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

Marie McGregor
BLC LLB LLM LLD
Professor of Mercantile Law, University of South Africa

OPSOMMING
Geregtelike Kennisname: Diskriminasie en Benadeling in die Konteks van
Regstellende Aksie
Die artikel ondersoek die vraag of onbillike diskriminasie en die gepaardgaande benadeling van sekere groepe in Suid-Afrika, bewys moet word en of die leerstuk van geregtelike kennisname voldoende is in die konteks van regstellende aksie. Die begrippe en terminologie in die Grondwet van die Republiek van Suid-Afrika, 1996, sowel as gewone wetgewing wat die Grondwet aanvul - die Wet op Gelyke Indiensneming 55 van 1998 en die Wet op die Bevordering van Gelykheid en Voorkoming van Onbillike Diskriminasie 4 van 2000 - word ontleed en uitgele. Die artikel stel voor dat die land se geskiedenis van onbillike sistemiese diskriminasie gegrond op kolonialisme, apartheid en patriargale praktyke, so welbekend en berug is dat die leerstuk van geregtelike kennisname van toepassing is op regstellende aksie. Voorts, omdat sodanige geskiedenis, die tradisionele oorsake daarvan en uitwerking op swart persone en vroue breedvoerig en volledig gedokumenteer is, word aan die hand gedoen dat die toepassing van die leerstuk kan meehelp om sodanige persone te integreer in die Suid-Afrikaanse werkplek en breer samelewing. Hierdie benadering neem die huidige aspirasies en verwagtinge van die Suid-Afrikaanse bevolking in ag en maak 'n bydrae om die verlede te genees. So 'n benadering ondersteun verder die begrip van substantiewe gelykheid ('n groeps-gebaseerde begrip) en voldoen aan die Grondwet se waarde-gebasseerde metodologie van uitleg. Dit sal ook bydra tot die langtermyn doelwit om 'n nie-rassige en nie-seksistiese samelewing daar te stel. Dit is dus nie nodig om historiese diskriminasie en benadeling te bewys nie omdat sodanige diskriminasie en benadeling nie kontensieus is as 'n sosiale feit nie; dit is inteendeel 'n vraag van kennisname van die geskiedenis omdat dit wyd en volledig gedokumenteer is. Die saak van Minister of Finance v Van Heerden 2004 6 SA 121 (CC) wat verg dat benadeling in die konteks van regstellende aksie "aangetoon" moet word, word ondersteun slegs in soverre inligting voor die hof geplaas word by wyse van byvoorbeeld boeke en verslae. Indien dit nie gedoen word nie, kan die hof uit eie beweging geregtelik kennis neem van onbillike historiese diskriminasie en benadeling. Ten laaste, sou die opvoedkundige, sosiale en ander ekonomiese werklikhede met betrekking tot ras en geslag verander in Suid-Afrika, sal die toepassing van die leerstuk van geregtelike kennisname heroorweeg moet word. Dit sal ook die geval wees waar nuwe diskriminasie en benadeling voorkom en nie goed gedokumenteerd is nie.

1 Introduction
This article looks into the question of whether discrimination and its resultant disadvantage have to be proven or whether taking judicial notice thereof would be sufficient in the context of affirmative action in South African workplaces. In order to do this, it is necessary to explore the historical context against which affirmative action has been adopted in South Africa, to clarify terms and phrases used in the Constitution and to supplement the latter by ordinary legislation and Constitutional Court jurisprudence, all of which need to be interpreted. The only case on affirmative action to have reached the Constitutional Court will also be explored. Lastly, the concept of judicial notice will be investigated and applied to the concepts of discrimination and disadvantage.

2 Historical Overview
In South Africa, colonialist and apartheid laws, policies and practices -which were racist and patriarchal - provided for separate societies for blacks, whites, Indians and coloureds. Segregated land ownership, segregated, zoned living areas for the black urban population, and later, self-governing territories and homelands for the black rural population, pass laws for blacks, racial classification, the prohibition of marriage between whites and people of other races, separate and unequal education systems, health services and public amenities, and separate labour systems with job reservation for whites and wage differentiations between white and black and between the sexes, were at the order of the day. Disabled people were kept dependant and discriminatory legislative provisions existed against them as well.
This history of systemic discrimination and its resulting inequality and entrenched disadvantage for (a majority) blacks, coloureds and Indians, women and the disabled, was (and still is) well-known - locally and internationally. Moreover, the country's history of colonialism and apartheid and its effects have been documented extensively, exhaustively and widely.
Further, apartheid has been widely condemned. For example, the United Nations (UN) declared apartheid and its impact a "crime against humanity" and a negation of the UN Charter. Expressions of censure culminated in the adoption of the International Convention on the Suppression and Punishment of the Crimes of Apartheid in 1973 and the expulsion of South Africa from the UN and its agencies.

3 Constitution
Only after many years of both international as well as national pressure, was a democratic constitutional order adopted, under which a commitment was made to achieving the objective of equality. The new Constitution - forming the basis of the legal system of South Africa -incorporated a notion of substantive equality in its Bill of Rights. This notion recognises that opportunities are determined by individuals' social and historical status, including race and gender, as part of a groupor groups. It acknowledges that discriminatory acts do not occur in isolation - they are part of patterns of behaviour towards groups, such as women and blacks - which results in "disadvantage" for such groups. Such disadvantage may be of social, economic, political and/or educational nature. The notion further holds that, as the prohibition of unfair discrimination is insufficient to achieve true equality, affirmative action measures are needed. Such measures distribute social goods in a group-based way on the basis of, for example, race and sex, and seek to correct imbalances where factual inequalities and disadvantages exist. Affirmative action is thus a temporary means to promote equality.
The Constitution in its preamble - an important source of interpretation in that it indicates the fundamental mischief it wants to remedy - explicitly recognises the injustices of the South African people's past and sets out to heal the divisions of the past though it does not elaborate on these injustices and divisions.
To "recognise" means to "identify, acknowledge, accept, admit, realize, be aware of, be conscious of, appreciate, be cognisant of ..." To recognise the injustices of the past in the Constitution points to the significance thereof.

The Constitution further sets out to establish a society based on democratic values, social justice and human rights. The achievement of equality, non-racism and non-sexism are founding values of the country. The Bill of Rights affirms the values of human dignity, equality and freedom. With regard to equality, it is stated that equality includes the full and equal enjoyment of all rights and freedoms. In an endeavour to promote the achievement of equality, unfair discriminationis prohibited on a non-exhaustive list of grounds and provision is made for affirmative action through "... legislative and other measures, designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination ..." (own emphasis).
The Constitution thus authorises affirmative action in a broad manner. The beneficiaries of affirmative action measures are those persons, or categories of persons "disadvantaged by unfair discrimination." The cause of such disadvantage is clearly unfair discrimination, but neither the cause(s) nor the effects are further elaborated on in the Constitution itself. In other words, the Constitution does not offer a clearly articulated statement recognising the nature of disadvantage that needs to be remedied, neither does it specify the nature of the unfair discrimination (the grounds on which it has occurred) which have caused such disadvantage. Moreover, the Constitution is silent on proving disadvantage and/or its cause(s).

Other laws are thus required to supplement and expand the basic constitutional framework. These laws must be interpreted as part of the broader constitutional legal basis.
In this regard, the Constitution propagates a value-based methodology of interpretation and states that the values that underlie an open and democratic society, based on human dignity, equality and freedom, must be promoted. When interpreting any legislation, the spirit, purport and objects of the Bill of Rights, must be promoted.
Besides ordinary laws, the Constitutional Court, of course, also plays an important role in expanding and interpreting the Constitution.

3 1   Supplementing the Constitution 3 1 1   Ordinary legislation
3 1 1 1 Introduction
Ordinary legislation, such as the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) and the Employment Equity Act (EEA) - both associated with the socio-economic transformation of the country - expand the basic constitutional framework and clarify thenature of the injustices and divisions of the past, and the terms "disadvantage" and "unfair discrimination," as found in the Preamble and in section 9(2) of the Constitution respectively. Only these two acts will be discussed.

3 1 1 2 Promotion of Equality and Prevention of Unfair Discrimination Act
The PEPUDA, in a detailed manner, acknowledges the pain and suffering of a great majority of South African people and wants to eradicate social and economic inequalities which were generated by colonialism, apartheid and patriarchy. It aims to promote de jure and de facto equality and equality in terms of outcomes. It particularly mentions the advancement of historically disadvantaged individuals, communities and social groups who were dispossessed of their land and resources, deprived of their human dignity and who continue to endure such consequences ... (own emphasis).

Its reach, however, goes wider than that of historically disadvantaged people in that it targets people disadvantaged by both past and present unfair discrimination. As a guiding principle in the application of the Act, it states that the existence of systemic discrimination and inequalities must be recognised and taken into account, particularly in respect of
... race, gender and disability in all spheres of life as a result of past and present unfair discrimination, brought about by colonialism, the apartheid system and patriarchy... (own emphasis).
To recognise systemic discrimination and its resultant disadvantage for certain groups in legislation, carries a certain weight as the latter is generally viewed as an expression of the will of the people through their democratically elected representatives.
The Act places a duty and responsibility on the state, institutions performing public functions and all people to promote equality in respect of race, gender and disability. Very importantly, it prioritises the promotion of equality in respect of these very same grounds.
Unlike the Constitution then, the PEPUDA names the injustices and divisions of the past (in the Preamble of the Constitution) namely the unfairly discriminatory systems of colonialism, apartheid and patriarchy and the discriminatory grounds on which these systems were practised. It makes clear the wide reach of the disadvantage these systems havecaused in respect of race, gender and disability, as extending to all spheres of life.
Similar to the Constitution, the PEPUDA is silent on proving "disadvantage," a test for "disadvantage" or its causes, in the context of affirmative action. However, the Act articulates in detail the past systems of colonialism, apartheid and patriarchy to have unfairly discriminated against and disadvantaged people on the basis of race, sex and disability.

3 1 1 3 Employment Equity Act
The EEA, similar to the PEPUDA, recognisesin a fairly detailed manner that "as a result of apartheid and other discriminatory laws and practices"  (own emphasis), there are disparities in employment, occupation and income within the labour market. These disparities, it states, created pronounced disadvantages for black people, women, and people with disabilities and those are the beneficiaries of affirmative action under the EEA. In 2007, South African people of Chinese descent have been declared to fall within the ambit of the definition of "black people" for purposes of the EEA.

Again, to recognise unfair discrimination and its resultant disadvantage in legislation is important as legislation is generally viewed as an expression of the will of the people.
The EEA thus clearly articulates that the discriminatory system of apartheid (though it recognises that other such laws and practices also existed) basically caused economic disadvantage to blacks, women and the disabled in the workplace.
Similar to the Constitution, the EEA is silent on proving "disadvantage," a test for "disadvantage" or its causes, in the context of affirmative action. However, the Act recognises and articulates in detail, the past system of apartheid to have unfairly discriminated against people on the basis of race, sex and disability. The Act also clearly articulates the resulting disadvantage of these systems on groups possessing these characteristics.

3 1 2   Constitutional Court Jurisprudence
3 1 2 1 Clarifying Discrimination and Disadvantage
The Constitutional Court has made clear that the achievement of equality goes to the bedrock of our constitutional architecture. It also clarified the historical injustices of the past, the nature of disadvantage suffered, the discriminatory systems which have caused such disadvantage and the discriminatory grounds on which these systems had operated. Ininterpreting the Constitution, the Constitutional Court emphasised historical racial discrimination as follows:
The policy of apartheid systematically discriminated against black people in all aspects ofsocial life. ... [T]he most visible and most vicious pattern of discrimination has been racial ... . The deep scars of this appalling programme are still visible in our society (own emphasis).
And "[o]ur Constitution recognises ... decades of systematic racial discrimination entrenched by the apartheid legal order ... "  (own emphasis).
Moreover, the Constitutional Court recognised that disadvantage due to discrimination based on sex, though not as visible, or as widely condemned as discrimination on grounds of race, has nonetheless resulted in "... deep patterns of disadvantage" (own emphasis).
Very importantly, the Court has further widened the scope of disadvantage beyond the abovementioned traditional or common disadvantage based on race and gender found in the country. It pointed out that, besides uneven race, class and gender attributes
... there are otherlevels and forms of social differentiation and systemic under-privilege, which still persist. The Constitution enjoins us to dismantle them and to prevent the creation of new patterns of disadvantage (own emphasis).
The wording in the preamble and section 9(2) of the Constitution then primarily relates to disadvantage resulting from unfair discrimination on the grounds of race and sex, but it is not limited to these. It may include otheror new disadvantage with an objective existence, caused by unfair discrimination. This may include discrimination on any of the listed
grounds as set out in subsection 9(3) of the Constitution or on unspecified grounds.

4  Van Heerden Case
The case of Minister ofFinance v Van Heerden is the only case on affirmative action that has reached the Constitutional Court so far, and since it revolved around a test for affirmative action, the Court touched on the notion of disadvantage.
The matter involved the rules of the Political Office-Bearers Pension Fund for members who entered Parliament after the new constitutional order, in terms of which three different categories of members withdifferentiated employer contributions (favouring new parliamentarians for a short period) were created. The applicants (the Minister of Finance and the Fund) successfully appealed against an order of the High Court which found that the rules of the Fund were unfairly discriminatory and unconstitutional.
The classification by the applicants of the Fund as an affirmative action measure - though this was not fully argued - was accepted by a majority in the Constitutional Court. In essence, the court held that affirmative action measures that "properly fall" within the requirements of section 9(2) of the Constitution were not presumptively unfair and established a three-pronged rationality test to determine this: Do the measures target people or categories of people who had been disadvantaged by unfair discrimination; are such measures designed to protect or advance such people or categories of people; and do they promote the achievement of equality?
This discussion focuses only on disadvantage as found in the context of the first leg of the three-pronged test. In this regard, the Court held that "[t]he beneficiaries [of affirmative action measures] must be shown to be disadvantaged by unfair discrimination" (own emphasis).
The Court held that the measures of redress must favour a group or category designated in section 9(2), that is, people disadvantaged by unfair discrimination. In this case, the Minister and the fund submitted that the differentiated contribution scheme was set up to promote the attainment of equality between previous pension fund members and new members who were in the past excluded from parliament on account of race and/or political affiliation. This objective they would advance by identifying separate indicators of need for increased pensions for new parliamentarians. On the facts, however, it was clear that not all new parliamentarians belonged to the class of people prejudiced by past disadvantage and unfair discrimination. It appears that the Court relied on the evidence led in the court a quo.
However, an "overwhelming majority" of parliamentary members were excluded from parliamentary participation by past apartheid lawson account of race, political affiliation or belief. The evidence that a small minority of people who had not been disadvantaged by apartheid but who also benefited from the differential pension contribution scheme was insufficient to undermine the legal efficacy of the scheme. The court stated that it was often difficult, impractical or undesirable to devise an affirmative action scheme with "pure" differentiation demarcating precisely the targeted classes. Within each scheme, there may be exceptional or hard cases, or windfall beneficiaries.

5 Judicial Notice
The question whether a court should take judicial notice of a fact, is one of law and is decided by the court. The South African law of evidence makes provision for this doctrine and allows a judicial officer to accept the truth of certain facts which are known to him or her, even though no evidence was led to prove these facts. This may happen in two situations: where facts are so well-known so as not to be the subject of reasonable dispute, (that is, general knowledge which requires no external evidence) or where facts can be readily ascertainable by accurate sources so that evidence to prove them would be completely unnecessary (or even absurd). The reasons for the existence of the doctrine of judicial notice are twofold. First, it expedites cases in the sense that much time would be wasted if every fact which was not admitted had to be the subject of evidence. Second, the doctrine tends to produce uniformity of decision on matters of fact (where a diversity of findings may sometimes be embarrassing).

In some instances, a court may take judicial notice of some facts without any enquiry, that is, without consulting any specific source, whereas in other instances judicial notice may only take place with reference to a source of indisputable authority. The distinction between the two is that in the former instance, evidence may generally not be led to refute facts which have been properly noticed, while in the second instance, evidence may generally be led concerning the disputability or indisputability of the source.

The former encompasses facts that are "reasonably known among reasonable informed and educated people". This knowledge must be notoriousand not the result of personal observation. The letter entails facts which are not generally known but easily ascertainable from sources such as surveys of governmental or other reliable authority.
The South African courts have used books to establish historical facts. This may be done at the court's own initiative, or the court may be referred to them. In Consolidated Diamond Mines of South West Africa v Administrator of South West Africa, the court stated that ... the early history of the Sperrgebiet, [in respect of exclusive prospecting and mining rights] closely bound up as it is with the establishment of German sovereignty in South-West Africa, is really a matter of general historical knowledge of which the Court, ... might probably have informed itself from history books and have taken judicial cognisance ... . We have indeed been referred by counsel to a book ... which is said to be of recognised historicalaccuracy. As, however, the relevant information has been put before us in affidavits filed on behalf of the appellant and the respondents do not deny the facts but merely dispute certain inferences and certain conclusions of law we are asked to draw of them, it is unnecessary for us to travel beyond the record (own emphasis).
The courts have also taken judicial notice of facts of a sociological character. For example, in Moller v Keimoes School Committed the Appellate Division took judicial notice of the early history of South Africa and of attitudes of early settlers on racial issues.

As a matter of public history, we know that the first civilised legislators in South Africa came from Holland and regarded the aboriginal natives of the country as belonging to an inferior race, who the Dutch, as Europeans, were entitled to rule over, and whom they refused to admit to social or political equality. We also know that, while slavery existed, the slaves were blacks and that their descendants, who form a large proportion of the coloured races of South Africa, were never admitted to social equality with the so-called whites. Believing ... that intimacy with the black or yellow races would lower the whites without raising the supposed inferior races in the scale of civilisation, they condemned intermarriage or illicit intercourse between persons of the two races. ... the vast majority of Europeans have always condemned such unions, and have regarded the offspring of such unions as being in the same racial condition as their black parents ... these prepossessions, or, ... prejudices, have never died out, and are not less deeply rooted at the present day among the Europeans in South Africa, whether of Dutch or English or French descent (own emphasis).

Where the disadvantage of a particular group, or a mixed group, and/or its causes are truly contentious as social fact/s, that group's alleged disadvantage should not be accepted as a legal fact, and the doctrine of judicial notice cannot be used in such circumstances. The same will be true for new disadvantage. Convincing evidence may have to be produced on the nature of such disadvantage and its causes simply because such new disadvantage and its causes may not be well-known or well-documented as yet and is unclear as a social fact.

6 Analysis
Flowing from the above, it is submitted that South Africa's history of past discrimination of colonialism, apartheid and patriarchy and its resultant disadvantage for certain groups are sufficiently notorious to form a proper subject for judicial notice: it is a matter of historical knowledge. Moreover, this history - its traditional or common causes and effects on blacks, women and the disabled in particular - have been documented extensively and widely in reputable books and reports.

It appears that the Constitution, in fact, paved the way for using the doctrine of judicial notice by recognising the injustices of the past. The PEPUDA and the EEA - which expand on the Constitution - have recognised this in greater detail by naming the discriminatory systems of colonialism, apartheid and patriarchy and the social and economic nature of the disadvantage it has caused for blacks, women and the disabled. It could never have been the intention of the legislator to require a showing of, or proving disadvantage, and/or its causes for these groups against the background of this notorious and well-documented history.

It appears true that is unnecessary and wasteful to prove historical discrimination, for this exacerbates conflict and division. It focuses on the wrongs of the past and promotes an unhealthy social ethic, namely the endeavour to prove that one is a victim. Further, the author agrees that deeming blacks not to have suffered disadvantage unless they can prove the contrary, appears to be "fundamentally misplaced." This is so because South Africa's past policy of apartheid has been branded as "a crime against humanity" and its devastating effect on black communities has been documented so amply as to require no additional proof. Another valid argument is that by proving disadvantage, it may be counterproductive to the present transforming society.

7 Conclusions
The fundamental mischief which the Constitution seeks to remedy in this regard is the previous, widely condemned, discriminatory system/s and their resultant entrenched disadvantage for certain groups. This it does by recognising the injustices of the past and setting out to heal the divisions of the past mentioned in the preamble of the Constitution. The Constitution further broadly authorises affirmative action measures for people disadvantaged by unfair discrimination in section 9(2). These provisions have been supplemented and expanded on in detail in ordinary legislation (the PEPUDA and the EEA) and by the Constitutional Court to mainly encompass traditional disadvantage caused by unfair discrimination based on the grounds of race, sex and disability, as practised by the systems of colonialism, apartheid and patriarchy, but also to include new disadvantage caused by unfair discrimination.

Neither the Constitution, nor the PEPUDA or the EEA, have expanded on a requirement for proving disadvantage and its causes. In this regard it has been mooted that the country's history of past discrimination of colonialism, apartheid and patriarchy and its resultant disadvantage for specific groups are sufficiently notorious to form a proper subject for judicial notice: It is not contentious as a social fact - it is a matter of historical knowledge. Moreover, this history - its traditional or common causes and effects on blacks and women - has been extensively and widely documented. Using the doctrine of judicial notice in this context is apposite where a majority black people and women, who have been unfairly discriminated against, disadvantaged and deprived of their dignity, must now be advanced and integrated into the new South African order.
Such an approach will have regard to contemporary aspirations and expectations of the South African population and will contribute to healing the divisions of the past, a vision expressed in the preamble to the Constitution. It will also foster the notion of substantive equality -a group-based notion- against the background of centuries of systemic racial discrimination and patriarchal subordination. Such a construction makes sense from an historical, socio-economic and legal perspective and complies with the Constitution's value-based interpretation methodology. It will contribute to achieving the long term goal of a non-racial, non-sexist South African society in which each person will be recognised and treated as a human being of equal worth and dignity.

In essence, it is not necessary to prove historical discrimination and disadvantage. The majority approach in the Van Heerden case that disadvantage must be "shown" is supported only in so far as information needs to be put before the courts by way of reference to books, reports and/or employment equity plans. If this is not done, the court may take judicial notice out of its own accord of unfair discrimination and disadvantage.
However, as educational, social and economic realities between the races, intra-racially and between the genders change in South Africa, the concept of judicial notice for these concepts will have to be revisited.