“Affirmative” (measures in) action? Revising the lawfulness of racial quotas (in South African (professional) team sports)

This contribution critically examines the lawfulness of the use of race quotas in the selection of South African (professional) sports teams. These quotas purportedly function as affirmative action measures, and their legitimacy in this light is considered with reference to relevant case law on affirmative action and, more specifically, on the use of quotas in the application of affirmative action (as this has featured in other contexts in the case law to date). In the process, the author evaluates the constitutionality of such quotas (with specific reference to their apparent irrationality in the specific context of (professional) sport and its nature and characteristics). The piece further considers the legitimacy of these quotas at the domestic level in light of the application of the applicable labour legislation (specifically the Employment Equity Act, 1998), and at the international level in light of the applicable rules of international sports governing bodies in the relevant sporting codes. The author concludes that these race quotas are unconstitutional and have no legitimate place in South African sport and in the continuing process of sports transformation, and calls for their abolishment as a matter of urgency.