Bonang Mohale | Do we really need B-BBEE during a pandemic?
Too many people are poor and marginalised. Unable to reach their potential. We have to try harder. - Deputy Chief Justice, Dikgang Ernest Moseneke
Just like the National Occupation and Safety Act is a law unaffected by Covid-19, so is the Broad-Based Black Economic Empowerment Act (B-BBEE). It is the law, and our job is to comply.
Last week, the Department of Tourism claimed victory over AfriForum and Solidarity in the North Gauteng High Court, which reaffirmed the uneven playing field between white and black-owned companies, created by the country's historical imbalances and confirmed the criteria as being well within the law.
The North Gauteng High Court also agreed with the Department that the economic impact of the coronavirus pandemic will result in the closure of black business and "would undermine and set back transformation". It found "nothing racial or shameful" in the inclusion of B-BBEE in the criteria as the applicants sought to suggest.
This was upheld by the Constitutional Court 's dismissal of the joint Afriforum and Solidarity's application to appeal and set aside the use of B-BBEE as consideration for financial relief to small businesses in the sector affected by Coronavirus (Covid-19). The Constitutional Court considered the application for leave to appeal and concluded that the application should be dismissed as "it is not in the interest of justice to hear it at this stage, as there are insufficient grounds raised for a direct appeal to this Court on an urgent basis."
Section 9(1) of the South African Constitution has a general limitation clause (section 36) that says rights may be limited by a law of general application that is 'reasonable and justifiable in an open and democratic society based on dignity, freedom, and equality'. Section (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
This constitutional equality within a transformative approach is included to better address the deep and systemic inequalities in our society. It suggests that we should move through and beyond a dignity-based concern with social inclusion and sufficiency towards an idea of systemic and material justice. It proposes that the value of equality can be developed as an idea of 'equality of condition', aligned with an idea of substantive freedom, that would better resonate with the struggles of our past and present, and suggests how the 'right' could be subject to more transformative interpretation and application.
The law without an analysis of power is tyranny. Much more so, because 26 years into democracy, all of us, collective, individuality and severally have not succeeded in eradicating the 82 years of Separate Development, 48 years of Apartheid and 340 years of colonialism.
This is despite the fact that, not in the main body but in the preamble to the South African Constitution, not only are (royal) we implored to "recognise the injustices of our past" but explicitly mandated to "heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights" and "improve the quality of life of all citizens and free the potential of each person."
It concludes with the hymn, "Nkosi sikelel' iAfrika", now our National Anthem, which we sing daily. We cannot fix the problems of economic justice in this country without first addressing racial justice. The deck has always been stacked against poor people.
Economic justice and racial fairness have always been one and the same thing. Asking for a hand-up is not the same as asking for a handout. B-BBEE is not a permanent crutch against which Black people want to lean for the rest of their lives.
What Covid-19 has simply done is to demonstrate the huge and deep structural inequality, now laid bare for all to witness. Grotesque and obscene wealth and grinding, self-perpetuating, vicious cycle of abject poverty. The colour of Covid-19, like poverty, is primarily black and feminine. A report by the Office for National Statistics found black women are 4.3 times more likely to die with Covid-19 than white women, while black men are 4.2 more likely to die.
In Chicago, 72% of people who died were black, officials said in April, despite African Americans only making up 30% of the city's population. In Louisiana, African Americans make up 32% of the population, but account for around 70% of deaths. Even after taking into account age, demographic factors and measures of self-reported health problems, black people were still almost twice as likely to die from Covid-19 than white people.
Covid-19 has also demonstrated another very disturbing exponential increase in gender-based violence and child abuse and South Africa has unacceptably high levels of gender-based violence. Ms. Tabea Kabinde is the Chairperson of the Employment Equity Commission, which has been releasing EE statistics for the last 21 years.
The 2019 report shows black representation in positions of leadership at a disappointing 14,3% despite black people constituting more than 90% of the population. Representation of women is less than 24% and African women are less than 4% despite women constituting 51% of the population.
Today, we still pay women about 75% of what we pay men for work of equal value. Covid-19 is everywhere, but countries with women as heads of state, Denmark, New Zealand, Germany, Belgium, Finland, Iceland, etc. seem to be managing the crisis better. Women contribute to a much more 360-degree/holistic perspective about how companies operate inside societies. It still tends to be assumed that they will take on the majority of both domestic and caring duties both at home and broader society. So, they are generally the ones dealing with the dentists, doctors, the schools, the care homes, the bus timetables, etc. without fair compensation for such care work.
I absolutely love the proposals that come out of Hawaii, called a "feminist economic recovery plan". Rather than restoring the economy to the old normal, the state is looking to seize the opportunity "to build a system that is capable of delivering gender equality". The proposal includes, among others, a universal basic income, and special emergency funds for marginalised groups, including undocumented immigrant women, domestic workers, women with disabilities and sex-trafficking survivors. Waived co-payments for Covid-19 tests and treatment, including for incarcerated women. A 20% pro rata share of the Covid-19 response, funds the express recovery needs of the indigenous population. A $24.80/hour minimum wage for single mothers. Free, publicly funded child-care for all essential workers, and more.
Four decades have passed since management consultant Marilyn Loden coined the phrase, 'glass ceiling' to describe the invisible barrier blocking the way for women to progress to senior positions. Despite the #MeToo campaign and the attention given to the gender pay gap, attempts to increase both the number and advancement of women in business are moving excruciatingly slowly. The metrics are not showing the direct result of this significant momentum we have at the moment. Inequality is not something the market is going to fix by itself. The burden of 'women's work' excludes women. While women account for an increasing proportion of enrolment and component in higher education, they remain less likely to pursue higher levels of degrees at tertiary level. In addition to financial restriction, women are more likely to sacrifice education to fulfil family and household commitments (particularly due to pregnancy) than their male counterparts.
When your neighbour is hungry, you cannot sleep at night. From those that more is given, much is expected. It is manifestly in the best interest of the 'haves' to take the lead in bringing about and sustaining this worldview of abundance, precipitated by the love prism. In viewing job creation in abundance as creating markets of the future. It is the moral duty of the beneficiaries of patriarchy and privilege to bring about both gender equality and pay parity in order to attain the ideals of social justice, nation building, social coherence and deliver the South Africa of Rolihlahla N. Mandela's dreams - the South Africa we have all been praying for. The democracy dividend must surely percolate to all the social strata of our people.
We dare not give up on the miracle of the South Africa of Rolihlahla Nelson Mandela's dreams as carried forward and eloquently articulated by his seamless successor, former president Thabo M. Mbeki during his inaugural address on the 16 June 1999 in Pretoria. On that auspicious occasion, then President graphically described this dream as "mahube a naka tsa kgomo " - the breaking of the dawn, when only the tips of the horns of the cattle can be seen etched against the morning sky - demonstrating a "palpable process of the comprehensive and simultaneous formation and renewal of our country - its rebirth".
We must continue this dream of a South Africa that has been forcibly pulled from "the abyss and placed on the pedestal of hope". A South Africa that is free, humane, noble and beautiful - upholding good over evil and affirming the dignity of all its people - where the vast majority of our people own assets with no more suffering inflicted by degrading poverty - where hunger is banished forever because all will be gainfully productive - young and women feel both safe and equal - a nation diligently at work to create a better life for itself - a winning nation joined together into one nation of many colours, cultures and diverse origins. I also dream of a South Africa that is on an economic path that will ensure a bright and better future for all its citizens.
Bonang Mohale is the Chancellor of the University of the Free State, and Professor of Practice in the Johannesburg Business School (JBS) College of Business and Economics. He is the author of the bestseller Lift as You Rise. Views expressed are his own.