the paucity of black African women in managerial positions in the private sector. This will show the country’s commitment to the National Development Plan 2030 (NDP) and assist in reaching gender equality and empowerment of women and girls by 2030 as required by the SDGs target. However, there can be no victors without fundamental obligations by employers to position women into managerial positions. Against this backdrop, South Africa does not have stand-alone legislation or policy that specifically challenges the private sector to ensure that Black African women are represented in managerial positions. The proliferation of Black African women into managerial positions in the private sector is not a legislated right in terms of the South African laws notwithstanding progressive and expansive laws dealing with equality in the workplace.

It is accepted that in South Africa, the appointment of a Black African woman into a managerial position in the private sector is largely dependent on the will and the discretion of those responsible for the company.

In the case of South African Police Service v Solidarity obo Barnard (CCT 01/14) [2014] ZACC 23 (Bernard’s case), the applicant had been an employee of the South African Police Service since 1989. In 2005, the applicant applied for the position of the superintendent that was located within the National Evaluation Service Division. The position related to ‘evaluating and investigating priority and ordinary complaints nationally’ to improve the service delivery of the Police Service to the public. The applicant had applied for this position twice and was unsuccessful in both attempts. Despite the applicant scoring the highest at the interview and being recommended for the position, the National Commissioner for the South African Police Service, argued that appointing the applicant to the position would not enhance racial representivity at that salary level and that the post was not critical for service delivery and therefore it was not necessary to fill the vacancy.

It was argued at the Labour Court, that the reason for failing to appoint the applicant was primarily because of her gender and race and therefore violates section 6(1) of the EEA. The Labour Court determined that the decision not to appoint the applicant was unfair and invalid. It was emphasised by the Labour court that an Employment Equity Plan must be applied fairly with consideration to the right to equality of the affected party and that representivity must be balanced against that right. It is submitted that representivity is crucial in order to realise the right to equality. Not achieving representivity of the designated groups at all occupational levels in the workplace is arguably an infringement of the right to equality of designated groups. The objective of affirmative action is to provide protection and development of designated groups that suffered unfair discrimination because of past injustices.

The Labour Appeal Court set aside the order of the Labour Court and found that the employer had overlooked the applicant and preferred to appoint another person. The Labour Appeal Court emphasised that there was no discrimination as there was no appointment made. Labour Appeal Court reasoned that:

The over-representivity of white males and females is itself a powerful demonstration of the insidious consequence of our unhappy past. White people were advantaged over other races especially in the public service. This advantage was perpetuated by the transfer of skills, some critical, to the same white race to the exclusion of others, especially blacks. The over-representivity of whites in level 9 is a stark reminder of our past and indeed the present and yet another wake up call to decisively break from these practices. These are practices that can be effectively broken by embracing the restitutionary spirit of the Constitution. (Barnard’s case: paragraph 38)

It is a conceivable argument that conferring a specific right to integrate black African women into managerial positions would result in the discrimination of white males and females and black males who aspire to occupy managerial positions in the private sector. To address this juxtaposition, in Barnard’s case, the court rightfully pointed out that the previously advantaged might in appropriate circumstances have to forego employment opportunities in favour of employment equity (paragraph 79). In the case of Barnard, a white female had been a member of the South African Police Services (SAPS) since 1989 and in 2005 the National Police Commissioner advertised a position within the National Evaluation Service for which the white female had applied previously for the same position and not only was she not appointed based on race representivity but a white male was moved literally to fill-in and the position was re-advertised.

Although, the case is not specifically about gender discrimination, but more on racial discrimination of Barnard, the case show that white males regardless of their previous and current advantageous status are preferred over any other gender and race.

Is the quota system an acceptable route to confront the poor representation of black African women in the South African private sector?

To answer this critical question, this article draws lessons from the adopted laws in Norway aimed to augment women into leadership position. The Norwegian government introduced the Companies Act 2003 that outlines the gender composition of Norwegian private and public limited companies. Section 6–11 of the Companies Act makes it mandatory for both male and female employees to be represented on corporate boards in all public limited companies in the private sector. Section 6–11 state that in the boards of publicly listed companies both genders should be represented, as follows:

Where there are two or three board members, both genders should be represented.

The corporate quotas introduced in Norway require 40% of women on corporate boards and its objective is to reduce the gender disparity and augment women’s representation at senior levels in the corporate sector (Bertrand et al., 2017). Viviers et al. (2017) observe that quotas make it mandatory for the appointment of the targeted number of females managers within a particular time frame and results in fines or suspension from stock exchanges if the listed companies are non-compliant . It is deduced that the introduction of the quota system, though appears to be coercive but appears to have the effect of increasing the representation of women in the workplace.

According to Sweigart (2012) if there are no penalties for noncompliance in the Norway quota legislation, companies will not be persuaded to augment women in managerial positions. Consequently, a failure to comply with Norway’s Companies Act, including the gender quotas, results in the company being dissolved (Sweigart, 2012) The effect of quota provisions in the Companies Act is to increase the fraction of women directors at the corporate boards. Bolso asserts that the women in the Norwegian boards of listed companies were poorly represented in 1993 and constituted 3% and slightly increased in 2003 to 7% however tremendously increased to 42% since the coming into operation of the quota provisions (Bolso, 2011).

Storvik et al. (2010) correctly observed that the quotas are implemented successfully if sanctions are imposed and within Norway the harshest being the dissolution of non-compliant companies. It is observed that most companies in the initial phase did not implement the quota policy because there were no sanctions for non-compliance.The critics of a quota system have to some degree argued that a quota has the effect of companies appointing women for tokenism purposes. This means that the appointed women would not be contributing meaningfully but merely appointed to meet the targets. Whilst this is a legitimate argument, it is recognised that the argument or concerns appear to be more of a supposed threat than an existing problem. Sweigart observes this and states that ‘fear of tokenism operates more as a barrier to the passage of divisive legislation mandating higher boardroom participation of women rather than an obstacle to the effectiveness of women once they are situated on boards’ (Sweigart, 2012).

According to Pande et al. (2011) 77 out of an estimated 450 public limited companies in Norway failed to meet the gender quota requirements by January 2008, after the grace period lapsed for compliance. Consequently, the non-complying companies were provided with 4 weeks to comply with the gender quotas. According to Pande et al. the companies were threatened to be dissolved in terms of the Companies Act for non-compliance. Strikingly, all companies complied by mid-2008. This provides a compelling argument that sanctions are necessary against companies that resist complying with gender quotas. Similarly, a voluntary process for companies to comply would result in only a few companies with equitable representation at managerial positions.

Mckinsey (2020, p. 45) recognised that black women are largely underrepresented at all management levels. It is observed that black women are held back by bias when compared with women of other races and ethnicities. As such, they experience more systemic barriers, receive less support from managers, and experience more acute discrimination. (Mckinsey, 2020, p. 45). For example in workplaces, black women experience barriers where they are overlooked during recruitment, mentorship and sponsorship. Within the South African context, black African women have been excluded in the private sector despite their qualifications and skills and this is exacerbated by race-based recruitment. Race-based recruitment suggests that the private sector engages the services of recruitment companies to specifically instruct them to recruit candidates that are white notwithstanding the existence of other competent candidates of other race groups. (Martin and Durrheim, 2006, p. 5). To this end, it is clear that the exclusion of black African women in the private sector is based on the deliberate intention not to achieve equitable representation at all occupational levels.

Undoubtedly, there are highly qualified black African women suitable for managerial positions in the private sector but are not appointed because of a lack of commitment to ensure equitable representation of previously disadvantaged persons in all levels of the workplace. To this end, black African women have been overlooked in the management levels of the South African private sector primarily because of discriminatory practices such as race-based recruitment. As such a view that women do not want to be appointed as ‘equity targets’ is outweighed by the deliberate exclusion of meritorious black African women in management levels.

Similarly, the application of quotas without flexibility will compel the South African private sector to achieve equitable representation. The adoption and implementation of the quota systems will reaffirm the equality rights of black African women in the workplace. The resistance of the private sector to address the underrepresentation of women at managerial levels requires mandatory law that will compel them to recruit black African women. Storvik et al. (2010, p. 3) correctly observed that the successful implementation of the quota was due mainly to sanctions, the toughest of which was the forced dissolution of non-compliant companies. Pande et al. (2011, p. 3) asserted that equitable representations in policy-making is desirable and quotas are a good policy tool to achieve it. As such, the introduction of the quota system, though appears to be coercive will have the effect of increasing the representation of women in the workplace.

Coming to the party: The way forward

The World Economic Forum (WEF, 2017, p. 30) found that in a developing world diversity is important to influence decisions of any company. WEF expressed that companies with women in managerial level have better performance and operate effectively than those companies that have no females at managerial level (WEF, 2017, p. 30). Pletzer et al. (2015) argued that female managers tend to provide enabling environment in the workplace and have leadership skills and qualities such as risk averseness and minimal militant decision-making and sustainable investment strategies. Pletzer et al. (2015) states that female managers execute their managerial roles in a transformational way by supporting and encouraging their subordinates and colleagues compared to their male counterparts. Pletzer et al. (2015) observed that females managers value and appreciate duties as managers than males which is an important component for effective corporate governance. Artigas et al. (2013) shares the views of both WEF and Pletzer et al. (2015) expressed that companies that had one or more females on the executive achieved returns on equity 44% higher, Earnings Before Interest and Taxes (EBIT) margin 47% higher when compared with companies with all-male committees (Artigas et al., 2013). It is suggested that a link exists between having more women directors and corporate sustainability, as well as with economic growth since more diverse leadership teams can cater to a broader array of stakeholder needs and concerns (World Economic Forum, 2017, p. 30). Whilst diversity is key for economic growth and contributes to the company’s performance, Pletzer et al. (2015) observed that gender diversity in the workplace should also be promoted for ethical reasons to promote fairness. Pletzer et al. (2015) expressed the view that suitably qualified females should be given priority when promotion decisions are made at the company.

Achievement in education is critically important for women’s representation in decision-making positions. It is trite that decision-making positions generally require academically qualified persons. The empowerment of women to access education in the fields that are historically male-dominated is arguably envisaged by goal 3 of the MDGs. Consequently, the empowerment of women in education parity is the entry-point for long term gender-focused empowerment and participation in development opportunities. The MDGs did not specifically set targets for the representation of women in decision making positions. This omission neglects to take into consideration the economic exclusion of women and participation in the labour market. This omission has been addressed by the Sustainable Development Goals and are discussed below.

Gender equality and empowerment encompasses the protection of the rights of women and cannot be achieved without equal, full and effective participation of women at all levels of decision-making. Bayeh (2016, pp. 37–42) contended that attaining development among all the pillars of sustainable development is unthinkable without empowering women and obtaining gender equality. It is submitted that empowering of women in the workplace requires employers to create training and development programmes and afford women opportunities to act in decision positions in the workplace. It is submitted that this would promote inclusivity and equal participation of males and females in the economy.

The achievement of transformation requires innovative and proactive measures such as training for women in the workplace to develop capabilities. By so doing, the employers would have sufficient competent black African women for leadership positions. As such, an enabling environment, with supporting mechanisms such as mentoring and coaching are required to fully realise the progression of black African women into competent managers.

Against this backdrop, Goal 5 of the Sustainable Development Goals require South Africa to achieve women’s full and effective participation and afford equal opportunities for leadership at all levels of decision-making levels, including the private sector. This obligation essentially challenges the South African government to proactively and robustly introduce measures or laws that may expedite the representation of women in the private sector. There is only 10 years left for South Africa to meet Goal 5 of the SDG and as such, a quota is a key tool that is required to expedite female representation in all decision-making levels. A quota application was recommended to South Africa by the CEDAW committee in 1998 and it is envisaged that it will result in the achievement of equity and diversity in the private sector.

Article 9 of the Maputo Protocol provides that State Parties shall ensure increased and effective representation and participation of women at all levels of decision making. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa was adopted on the 11th of July 2003 by the Assembly of the African Union in Maputo. This protocol is largely referred to as the Maputo Protocol. The Maputo protocol came to effect in November 2005 and has a binding legal effect on State Parties. South Africa ratified the protocol and thus is expected to comply and promote its principles. Article 9 is a mandatory provision that mandates countries to take proactive steps to ensure the realisation of women at decision-making levels. Essentially the failure by State Parties to ensure effective representation and participation would be in breach of the Protocol. The significance of Article 9 is that it seeks to prohibit window-dressing appointments and challenges State Parties not to just increase women representation, but ensure that women take part in making a key decision that impacts their companies.

In South Africa, the Constitution appreciates that years of racial discrimination perpertuated by the apartheid legal order cannot be addressed without substative action taken to achieve positive result as argued in the case of Bato Star Fishing Pty Ltd v Minister of Environmental Affairs & others 2004 (4) SA 490 (CC). It follows that substative equality requires much more than mere recognition of equality but demands identical treatment, whatever the starting point or impact.

In the case of Minister of Finance and Other v Van Heerden 2004 (6) SA 121 (CC) it was found there exist a persistence levels and forms of social differentiation and systematic under-privilege in society. To remedy this, the judiciary must examine each equality claim; the position of the applicants in society; historical background, prejusice and vulnerability; the history, nature and purpose of the discriminatory practice and whether it ameliorates or adds to group disadvantage in real life context, in order to determine its fairness or otherwise in the light of the values of the Constitution (paragraph 27).

In Barnard’s case, the court observed that:

our quest to achieve equality must occur within the discipline of our constitution. Measures that are directed at remedying past discrimination must be formulated with due care not to invade unduly the dignity of all concerned. We must remain vigilant that remedial measures under the Constitution are not an end in themselves. They are not meant to be punitive nor retaliatory. Their goal is to urge us on towards a more equal and fair society that hopefully is non-racial, non-sexist and socially inclusive. (Paragraph 30)

According to the CGE (2017, p. 26), substantive equality is the preferred notion of equality in South African law as it ensures that laws or policies do not reinforce the subordination of groups already suffering social and economic disadvantage and require that individuals be treated as substantively equally, recognising and accommodating diversity and differences. The CGE (2017, p. 26) asserts that substantive equality requires ensuring ‘equality of opportunity’ (eliminating barriers which exclude certain groups from participation in the workplace) and ‘equality of results or outcomes’ (seeking to achieve an equal distribution of social goods). Against this backdrop, it is desirable to achieve substantive equality for black African women in the workplace through affirmative action measures by introducing quotas in the private sector to ensure their adequate representation at managerial positions. The current affirmative action measures have not progressively increased the representation of Black African women in managerial levels. As such, it is submitted that without a quota and related sanctions, substantive equality will be not be meaningfully achieved and realised by black African women in the private sector.

Conclusion

It is common that due to years of racial segregation white people largely benefitted from apartheid and virtually occupied managerial positions in the private sector. Black women were excluded from accessing equal opportunities. As expressed by Madlanga J in Minister of Constitutional Development and Another v South African Restructuring and Insolvency Practitioners Association and Others 2018 (5) SA 349 (CC) ‘Even where miraculously black people would have worked themselves up and attained equal qualifications, white people would still be preferred for selection to any meaningful area of human endeavour through naked racial and racist preference’ (para 63).

The exclusion of suitably qualified Black African women in managerial positions in the South African private sector is rampant. This is despite various legal prescripts that bars the private sector to discriminate unfairly against black African women based on race, gender and class. It has been 22 years since the EEA was enacted to increase the representation of black African women in various occupational levels in the workplace, Although, the EEA in South Africa bars the use of quotas to achieve equity in managerial positions, they allow the private sector to set its own numerical targets to achieve equity. However, the EEA does not specifically impose penalties if the private sector fails to achieve the set targets. Whilst this approach seeks to afford the private sector importunity to set its own target, this approach has failed to increase the representation of black women in managerial positions. The current slow pace of transformation by the private sector, poses doubt on whether in the next 22 years, the status quo would have changed. As such, this paper argues and concludes that the advancement of black African women in managerial positions can be achievabled effectively through a quota system and exclusion of flexibility that will make it mandatory for the private sector to recruit, develop and promote suitably qualified black African women into managerial positions.