Judicial notice: Discrimination and disadvantage in the context of affirmative action in South African workplaces

Abstract

This article considers the question whether unfair discrimination and the resultant disadvantage for certain groups in South Africa, should be proven or whether the doctrine of judicial notice is adequate in the context of affirmative action. The terminology and expressions in the Constitution of the Republic of South Africa, 1996, as well as ordinary legislation which supplements the Constitution – the Employment Equity Act 55 of 1998 and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 – are analysed and interpreted. The article suggests that the country's history of unfair systemic discrimination, based on colonialism, apartheid and patriarchal practises, are so well-known and notorious that the doctrine of judicial notice applies in the case of affirmative action. Furthermore, because that history, the traditional cause thereof and its impact on black people and women is well documented, it is suggested that application of the doctrine can assist with the integration of such people in the South African workplace and broader society. This approach considers the current aspirations and expectations of the South African population and assists in healing the past. Such an approach further supports the concept of substantive equality (a group based concept) and meets the Constitution's value laden approach to interpretation. It will also contribute to the long-term aim of establishing a non-racial and non-sexist society. It is therefore not necessary to prove historical discrimination and disadvantage since such discrimination and disadvantage are not contentious as a social fact; on the contrary, it is a question of taking notice of history since it is widely and thoroughly documented. The case of Minister of Finance v Van Heerden 2004 6 SA 121 (CC) which requires that disadvantage in the context of affirmative action should be "demonstrated", is supported only in so far as information is put before the court by means of, for example, books and reports. If this is not done, the court can of its own accord take notice of unfair historical discrimination and disadvantage. Lastly, should the social and other economic realities relating to race and gender change in South Africa, the application of the doctrine of judicial notice will have to be reconsidered. This will also be the case if new discrimination and disadvantage occurs which is not well-documented.