Solidarity v Govt: Agreement on race becomes a court order

31 October 2023

The agreement between Solidarity and the government, which drastically changes the race policies of companies, was made an order of the court in the Labour Court in Johannesburg today.

This agreement came after Solidarity had lodged a complaint with the International Labour Organisation (ILO), an agency of the United Nations Nasies, against the government’s rigid approach to race. A mediation process between Solidarity and the SA government under the supervision of the ILO ensued ,which eventually led to the agreement reached.

The court order also states that the terms of the agreement must be published as regulations in the Government Gazette.

Moreover, the agreement and the court order stipulate that no person may be dismissed or retrenched on the basis of race or as a result of race plans.

It further stipulates that race policies must be temporary; that race may not be the only factor when plans are drafted; and that the pool of available skills as well as companies’ unique circumstances must be taken into account.

Another provision lists the circumstances in terms of which a company may motivate and explain its non-compliance.

According to Dr Dirk Hermann, Solidarity chief executive, the era during which only race demographics were set as targets, is a thing of the past. A calculator approach to race is now quite simply unlawful.

“The government’s race regulations published for comment earlier this year, will not survive this agreement either. Many companies that have complied with them, and especially the government’s race plans, are now also unlawful.

“Companies will have to go back to the drawing board to see to it that their race plans comply with the terms of the agreement with Solidarity and that they heed the court order. It gives clear guidelines on how race laws should be interpreted,” Hermann said.

Hermann believes that after this, many uncertainties in the workplace will be cleared.

“The government is now obliged to publish the agreement as regulations. If the court order is not complied with, the government, the President and the Minister of Employment and Labour could be charged for contempt of court,” Hermann said.

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

Hermann says these developments can be regarded as an important breakthrough.

It is a historic event that an international body has helped to facilitate a settlement on race. Although this agreement will completely change the race policy landscape in the country and an important battleground has been won, the war against the government’s race ideology has not yet been won.

“Solidarity and the government will again appear before the United Nations at the end of November. Solidarity has again submitted a report on affirmative action in South Africa to the UN, asking for clarity about an end date for race policies in South Africa,” Hermann said.

Issued by Dirk Hermann, Chief Executive Officer, Solidarity, 31 October 2023