As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
First let us get the facts straight: the claim by Solidarity that one million of all economically active “coloured” South Africans in the Western Cape will have to earn a living in another province, while over one million “african” South Africans would have to relocate to the Western Cape province if the proposed amendment to the Employment Equity Act were to be implemented according to the letter of the law, is alarmist and wrong.
The Employment Equity Act, which regulates “affirmative action” (I prefer the term “corrective measures”) in the workplace, does not require employers to fire existing employees in order to achieve employment equity targets. One million economically active “coloured” workers will therefore not be forced to move to other provinces to find work in the near future. Section 15 of the Act states that designated employers must take affirmative action measures which must include:
These measures may include preferential treatment for certain groups and setting numerical goals for the attainment of targets, but cannot include quotas. This means that strict quotas, which guarantee a certain percentage of jobs for a certain race group, is not legally permissible.
In practice designated employers must draw up employment equity plans in which they set out the targets they wish to reach over a specific period in each of the work levels in the company for each of the designated race groups (which are defined in the regulations in terms of apartheid race categories as being “whites”; “coloureds”; “indians” and “africans”). At present, section 42 of the Act states that in determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General of Labour must in addition to the factors mentioned above, take into account all other factors mentioned in section 42 which includes the:
(i) demographic profile of the national and regional economically active population;
(ii) pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees;
(iii) economic and financial factors relevant to the sector in which the employer operates;
(iv) present and anticipated economic and financial circumstances of the employer; and
(v) the number of present and planned vacancies that exist in the various categories and levels, and the employer’s labour turnover.
This means at present the Director General must evaluate an Employment Equity Plan by taking into account all these factors. He or she cannot only take into account the demographic profile of the economically active population in a province. He or she would also have to consider whether there are sufficient numbers of suitably qualified persons of designated race groups in that province to make appointment of such persons possible.
If the Director General is of the view that the Employment Equity Plan is not being implemented in accordance with the law, he or she can then order the employer to take specific steps to ensure implementation. If the employer fails to adhere to these instructions the employer can be referred to the Labour Court who can then make far reaching orders, including the imposition of fines on employers to ensure that they begin to comply.
In practice this means that many employers will try very hard to appoint or promote individuals from groups that are underrepresented. As the Director General must take into account the regional racial demographics when considering whether a company is compliant, this means that in the Western Cape employers will comply with the Act as long as they steadily work towards reaching employment targets that would include about 55% “coloureds”, 30% “africans” and 15% “whites” at all levels of their business. This can be done through promotion and new appointments but practical considerations — such as the availability of suitably qualified employees of under-representative groups for appointment — will be taken into account and will “excuse” employers who have not managed to reach their targets.
In the public service many departments (including the police and the department of correctional services) do not take into account regional racial demographics. This makes it very difficult for a coloured persons in the Western Cape to be appointed as policemen and prison warders or to be promoted to higher ranks once appointed. It is far from clear that these policies as they are currently implemented comply with the Employment Equity Act. I suspect the proposed amendments are aimed at providing legal cover for this policy which, in effect, discriminates against black South Africans who happen to live in the Western Cape and happen to have been classified as “coloured” by the apartheid state.
The amendments to section 42 say that the Director General may, in addition to the factors stated in section 15, take into account a long list of factors including the “demographic profile of the economically active population” when deciding whether an employer is complying with the obligations udner the Act. There are two very important changes proposed here.
First, instead of having to take into account all the listed factors in section 42, the Director General may take into account one or more of the factors he or she chooses. He or she may or may not take into account the demographic profile of the economically active population. He or she may or may not take into account the pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees or the economic and financial factors relevant to the sector in which the employer operates. The discretion provided for the Director General is frightening and gives him or her power to manipulate a finding to target specific employers even when such employers have valid reasons for not employing or promoting more african employees.
Second, when the Director General makes this finding, he or she could focus exclusively on the national demographic profile of economically active population and tell an employer that the employer is not complying with the Act – even if the employer can show that in the Western Cape the pool of suitably qualified “african” employees from whom the employer may reasonably be able to appoint or promote people to bring the employment profile in line with the national demographic profile of the country are not sufficient to reach such goals.
I suspect the current government practice as well as this proposed amendment will be declared unconstitutional by the Constitutional Court. At the heart of the requirements for a valid affirmative action programme is the following dicta from the Constitutional Court in the case of Minister of Finance v Van Heerden:
However, it is also clear that the long-term goal of our society is a non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity. Central to this vision is the recognition that ours is a diverse society, comprised of people of different races, different language groups, different religions and both sexes. This diversity, and our equality as citizens within it, is something our Constitution celebrates and protects. In assessing therefore whether a measure will in the long-term promote equality, we must bear in mind this constitutional vision. In particular, a measure should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened.
Although a million “coloured employees will not be fired overnight as claimed by Solidarity, the new amendments, if adopted, will require – at the discretion of the Director General! – a radical and highly disruptive programme of affirmative acton that would make it almost impossible for a “coloured” person to be appointed or promoted in the Western Cape. This will place such a substantial burden on “coloured” South Africans living in the Western Cape that I would be surprised if our Constitutional Court would find this provision to be constitutionally valid.
Of course, regardless of the legal issues, as a political matter this proposal will come as a godsend to the DA in the Western Cape. It is as if the ANC is begging the majority of voters of the Western Cape to rather vote for the DA and not for it. Although the consequences of the amendments are not as dire as reported, they are still potentially pretty radical and the fact that some bright spark could have come up with this proposal without any regard for either its constitutionality or the political effects it might have and that this could then be approved by the cabinet perhaps demonstrate that the Zuma government is more clueless and rudderless than one might have thought.BACK TO TOP