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2022 U. Oxford Hum. Rts. Hub J. 1 (2022)

handle is hein.journals/uoxhruj2022 and id is 1 raw text is: A Critique of the Stigma Argument Against Affirmative Action in South Africa Nomfuido Ramalekana* Abstract One of the arguments against affirmative action is that it causes internal and external stigma towards its actual or perceived beneficiaries. In the US, the stigma argument has been so successful that it has narrowed the kinds of race-based affirmative action that can pass constitutional muster. While the stigma argument has yet to gain traction in South Africa, glimpses of this argument can be discerned in recent affirmative action cases. As is the case in the US, I fear that the stigma argument could be used to narrow the kinds of permissible affirmative action in South Africa, particularly in the employment context. This is because affirmative action in the South African employment context has features that could embolden the stigma argument. First, it targets Black people, women and persons with a disability - all groups subject to deeply entrenched systems of domination and oppression from which stigma arises. Second, the scope of permissible affirmative action in the South African employment context challenges the liberal meritocratic ideal in ways that could be said to cause stigma. In this article, I argue that while stigma is a pervasive and persistent predicament that attaches to the beneficiaries of affirmative action, it is not caused by affirmative action. Stigma predates and operates independently of affirmative action. It is rooted in unequal power relations inherent in systems of domination and oppression, in the South African employment context - white supremacy, patriarchy and ableism. I also 'I am a Lecturer at the University of Cape Town, Public Law. I would like to thank my PhD supervisor, Professor Sandra Fredman for engaging conversation and critical feedback on this research. A wan thank you to the Oxford Human Rights Hub Research Group - Sanya Samtani, Meghan Campbell, Jason Brickhill, Rishika Sahgal, Gauri Pillai, Gautam Bathia, Ndjodi Ndeunyema, Helen Taylor and Richard Martin. Thanks also to Meghan Finn at the University of Johannesburg for substantive comments on an earlier draft. Final thanks to the editors of the U of OxHRH J for their comments and support in writing this article as well as family and friends who support my wellbeing and bring joy to most days.

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