The following is the minority dissent in the case of Solidarity and Others v The Department of Correctional Services before the Constitutional Court. Although the majority held that 7 of the Coloured applicants had been unfairly discriminated against because the DCS had applied national rather than regional demographics in its EE Plan, it said the plan itself did not represent a quota system.

It also denied justice to one of the applicants, Mr PJ Davids,  on the grounds that that "he is a White person and white people were already overrepresented in the relevant occupational level to which he sought appointment." The majority (full) judgement can be read here.

NUGENT AJ (Cameron J concurring)

[1] I support the orders proposed by my colleague Zondo J, except for a reservation I come to presently, but see the matter differently in a number of respects. It is necessary briefly to express my reasons for supporting those orders.

[2] This Court has for long been conscious of the enormous task of realising the transformational aspirations of the Constitution, and has been acutely aware of the difficulties that will be confronted along the way. It was foremost in the mind of this Court in Bel Porto where, grappling with equality in the education system, it was led to say:

“The difficulties confronting us as a nation in giving effect to these commitments are profound and must not be underestimated. The process of transformation must be carried out in accordance with the provisions of the Constitution and its Bill of Rights. Yet, in order to achieve the goals set in the Constitution, what has to be done in the process of transformation will at times inevitably weigh more heavily on some members of the community than others.”^[1]

[3] Two years later, in Bato Star, when considering the appropriate balance to be struck to facilitate equity in the fishing industry, the Court reflected once more upon the difficulties to be overcome:

“There are profound difficulties that will be confronted in giving effect to the constitutional commitment of achieving equality. We must not underestimate them.”^[2]

[4] More recently, in Barnard, writing for the majority, Moseneke ACJ eloquently expressed the objectives of the Constitution, applicable as much in this case as they were in Barnard, as plainly having a transformative mission. “It hopes to have us re‑imagine power relations within society. In so many words, it enjoins us to take active steps to achieve substantive equality, particularly for those who were disadvantaged by past unfair discrimination.”^[3] But he took care, in addition, to articulate the vigilance to be exercised in pursuing that goal:

“Our quest to achieve equality must occur within the discipline of our Constitution. Measures that are directed at remedying past discrimination must be formulated with due care not to invade unduly the dignity of all concerned. We must remain vigilant that remedial measures under the Constitution are not an end in themselves. . . . Their ultimate goal is to urge us on towards a more equal and fair society that hopefully is non-racial, non-sexist and socially inclusive. . . . We must be careful that the steps taken to promote substantive equality do not unwittingly infringe the dignity of other individuals – especially those who were themselves previously disadvantaged.”[4] (Footnotes omitted.)

[5] In a joint concurring judgment Cameron J, Froneman J and Majiedt AJ emphasised that timely caution; highlighting the tension that can arise from the Constitution’s commitment both to recognising and redressing the realities of the past, and to establishing a society that is non-racial, non-sexist and socially inclusive:

“[We] must note with care how these remedial measures often utilise the same racial classifications that were wielded so invidiously in the past. Their motivation is the opposite of what inspired apartheid: for their ultimate goal is to allow everyone to overcome the old divisions and subordinations. But fighting fire with fire gives rise to an inherent tension. That is why, as the main judgment observes, we must ‘remain vigilant that remedial measures under the Constitution are not an end in themselves.’ . . . We agree with the main judgment that, to exercise this vigilance, remedial measures ‘must not unduly invade the human dignity of those affected by them, if we are truly to achieve a non-racial, non-sexist and socially inclusive society’.”^[5] (Footnotes omitted.)

[6] The fact that balance must be brought to bear if those objectives are to be reconciled was stressed repeatedly by Van der Westhuizen J, who also said:

“[It] must be pointed out that equality can certainly mean more than representivity. Affirmative measures seek to address the fact that some candidates were not afforded the same opportunities as their peers, because of past unfair discrimination on various grounds. By focusing on representivity only, a measure’s implementation may thwart other equality concerns.”^[6] (Footnote omitted.)

[7] The nuances and complexities this Court has repeatedly recognised as inherent in the constitutional process of transformation have a practical bearing on this case. There is no sign in the Plan now before us of the just balancing required by Bel Porto and Bato Star, nor is there any recognition of the care and vigilance expressed in Barnard. Nor is there any attempt to harmonise the constitutional tensions that concerned the concurring judges, nor of the balancing that was urged by Van der Westhuizen J. In contrast to the thoughtful, empathetic, and textured plan one might expect if weight is given to what was expressed by this Court, what we have before us is only cold and impersonal arithmetic. A person familiar with the arithmetic functions of an Excel spreadsheet might have produced it in a morning.

[8] The arithmetic is founded on two ratios and no more. One is the proportional relationship to one another of the four major racial groups that make up our population, bluntly expressed as: “White 9.3%; African 79.3%; Coloured 8.8%; Indian 2.5%”. The other is a ratio of men to women, expressed in numbers, but equating to 60% and 40% respectively.[7]

[9] Those ratios are described as reflecting “SA Statistics of economically active population (Census 2006)”. The source of the figures is said to be “Stats SA, Mid‑year population estimates, South Africa, 2005 (Statistical Release P0302)”. Even that attribution was accorded disturbingly little care. First, it overlooks that Statistics Release P0302 was issued on 31 May 2005 and could not have reflected the outcome of a census conducted only in 2006.^[8] Second, there was no census in 2006.^[9] Third, the Statistics Release is not the source of the gender ratio that has been adopted.^[10] And fourth, the statistics in the Statistics Release reflect not the composition of the economically active population but the composition of the population as a whole.

[10] What follows the expression of those ratios in the Plan is a series of arithmetic tables. These allocate posts at various levels in the Department’s establishment in accordance with the ratios, comparing the allocations with the racial and gender composition of its then existing workforce, and recording the differences (referred to as “gaps”), to the last digit. At the foot of each table are instructions on what must be done to eliminate the “gaps” at the various levels. In each case the instruction records that a negative “gap” means “reduce personnel” and a positive “gap” means “appoint personnel”. What follows are the instructions at each level of the establishment:

“Levels 3-5:

“At level 3 only Whites and Indians should be appointed. At salary level 4 only 9 African Males, one African Female and one Coloured Male need to be appointed to balance representation of the workforce. At level 5 only African Females, Whites and Indians can be appointed.”

Levels 6-8:

“At level 6 African Females, White Females and Indians should be appointed. At level 7 Africans (M 684; F 3 039) 331 Coloured Females and 103 Indian Females should be appointed. At level 8 only Africans (157 m & 190 f) and 15 Indians.”

Levels 9-12:

“At levels 9 & 10 only 51 African Males, 198 African Females and 2 Indian Females can be appointed. At level 11 & 12 only 109 African Females, 5 White Females and 9 Coloured Females can be appointed.”

Levels 13-16:

“At level 13 African Males stand at 63 with a gap of -9 which indicates no African male should be appointed. 24 African Females, 4 Coloured Females and 1 Indian Female need to be appointed at this level. At level 14 only 3 African Females and 1 White Female needs to be appointed. At level 15 only 2 African Females and 1 African Male can be appointed.”

[11] That exposition gives the full substance of the Department’s Employment Equity Plan. It gives a flavour of how antithetical the Plan is to constitutional transformation that is respectful of the rights and interests of everyone. The remainder of the document incorporating the Plan comprises explanatory background, historical progress towards achieving the allocations, statements of policy, allocation of responsibilities, and directions for implementation.

[12] The hallmark of the implementation directions is that those responsible for making appointments must apply the racial and gender allocations unswervingly. If they do not they are at peril even of disciplinary steps:

“In the event of any form of non-compliance or deviation, concerned managers will be held accountable and action shall be taken by the Commissioner in line with section 24(1)(c) of the EE Act as a requirement by the Department of Labour who are ‘watchdogs’ on behalf of the public service.”

[13] My colleague finds those allocations not to be “quotas”, which are prohibited, but instead to be “numerical targets”, which are allowed.^[11] I disagree. They have the look, flavour and characteristics of quintessential quotas.

[14] A “quota” is a word in common usage. This Court used it liberally in Bato Star with no need to question what it means.^[12] Its meaning is given in various dictionaries, with nuances of language that all fit the present case. It means an allocation that is in some sense due. And it is self-evident from the tables, for example, that 197 posts at level 3 are “given” or “due” to Coloured women, and 84 posts are “given” or “due” to Indian men (Oxford English Dictionary).^[13] And that 79.3% of posts throughout the establishment are “proportionately assigned” to African people (Black’s Law Dictionary).^[14] And that a maximum number of posts at each level are available only to each racial and gender group (Collins English Dictionary).[15]

[15] My colleague finds these are not “quotas” because the National Commissioner is entitled to deviate from the allocations. The Plan says the National Commissioner may do so where “special skills” are required that would not otherwise be available (examples he gives are doctors and social workers) or where “operational reasons” require them not to be applied. The judgment concludes on that basis that the allocations are not rigid and thus not quotas.

[16] The judgment draws for its reasoning on Barnard. There, Moseneke ACJ, while eschewing a definitive meaning of a quota, said nonetheless that “the primary distinction between numerical targets and quotas lies in the flexibility of the standard.”[16] He went on to say that section 15(3) of the EE Act “endorses numerical goals in pursuit of work place representivity and equity. They serve as a flexible employment guideline to a designated employer”.[17]

[17] The National Commissioner (but only the National Commissioner) is indeed entitled to deviate from the allocations in the special cases mentioned. That is expressly recognised in the implementation directives:

“The National Commissioner has the prerogative to appoint any candidate in accordance with the departmental Employment Equity Plan and is the only person who may deviate with valid documented reasons that will stand the test in [a] court of law.”

And:

“[Regional Commissioners] and [Chief Deputy Commissioners] must ensure that deviations or any appointment that is against the [Employment Equity] Plan is effected by the National Commissioner as the only person mandated to do so by the approved [Department of Correctional Services Affirmative Action] Programme. All scarce skills are considered where candidates from the under-represented group are not available. Reasons for [a] deviation request must thus be provided in a memorandum format. Non-discriminatory operational requirements / critical positions that are central to core business delivery may be considered by the National Commissioner.”

[18] But the approach of my colleague seems to me to misstate the enquiry. We are concerned with the general application of the Plan – not with special cases to which the Plan does not apply. When the National Commissioner deviates from the Plan to appoint doctors he is not implementing the Plan – he is excepting doctors from it. The critical enquiry is not whether there are special cases that are excepted from the Plan, but instead whether there is scope for flexibility when the Plan is applied to non-excepted posts.

[19] And there the Plan could not be more rigid. It is no answer to someone in a non-excepted post, like an administrator, or an accountant, or a prison warder, who is rigidly turned away because of his or her race or gender, to be told the Plan is flexible because they would have been appointed if they had been doctors. A flexible plan is one that allows flexibility in appointments to which the Plan applies in appointments of administrators, and accountants, and prison warders, as the case may be. A rigid allocation of posts is not made flexible by excluding some posts from its scope.

[20] These allocations are not at all the “guidelines” for appointment referred to in Barnard. Once the maxima in each category have been reached, they are rigid barriers to appointment to any of the approximately 40 000 posts in the Department’s establishment. I pointed earlier to the instructions that follow each of the tables – for example, “at levels 9 & 10 only 51 African Males, 198 African Females and 2 Indian Females can be appointed”, and so forth. If no factors other than the given numbers may be taken into account when applying the Plan, and there are none, that is not flexibility.

[21] The exception of special cases from the ambit of the Plan does not seem to me to be the flexibility Moseneke ACJ had in mind when he said in Barnard:

“[S]ection 15(4) sets the tone for the flexibility and inclusiveness required to advance employment equity. It makes it quite clear that a designated employer may not adopt an employment equity policy or practice that would establish an absolute barrier to the future or continued employment or promotion of people who are not from designated groups.”^[18]

[22] I respectfully adopt his description of “numerical targets” as “employment guidelines”. These imply at least a measure of discretion in their application. How else than with discretion is the Department to avoid unduly infringing the dignity of applicants for posts, which was the anxiety of this Court in Barnard, if the posts are for clerks and accountants, and not for doctors or social workers? The enquiry is whether there is flexibility in applying the allocations to these non-excepted posts.

[23] No doubt the allocations will most often be applied, as they must be if they are to function as guidelines. And no doubt in most cases the availability of a discretion will not have a significant practical effect. But without a measure of discretion race and gender operates as an absolute barrier to the appointment of some, as the individual applicants in this case discovered. What stood in the path of their appointment were quotas with no discretion to take account of other factors, like individual experience, application and verve, and this Court said in Barnard that rigid quotas “amount to job reservation and are properly prohibited by section 15(3) of the Act”.[19] On that ground alone the Department’s Plan is unlawful and falls to be set aside. I note my colleague’s references to how a witness and Counsel viewed the Plan. Whether or not the Plan is lawful is not determined by how they viewed the Plan. It is determined by what the Plan is as objective fact, and what the Plan is as objective fact is as I have stated it.

[24] Zondo J finds the plan to be unlawful on a narrow ground. This is its conflict with section 42(a)(ii) of the EE Act, in that it does not take account of the demographic profile of the economically active population regionally. On that I respectfully agree. Far from bringing the regional profile of the population to account, the Plan prohibits it. Regional managers are prohibited from taking regional demography into account by Employment Equity Plan Circular No 01 of 2011/12:

“Regions are not to develop their own regional plans based on the regional demographic profile of the economically active population but that the different regions are to develop own EE implementation plans to work towards realisation of the national numeric goals set for the entire department.”

[25] But section 42(a) expresses an important fact that is in any event inherent in the demographic profile of the population as a whole. This is its uneven distribution throughout the country. Without its uneven distribution being brought to account, the racial proportions of the population, as an entirety, are dangerously misleading if applied when compiling an employment equity plan.

[26] While affirmative action measures are directed to redressing past discrimination against the entire designated group, discrimination within the group is sanctioned if it is in pursuit of equitable representivity. The EE Act’s primary measure of representivity is the “demographic profile” of the economically active population.[20] A demographic profile is a statistical analysis of the characteristics of a population constructed upon whatever characteristics one chooses to analyse.[21] For powerful historical reasons the statute has focused on race and gender as markers of employment equity.

[27] But if the demographic profile of the population is to be the measure of employment equity then all the characteristics of the population that are relevant must be brought to account and not only some. To select only one characteristic, and ignore others that are relevant, will produce an irrational result, and irrationality is not countenanced by the law. As it was stated in Barnard:

“As a bare minimum, the principle of legality would require that the implementation of a legitimate restitution measure must be rationally related to the terms and objects of the measure. It must be applied to advance its legitimate purpose and nothing else. Ordinarily, irrational conduct in implementing a lawful project attracts unlawfulness. Therefore, implementation of corrective measures must be rational.”^[22]

And as it was expressed later by Cameron J, Froneman J and Majiedt AJ:

“We agree that rationality is the ‘bare minimum’ requirement. It can hardly be otherwise. In our law all exercises of public power must at least be rational.”[23] (Footnotes omitted)

[28] The nature of the enquiry mandated by the EE Act makes it clear that the racial[24] characteristics of the demographic profile were primarily what the Legislature had in mind, but there are many facets of those characteristics. To ascribe to the demographic profile of the population no more than the proportion of each racial group in the entire country, as the Department has done, is misleading and violates the clear statutory mandate. National proportions are but one characteristic of the population’s demographic profile. There are others.

[29] It is well established that a rational decision calls for all relevant factors to be brought to account and not only some, and what factors are relevant depends upon the purpose of the enquiry.

[30] The purpose of the EE Act for present purposes is representivity in the workplace. This is achieved by equitable access to employment opportunities – and employment opportunities are accessible to people only where they live. The objective of the EE Act is not to induce racial migrations to accommodate the statistics. Its objective is accessibility of employment opportunities and it achieves that objective only if it takes account where applicants for the posts are located. Statistics that serve as a tool for that purpose will be statistics that reflect the reality of the population, and the reality is that the races are not distributed uniformly throughout the country, which is not reflected in the Department’s Plan.

[31] If racial proportions are to be the measure of a representative workforce then they must necessarily reflect the distribution of the people making up those proportions. To do otherwise produces irrational anomalies, as is evident in this case.

[32] The great majority of Coloured people live in the Western and Northern Cape. The 2011 census revealed that Coloured people comprised 48.8% of the population of the Western Cape, and 40.3% of the population of the Northern Cape. In all other provinces except the Eastern Cape, where they comprised 8.3% of the population, their presence was negligible. In Limpopo they made up a mere 0.3%, while 96.7% of the population of that province were what the census calls “Black Africans”.

[33] Translating those proportions to numbers, at the time of the 2011 census there were some 16 000 Coloured people in Limpopo and some 5.2 million Black African people. Approximately 2.8 million Coloured people[25] and 1.9 million Black African people[26] lived in the Western Cape.

[34] I see no rationality in restricting almost half the population of the Western Cape to 8.8% of employment opportunities in that province, and simultaneously extending 8.8% of employment opportunities in Limpopo to 0.3% of the population. Of every 100 work opportunities in the Western Cape nine are made accessible to some 2.8 million Coloured people, while in Limpopo nine opportunities are made accessible as well to roughly 16 000 Coloured people. And while in Limpopo nine of every 100 posts are made accessible to roughly 16 000 Coloured people, only 73 are made available to 2.8 million Black African people, denying some 20% of employment opportunities to almost the whole population. Conversely, in the Western Cape nine of each 100 opportunities are made accessible to some 2.8 million Coloured people while 1.9 million Black African people have access to 73.[27]

[35] The same anomalies, albeit to a lesser degree, but equally irrational, apply wherever the distribution of the population has been ignored. Anomalies will necessarily abound when people are reduced to statistics. That is particularly so if the statistics bear no relation to the purpose for which they are used. Other irrational anomalies can be expected if the structure of the Department’s establishment were examined in detail, but that detailed structure was not in evidence before us.

[36] Applying the racial proportions of the population as a whole, without more, ensures every branch, every office, and every nook and cranny of the Department’s structure is constructed accordingly, but that does not then serve the purpose of an employment equity plan. If access to employment is to be allocated in proportions, one might expect it to be allocated relative to the proportions of the potential employees, not relative to overall proportions that lump together people who in fact live a thousand kilometres and more apart.

[37] The Department has provided no rational explanation for reserving posts to the various race groups with reference alone to their proportions as part of the national population, with no regard to their distribution, and I see none. It seems the Department considers the “demographic profile” of the nation to be solely its racial proportions. In that the Department is wrong. The racial proportions of the population are not its demographic profile. They are but one characteristic of the demographic profile, and in themselves they do not provide a coherent basis upon which to measure employment representivity. That is no doubt why the EE Act, and the 1999 Code of Good Practice issued under the EE Act,[28] expressly directs designated employers to take account of the regional profile of the population. But regional distribution is in any event inherent in the country’s demographic profile.[29] On that ground, too, the conclusion must follow that the Plan is irrational and in consequence unlawful.

[38] Stepping back from the separate grounds upon which I find the Plan to be defective, it seems to me they are all mere symptoms of a fundamental malaise. The passages from judgments of this Court I referred to all recognise that reconciling the redress the Constitution demands with the constitutional protection afforded the dignity of others is profoundly difficult. That goal is capable of being achieved only by a visionary and textured employment equity plan that incorporates mechanisms enabling thoughtful balance to be brought to a range of interests. It is only in that way that the constitutional tensions referred to in Barnard are harmonised. And it is in that way that the Constitution’s demand for a public service that is “broadly representative of the South African people” will be realised. Ours are a vibrantly diversified people. It does the cause of transformation no good to render them as ciphers reflected in an arid ratio having no normative content.

[39] So far as the proposed orders are concerned, having found the Plan was unlawful, it follows that it offers no defence to the claims of discrimination of all the applicants, including Mr Davids, and he, too, is entitled to relief. As this is a minority judgment I need not elaborate upon the relief I would grant to him.

Footnotes:

[1] Bel Porto School Governing Body and Others v Premier, Western Cape and Another [2002] ZACC 2; 2002 (3) SA 265 (CC); 2002 (9) BCLR 891 (CC) (Bel Porto) at para 7.

[2] Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (Bato Star) at para 76.

[3] Barnard above n 12 at para 29.

[4] Id at paras 30-1.

[5] Id at paras 93-4.

[6] Id at para 149.

[7] This ratio was adopted at salary levels 3-8. Salary levels 9-16 prescribed a 50:50 ratio.

[8] See Statistics South Africa Mid-year population estimates, South Africa: 2005 (statistical release P0302, May 2005), available at http://www.statssa.gov.za/publications/P0302/P03022005.pdf.

[9] A census was scheduled for 2006 but was postponed to 2011.

[10] The document reveals that the ratio 60:40 was adopted as a matter of policy for levels 3-8. At levels 9-16 the ratio adopted was 50:50.

[11] Section 15(2)(d) of the EE Act provides that: “Affirmative action measures implemented by a designated employer must include . . . measures to ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce.” Section 15(3) of the EE Act provides that such measures “include preferential treatment and numerical goals, but exclude quotas”.

[12] Bato Star above n 34 at para 1: “This application . . . concerns the allocation of fishing quotas.”

[13] The Oxford English Dictionary 2 ed (Clarendon Press, Oxford, 1989) vol 13 at 51: “2. The part or share of a total which belongs, is given, or is due to one.”

[14] Black’s Law Dictionary 8 ed (West Group, 2004) at 1285: “1. A proportional share assigned to a person or group: an allotment. 2. A quantitative restriction: a minimum or maximum number.”

[15] Collins English Dictionary 3 ed (HarperCollins, Glasgow, 2007) at 663: “1. Share that is due from, due to, or allocated to a group or person. 2. Prescribed number or quantity allowed.”

[16] Barnard above n 12 at para 54.

[17] Id.

[18] Id at para 42.

[19] Id at para 54.

[20] Section 42(a)(i) of the Act:

“In determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General or any person applying this Act must . . . take into account . . . [t]he extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational category and level in that employer’s workforce in relation to the demographic profile of the national and regional economically active population.”

The 2009 Code of Good Practice (2009 Code) issued under the Act records one of the purposes of “numerical goals” as being “to make the workforce reflective of the relevant demographics as provided for in Form EEA 8”, which groups the economically active population racially.

[21] Demographic profiles are classically constructed from the results of a census. From the results of the 2011 Census, for example, profiles have been constructed, for the population as a whole, and for each racial group, of its distribution, level of education, average household income, rate of unemployment, and so forth. See Statistics South Africa Census 2011 (statistical release P0301.4, 30 October 2012) available at: http://www.statssa.gov.za/publications/P03014/P030142011.pdf.

[22] Barnard above n 12 at para 39.

[23] Id at para 94.

[24] The gender profile of the population is not material for the outcome of this case and I have left it out of account in what follows.

[25] 48.8% of the population.

[26] 32.9% of the population.

[27] Adopting the approach taken by the Department, these illustrative figures relate to the population as a whole, and are not restricted to those who are economically active.

[28] Code of Good Practice: Preparation, Implementation, and Monitoring of Employment Equity Plans (GNR. 1394 GG 19370, 23 November 1999).

[29] The Labour Court at para 45 considered the later Code of Good Practice on the Integration of Employment Equity Into Human Resource Policies and Practice (GN 1358 in GG 27866, 4 August 2005) to conflict with the 2009 Code. On the approach I take to what constitutes the demographic profile of the nation, I do not think that is correct.