Flawed dept's employment equity plan must fail, ConCourt hears

Johannesburg - In a case that could have wide implications on how employment equity is applied, it was argued before the Constitutional Court on Wednesday that the Department of Correctional Services' equity plan is wrong and allows for unfair discrimination. 

Jeremy Gauntlett SC, for trade union Solidarity, argued that the Department of Correctional Services' employment equity plan did not comply with the Employment Equity Act.

A key reason for this was that the plan did not look at regional demographics when promoting an employee and stuck rigidly to national demographics. 

Regional demographics are the numbers of people according to race, or other factors such as disability, in a particular area. The department's plan apparently looked at the national demographics, appointing people based on the race numbers across the country. 

One of the arguments against national demographics is that some race groups might be higher in specific regions, like coloureds in the Western Cape, or Indians in Durban, and if the national demographics were taken into account, people from those groups would be unfairly discriminated against in their own areas. 

At the heart of this case are judgments by the Labour Court and Labour Appeal Court on 10 Western Cape employees of the department, nine coloured and one white, who were not promoted despite being recommended for it, according to Solidarity. 

The Labour Court ruled that the department had to ensure both national and regional demographics are taken into account when setting equity targets. 

The department's plan, however, was not set aside by the court and no relief was provided for the 10 employees. 

The matter was brought to the Labour Appeals Court, which dismissed appeals from both Solidarity and the department. 

Solidarity and the employees then approached the Constitutional Court. 

"What went wrong was the department's plan employed a national statistical cookie cutter... in terms of employment obligation," Gauntlett argued. 

National demographic

He said the department's plan, by rigidly following the national demographics, lacked flexibility and nuance and ultimately did not provide a sufficient means for deviation from that plan. 

"If the plan is in conflict with the Act, it must be... squarely set aside."

He said the Labour Court judgment "lacks teeth and even gums".

"It brought no justice to my clients."

Gauntlett used the example of one of the employees, Mr February, who was found to stand "head and shoulders" above other individuals for promotion. 

"You will see a recommendation was made to grant a deviation for him from the plan."

The commissioner said the deviation was not approved and in the document ended off with "an emoji, which is the opposite of a smiley face", according to Gauntlett.

Solidarity is also arguing that the 10 employees retroactively be compensated for the positions they would have been promoted to and that they be moved into the promoted positions once they became available. 

Marumo Moerane SC, for the Department of Correctional Services, argued that the plan had already ceased to exist. 

"I don't know what the point would be by setting aside that plan," he said. 

Moerane, who argued that the plan was flexible and allowed for deviation, faced a barrage of questions from the justices.

Flawed plan

Justice Chris Jafta said if the plan was used to deny the promotion of someone, what would happen if the plan was flawed. 

"If the plan is invalid, the shield is taken away. The causal link is there. They were recommended and because of the plan they were not appointed," Jafta said.

Moerane said that of the 10, only a few were recommended, and that was why, even if the plan was nullified, they could not be granted remedies. 

He argued that if regional demographics were taken into account, in the Free State, the number of Indians, for example, in the area would be considered for fewer positions because there were fewer of them.

At this point Justice Johann van der Westhuizen asked what would happen if jobs were advertised in a part of Limpopo where there were no whites and, according to national demographics, a white person should be appointed in one position. 

"Will they [the employer] refuse to promote an African person? Must the position be kept open until a white person is appointed?"

Moerane said a black person could be appointed.  

Van der Westhuizen responded: "Is that not looking at regional demographics?"

Moerane said: "It is about practical considerations."

Van der Westhuizen asked what would be different in a place like the Western Cape. 

"Are we not promoting representivity over equality? With categories of previously disadvantaged communities, we must make distinctions of representivity?

"Yes," Moerane replied. 

Van der Westhuizen asked why someone could be turned down for a promotion for which they were recommended when they could simply be moved to another area where they could be represented. 

"What if one gets a promotion and a higher salary and moves from Cape Town to Pretoria, where you will now have to shout for the Bulls instead of Province?

"Are there not more imaginative ways... than to have a situation where you are denied because, to use an unfortunate term, there is an oversupply of you in a place?"

Moerane responded that that is already happening. 

"Then why the Western Cape, do they not want to move?" Van der Westhuizen asked.

Moerane said Solidarity wanted the "regional status" of the Western Cape to be preserved with around 50% of coloured people.

Justice Robert Nugent said Gauntlett said previously there should be a "balancing act" with respect to appointments and that was not what Solidarity wanted. 

Justice Edwin Cameron asked Moerane where Solidarity mentioned they wanted to maintain the Western Cape figures for coloureds in their papers. 

He responded that Solidarity said this previously. 

'Oversupply'

The term "oversupply" was controversially used by former government spokesperson Jimmy Manyi on the number of coloured people in the Western Cape in 2011. 

"They should spread in the rest of the country... so they must stop this overconcentration situation because they are in oversupply where they are, so you must look into the country and see where you can meet the supply," Manyi said at the time. 

Former Minister in the Presidency Trevor Manual described the comments as "racist". 

Vuyani Ngalwana, who represented the Police and Prisons Civil Right Union as an amicus curiae in the matter, told the Constitutional Court on Wednesday that it should hand down a sanction against Solidarity. 

"As amicus, we have no business asking for cost, but this is a special case," he said.

"The court should consider some sanction against Solidarity... they are repeating the same argument in different courts and this abuse of the courts cannot continue."

Judgment was reserved.

This article first appeared on News24 – see here.