NEIL EMERICK | Adding dignity to the redress vs growth debate

BEE is a legislative policy using affirmative action to redress inequalities created by apartheid. Its explicit aim is to change the social distribution of wealth using government procurement.

For some an attack on BEE is interpreted as an objection to black people doing well in business. For others BEE represents a ruse for unjustified economic handouts. Ironically, continued racial inequality is invoked by both camps as evidence the policy has failed and should therefore be intensified or scrapped accordingly.

Rather than join the debate on whether BEE has “worked”, let’s consider whether racial redress is itself a morally justifiable policy position. We can start by looking at what the courts have said in cases, the most important of which was the Van Heerden case.

Frederik van Heerden was a politician who objected to a modified pension scheme paying black parliamentarians more than whites. The Constitutional Court judges ruled in favour of the scheme, justifying unfair discrimination under section 9.2, which allows preferential treatment for those who suffered previous unfair discrimination. This was in contrast to earlier cases (such as Harksen v Lane), which laid the tests for discrimination not tolerated under section 9.3.

While the court resolved the legal tension, the moral discomfort remains. Racial discrimination is not allowed under section 9.3, but is allowed under section 9.2 if:

• the targeted group has previously been discriminated against;
• the measure advances the targeted group; and
• the measure promotes the vision of an equal society.

Judge Dikgang Moseneke opined: “It must be accepted the achievement of this goal may often come at a price for those who were previously advantaged. However, it is also clear that the long-term goal of our society is a nonracial, nonsexist society in which each person will be recognised and treated as a human being of equal worth and dignity.

“In particular, a measure should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened.”

Here, the conflict is clearly stated. We want to build a moral and just society, but somehow we have to justify the social price to be paid along the way.

Moral foundations are rooted in two core concepts. Consequentialism is the idea that the end justifies the means. Something is moral if we agree with the outcome, even if we might not agree with how we got there. Deontological arguments, on the other hand, look for a clear principle of right and wrong, and argue no end can be justified if the means themselves are morally unjust.

The traditional argument is that gains from BEE justify the price levied on sections of society. However, because procurement points give credit for something other than quality and price, BEE imposes an additional cost on the recipients of government services, most of whom are black. Can we argue for a consequentialist policy that requires poor black South Africans subsidise an elite group?

Similarly, if it were shown BEE hurts economic growth because it discourages whites from engaging in the economy, deters foreign investors and disappoints young black entrepreneurs outside connected networks, we would be justified in arguing that rather than building the society we hope for, BEE actively hinders it.

Switching to a deontological argument, why should a white South African, born after 1976, who played no political role in apartheid (they were unable to vote before 1994), suffer prejudice from their government based on the colour of their skin? What of the wealthy black professional who receives benefits for suffering she personally didn’t endure?

Immanuel Kant offered a formula that helps this inquiry. His categorical imperative argued that rational individuals should be treated as ends in themselves, not means. At the heart of this classically liberal position is whether our moral position is based on our acts and sufferings as individuals, or whether — through some group attribution — we are morally culpable for actions taken by others.

John Rawls supported this individualistic view when behind a “veil of ignorance”, asking individuals to choose a system without knowing which group they would belong to. Can we be held collectively guilty based on the random chance of belonging to a particular race or language group?

By contrast, Robert Nozick was more concerned with how the ideal was achieved. If the goal of BEE is an equal society, Nozick asks whether we can get there justly. Are policies implemented fairly? Do they respect property rights, voluntary exchange and freedom of choice? If such policies are implemented coercively, they are unjust, even if the outcomes favour historically disadvantaged persons. BEE’s quota requirements and mandatory procurement targets would, on Nozick’s account, fail that test.

The Marxian view contrasts the liberal, individualistic view, holding that individuals are not the atoms that comprise society but are the moral product of its structure. If wealth and networks are born of this structure an individual’s presumptive right to privilege therefore falls away, and wealth accumulated through a social system of exploitation is already morally compromised.

The burden of justification then lies with those who hold it, not those who challenge it. Yet this view risks dissolving individual moral agency entirely. If we are all products of social structure, the notion of personal dignity underpinning the constitution becomes difficult to sustain.

These different philosophical views attempt to reconcile the past with the ideal of a morally just society. South Africa’s constitution seeks this balance with a deep respect for individual dignity and permission for race-conscious measures intended to remedy past injustice. However, this is more an unresolved tension than a principled synthesis.

The founding value of dignity requires individuals be treated as moral agents in their own right, not merely as representatives of historically defined groups. BEE policies risk compromising that dignity on both sides of the racial divide, burdening some with inherited moral liability and casting doubt on the merit of others who succeed from its practice.

A nation committed to nonracialism and equal worth must ask not only whether corrective policies are permissible or economically expedient, but whether they are morally coherent and help build the society we were promised in 1994.

• Emerick is deputy chair of the Free Market Foundation.