Solidarity will litigate if president signs new race Act into law
23 August 2022
Solidarity today cautioned Pres. Cyril Ramaphosa in a letter not to sign the amended Employment Equity Act into law and to refer it back for review. However, if Pres Ramaphosa proceeds to sign it into law Solidarity would have to approach the court to once again force the government to do the right thing and to review the Act. This comes as the government has indicated that the president intends to sign this amended Act early in September.
Solidarity is of the opinion that this law is unconstitutional and that it is moreover in direct contravention of an earlier finding of the South African Human Rights Commission (SAHRC) indicating that racial legislation in South Africa, even in its current format, is unconstitutional and is not in accordance with international norms and values.
“It is incredible to see how far this government is prepared to go to carry out its agenda. This Act as amended is in contrast with the Constitution and with what is good for the South African society,” Dr Dirk Hermann, Solidarity Chief Executive said. “It ignores established international conventions South Africa is party to and it even calls into question the president’s mandate to act in terms of the Constitution.”
Solidarity further states that the president has the authority to question the constitutionality of proposed legislation and has the power to refer it back to the parliament for review. According to Solidarity, it is indeed not just a power the president has but a responsibility in terms of the Constitution towards every South African citizen.
“The proposed amendment to the Act in terms of which racial targets would be imposed on sectors will have disastrous consequences for our economy. In many instances it would deprive those lucky enough to keep their jobs of any possibility of promotion. This would mean that the skills exodus to other countries would only be accelerated and the South African economy – like its public service – would increasingly be trapped in a spiral of inefficiency, contraction and imminent collapse. The state’s obsession with race must be opposed at all costs. We simply cannot afford not to do it,” Hermann said.
Solidarity also makes it clear that it would not hesitate to litigate if this amended racial law is enacted as it currently reads.
“If there is no intervention this government will carry on with its policy of ineffective centralisation and it will even go so far as to take over the human resources function in organisations. This letter to the President is a last resort, one which should not be necessary in a functioning democracy. If the President does not accede to our demands, Solidarity will take him to court to have constitutionality enforced through the courts,” Hermann concluded.
Serfontein Viljoen & Swart
Attorneys, Conveyancers & Notaries
Our ref : Mr. Claassen/Mr. Venter/fb/CS0541
Date : 23 August 2022
TO: THE PRESIDENCY OF THE REPUBLIC OF SOUTH AFRICA
ATT.: PRESIDENT CYRIL RAMAPHOSA
UNION BUILDINGS
GOVERNMENT AVENUE
PRETORIA
BY EMAIL:
Dear Mr President,
IN RE: CONSIDERTION OF THE EMPLOYMENT EQUITY AMENDMENT BILL [B14 —
20201
1. We refer to the above matter and confirm that we act herein on behalf of Solidarity, a
trade union duly registered in accordance with the relevant provisions of the LRA (Solidarity).
2. We understand from Parliament's website that the Employment Equity Amendment Bill,
2020 [B14-2020] (the Bill), which seeks to effect amendments to the Employment Equity Act 55 of 1998 (EEA), has been presented to you for signature. The purpose of this correspondence is to:
2.1. bring to the attention of the President concerns about the constitutionality of the Bill;
2.2. emphasise that the President has the authority to challenge the constitutionality of
a bill presented to him for signature, consistent with his duty to uphold, defend and respect the Constitution of the Republic of South Africa Act 108 of 1996 (Constitution);and
2.3. urge the President to invoke his powers under section 79 of the Constitution.
3. Insofar as the constitutionality of the Bill is concerned, we attach submissions that
Solidarity presented to the Portfolio Committee on Employment and Labour (the Committee) as a precursor to the Committee's deliberations on the Bill. We do not intend to regurgitate the submissions herein, but we request that you seriously engage with the analysis presented.
4. The submissions highlight the importance of a balanced approach to affirmative action to survive constitutional scrutiny, and they discuss at some length the problems with the Bill from an international law perspective, and in particular the concerns in respect of South Africa's compliance with the International Convention for the Elimination of All Forms of Racial Discrimination (ICERD), which South Africa ratified on 10 December 1998.
In addition, the submissions address a report of the South African Human Rights Commission (SAHRC) in which it expressed the view that the EEA is not constitutionally compliant and recommended amendments that are not reflected in the Bill. Indeed, the Bill moves in the opposite direction of that which was proposed for consideration by the SAHRC, as discussed in full in the submissions. The introduction of sectoral "targets" moves the EEA closer to the adoption of quotas, and the proposed section 15A of the EEA appears to confer unfettered power on the Labour Minister, which is constitutionally problematic.
5. Solidarity not only made these written submissions, it also made oral presentation to the Portfolio Committee. As far as Solidarity can establish, the submissions have fallen on deaf ears and the Bill has progressed through the parliamentary process without amendment.
6. The President is the last port of call. In accordance with section 79(1) of the Constitution, the President must either assent to and sign a Bill that has been passed, or "if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration': We urge the President to consider the submissions on the constitutionality of the Bill that are enclosed herewith, and to refer the Bill back for reconsideration considering the concerns raised. To do otherwise, would be to shrug the constitutional duty in section 79(1).
7. We trust you will find the above in order
Yours faithly,
SERFONTEIN, VILJOEN & SWART
ENDS
Issued by Anton van der Bijl, Head: Legal Matters, 23 August 2022
