Solidarity’s letter to employers about court order on racial laws

1 November 2023

Solidarity urgently wants to draw employer’s attention to the court order issued on the 31st of October 2023 in the Labour Court.

This court order activates the deed of settlement that Solidarity and the South African government reached earlier this year.

Here is the letter from Dr Dirk Hermann, chief executive officer of Solidarity, which employers should take note of:

Dear board members, executive management and human resources departments.

This is an important notice regarding racial policies.

As you may already know, Solidarity and the South African government reached an agreement on racial policies earlier this year. This agreement became a court order on 31 October in the Labour Court of Johannesburg.

This agreement follows Solidarity’s complaint they lodged with the International Labour Organisation (ILO), an agency of the United Nations (UN) against the government’s rigid racial approach. A mediation process between Solidarity and the South African government followed under supervision of the ILO which led to this agreement.

The court order stipulates, among other things, that the terms of the agreement must be published as regulations in the Government Gazette and the government supported this court order.

The agreement and court order further states that no one may be fired or laid off based on their race or any racial plans.

It also stipulates, amongst other things, for racial policies to be temporary, for race not to be the only factor when drafting plans and that the pool of available skills and the companies’ unique circumstances must be taken into account. The agreement also determines in what circumstances a company can motivate non-compliance.

Please note, rigid racial targets are therefore not legal.

Also note that the government’s racial regulations published earlier this year were never accepted and in their current format do not pass the test of the new agreement.

It is of critical importance to adjust all racial policies and plans based on this court order and agreement, and to ensure that it complies to both. It gives clear instructions on how racial laws should be implemented.

Many uncertainties have now been clarified. The government is now obliged to publish this agreement in the Government Gazette. If the court order is not complied with, the government, President and Minister of Employment and Labour can be charged with contempt of court. These parties all supported the agreement.

Solidarity will also not hesitate to test the government or any company’s non-compliance to the content of this order in court.

Solidarity and the government will once again appear before the UN at the end of November. Solidarity has once again submitted a report on affirmative action in South Africa to the UN and is asking for a clear end date for racial policies in South Africa.

You can already start making provisions in your company’s plans about an end date for racial policies. We will also keep you updated on the new process at the UN.

Please contact us for any further clarification.

Read the agreement here and the court order here.

Thank you.

Dr Dirk Hermann

Chief Executive Officer