FW DE KLERK FOUNDATION WELCOMES LABOUR COURT RULING ON EMPLOYMENT EQUITY
The FW de Klerk Foundation (the Foundation) welcomes a recent judgment handed down by the Cape Town Labour Court in Solidarity v Department of Correctional Services to the extent that the Court held that that using national racial demographics as the only measure for determining and implementing affirmative action targets, was unfair practice.
In June 2011, the Department of Correctional Services (the Department) issued its latest Employment Equity Plan, which gave strict instructions for the attainment of equality targets throughout the service. The targets - 79.3% for black South Africans, 9.3% for white South Africans, 8.8% for brown South Africans and 2.5% for Indians - would bring employees into line with national - and not regional - demographics.
This, despite the fact that brown South Africans comprise 54% of the population in the Western Cape. As a result, the Commissioner of Correctional Services prohibited the appointment or promotion of any more brown or white South Africans - despite the fact that brown and white applicants were often the best qualified and most experienced candidates for vacant posts.
The Foundation viewed the Department's Employment Equity Plan as illegal, unconstitutional and simply unfair. Non-racialism is one of the founding values in the Constitution. In terms of section 9(3) the state may not unfairly discriminate directly or indirectly against anyone on the basis of race - among other grounds. Section 9(5) determines that discrimination is unfair unless it is established that the discrimination is fair.
The Foundation accordingly helped a group of aggrieved employees to challenge the manner through pro-bonolegal representation by Bagraims, a leading firm of labour attorneys in Cape Town. The case was subsequently joined with a similar case that was being conducted by Solidarity.
In this joined case, Labour Court Judge Hilary Rabkin-Naicker found in favour of Solidarity and nine of the 10 employees of the Department of Correction Services on whose behalf Solidarity acted. It accordingly held that the nine brown employees (excluding the remaining employee - a white man), had suffered unfair discrimination.
The Court hence ordered that the Department must take immediate steps to ensure that both national and regional demographics are taken into account in respect of members of the designated groups when setting equity targets at all occupational levels.
Apart from dealing with the question of whether national and regional demographics should be taken into account, the Court was also asked to consider whether the Department's Employment Equity Plan was compliant with the Employment Equity Act (the Act) and the Constitution; and whether the application of the Employment Equity Plan amounted to unfair discrimination.
Not surprisingly, the Court, bound by the Constitutional Court's judgement in Minister of Finance & Another v Van Heerden and the High Court's judgement in SA Police Service v Solidarity on behalf of Barnard (and absent an argument that certain provisions of the Act were unconstitutional), held that affirmative action measures in conformity with the purposes of the Act were indeed aimed at achieving substantive equality. Judge Rabkin-Naicker hence rejected the notion that the restitutionary measures promoted by the Act by itself amounted to equal opportunity for designated groups.
The Court was therefore unwilling, on a technical point, to declare the Department's Employment Equity Plan (as such a restitutionary measure) to be in breach of the Act. In addition, the Court also failed to make an order as to the promotion or appointment of the respective individual applicants and refrained from making a cost order - despite the Court having found that the brown individuals were indeed discriminated against.
Section 195(1)(i) of the Constitution quite rightly requires that "public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past to achieve broad representation."
The Department's Employment Equity Plan, by contrast, aims at mathematical representivity down to the first decimal place - and not at broad representivity; it would not be representative of the South African people in the Western Cape; it is not based on recognition of ability, since it ignores the fact that the affected employees had been assessed as the most capable for the advertised posts; it is not based on objectivity but on the implementation of the ANC's subjective racial ideology; it is clearly not fair since it once again entrenches race as the sole criterion for promotion and would require brown employees of the Department to move away from their communities if they want to be promoted; and it does not redress imbalances of the past because because it creates new racial imbalances between the profile of the people of the Western Cape and the officials who are intended to serve them.
The Constitution, from the outset, recognises that equality in our society is yet to be achieved and that restorative measures aimed at achieving such substantive equality may be utilised. The Constitution, however, does not require demographic representation. Hence, although the finding in favour of the brown employees of the Department is a victory for the constitutional value of equality in this instance, the premise upon which the Act is seeking to find equality according to demographic representation, falls short of the constitutional values of non-racialism and remains to be tested in a higher court.
Statement issued by the FW de Klerk Foundation, October 19 2013
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