Department of Correctional Services not compliant with court order – Labour Court
Judge Annelie Basson, sitting in the Cape Town Labour Court, today found that the Department of Correctional Services (DCS) does not comply with an earlier court order in favour of the trade union Solidarity and 10 of its members.
According to Johan Kruger, Deputy Head of Solidarity, the court ordered that the National Commissioner, Mr. Zach Modise, must appear in court on 6 November 2015 to show cause why he should not be guilty of contempt of court for failing to comply with the court order of 18 October 2013. In terms of this court order, the DCS may not only take the national racial demographics into consideration when appointing and promoting employees, but should also consider the racial demographics of the Western Cape.
Solidarity Trade Union launched the application for contempt of court after the National Commissioner indicated last month that all vacant posts in the DCS had to be filled by 1 October 2015. Moreover, the DCS instructed all management areas to give preference to the national demography in the case of all appointments. Furthermore, the regional demography may only be considered by way of a special request to the National Commissioner.
“The process which the DCS is following now, is a clear violation of the court order. If the Minister fails to provide a satisfactory explanation or fails to appear, the court may order that he be fined or even incarcerated. Strict steps should be taken against government officials who think they are above the law”, Kruger added.
This prominent court case against the DCS began in 2012 when the trade union consolidated a number of cases regarding the department’s controversial affirmative action plan. In terms of this plan, the national demographics has to be reflected at all job levels irrespective of the profile of the province or region. Coloured South Africans constitute about 51% of the economically active South Africans in the Western Cape, and in many specific regions, the percentage is even higher, although they only constitute about 8,8% of the total population.
Constitutional Court
The case will be heard by the Constitutional Court on 3 November 2015. On 10 April this year, the Labour Appeal Court ruled in favour of Solidarity by determining that the DCS may not only take the national demographics into consideration when appointing and promoting employees. However, the Court still did not grant any individual legal remedy to the applicants and indicated that no clear evidence existed that the members would have been appointed in these positions if the DCS had used the region’s demographics as guideline. These two aspects moved Solidarity to approach the Constitutional Court.
Issued by Johan Kruger, Deputy Head, Solidarity, 9 October 2015
