ANC must reject racist regulations

Note to Editors: This statement was distributed at a Press conference held at the Northern Cape Provincial Legislature in Kimberley this morning.

The new employment equity regulations announced by the Minister of Labour, Mildred Oliphant, amount to racial discrimination. If adopted, it will put coloured South Africans out of jobs almost immediately. It will make our economy less competitive and will kill jobs for everyone over time.

The DA will do everything in its power to stop these regulations from being implemented. We formally challenge the ANC in the Northern Cape to break its silence and take a stand on this issue. They too must petition national government to stop this from going ahead.

Let it be clear that the DA supports employment equity and BEE which supports diversity and creates opportunity and real jobs, however the ANC of Jacob Zuma's approach achieves neither. The regulations mean that, although coloured people in the Northern Cape make up 40% of the population, they may only comprise 9% of professional and senior staff levels in any enterprise or institution.

The Zuma ANC is effectively cutting out large segments of the population from the economic life of the province, further entrenching the poverty many people live under in this province. This is of great concern in light of the national unemployment rate amongst coloureds is 26.8%, meanwhile the Northern Cape's expanded unemployment rate is a staggering 34.8%.

There are a number of serious problems with the regulations:

1) National demographics, not provincial demographics:

The regulations force all firms to use national demographics to determine the ideal racial make-up of top management positions. The problem is that the Northern Cape's demographics are very different from the national demographic profile. There are more coloured South Africans in the Northern Cape than the national average.

This means that coloured South Africans will not be able to get promotions in the Northern Cape, and those in management positions will be at risk of losing their jobs.

We will fight for regional demographics to be used in each case, to make sure that everyone in the Northern Cape has a fair chance at jobs and promotions.

All previously disadvantaged people should be empowered by employment equity legislation. Coloured South Africans also suffered under apartheid and deserve to be treated with respect in the empowerment process.

2) Constitutionality of the regulations:

We have serious concerns over the constitutionality of these regulations. The Constitution enshrines equality between citizens, and prohibits indirect or direct unfair discrimination on certain listed grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

A brief Constitutional analysis makes it clear that the impact of the use of national demographics results in a serious Constitutional infringement, both in terms of Section 23(1) of the Constitution, the right to fair labour practices, as well as the rights to dignity and equality.

This is not to say that race-based redress policies are necessarily unconstitutional. The Constitution makes it clear that legislation can in fact justifiably discriminate in order to promote equality, but it has to protect individuals who have been the subject of unfair discrimination and it must promote equality.

Applying national demographics to the Northern Cape, and effectively cutting coloured South Africans off form advancement opportunities, does not live up to this requirement - it does not promote equality and does not protect a previously disadvantaged group of people.

3) Concentrated Ministerial Power:

These regulations were never discussed by Parliament, or voted on by democratically-elected representatives of the people. It has merely been issued by the Minister of Labour to fill the gaps of ambiguous legislation.

A massive policy decision is being made with no oversight or debate whatsoever. This issue should be debated in Parliament and legislated properly. The Minister cannot "rule by regulation" without debate or discussion.

4) Making the Northern Cape economy less competitive:

These regulations will add yet another layer of expensive and burdensome regulations to business' operations. That increases the cost of operating a business. It makes business less competitive and ultimately means that businesses will grow slower and create fewer jobs.

There are a number of other technical problems with the regulations that will make it difficult to implement. The DA's full submission to government on the issue (see attachment) discusses all of our concerns in more detail.

The employment equity debate has some important history to it that must be kept in mind. There have been numerous court cases on this issue that set precedents for legality of employment equity implementation.

In the court case of Jennila Naidoo v The Minister of Safety and Security, Naidoo was blocked from promotion because the SAPS had used national demographics in their employment equity plan. By using national demographics, the target for Indian females in the level of employment she applied for was so small that it amounted to zero. She was blocked from being appointed, even though she was one of the best candidates for the job, because she was an Indian female. The same would apply to coloureds in the Northern Cape.

In Jennila's case the court luckily found that the SAPS had been wrong. But now there are new regulations, and the new regulations say that national demographics must be used. The new regulations say that despite democracy, our destiny is still inescapably determined by our race.

In 2010, then Director General of Labour and government Spokesperson, Jimmy Manyi claimed that: "Indians, we should be having only 3% [of positions on management]. They are sitting at 5.9%. I call it the power of bargaining. Indians have bargained their way to the top." That same year Manyi also claimed that there was an "over-supply" and "over-concentration" of coloured people in the Western Cape.

We categorically reject the use of national demographics to unfairly disadvantage Indian and coloured South Africans in KZN, the Western Cape and the Northern Cape.

Instead, the DA has a clear economic inclusion policy which will incentivise job creation for everyone. We would:

-  Reject racial quotas in favour of programmes that actively promote advancement of black, coloured and Indian South Africans by extending opportunity;

-  Encourage investment in the long-term potential of staff and to promote diversity through training and mentoring;

-  Incentivise companies to implement programmes of black, coloured and Indian advancement rather than punitive measures that hamper growth and jobs; and

-  Promote alternative equity practices such as employee share ownership schemes.

Helen Zille, in her capacity as Premier of the Western Cape, has already requested a legal opinion on behalf of the Western Cape government as to whether certain sections of the Employment Equity Act and these draft regulations are lawful and constitutional. Once the legal opinion is received, the DA-run Western Cape government will announce further steps in this regard.

We will do everything in our power in the DA, but also in the governments that we run, to stop these regulations from being implemented and to ensure that everyone has a fair chance at success in South Africa.

We invite every South African to stand with us on 7 May to stop the unfair exclusion of Indian and coloured South Africans in KZN, the Western Cape and the Northern Cape. We need to work together for change and together for jobs.

Issued by Andrew Louw, DA Northern Cape Premier Candidate, April 2 2014

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