An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
I am somewhat surprised by the response to the proposed amendments to the Employment Equity Act (EEA) which would allow the Director General to take into account only the national demographic profile of the workforce in determining whether an employer had complied with its affirmative action obligations in terms of the law. The ANC and its alliance partners have at best been disingenuous and at worse have been trying to mislead the public (that is another way of saying that they might have been lying through their teeth) when they commented on this issue.
In response to the somewhat alarmist statements of Solidarity about the proposed amendments to the EEA, ANC Chief Whip Mathole Motshekga said the “so-called research” of Solidarity was a “dangerous political game” and that it was unthinkable that the ANC would seek to disadvantage those it had liberated and sought to empower. Cosatu described the union’s claims as “inflammatory and irresponsible”.
The problem is that these statements are not based on the facts. At present government Departments – including the Police and the Department of Correctional Services – are already using the national racial demographic profile of the country when they devise and implement affirmative action policies. This is despite the fact that the Act proper does not draw a distinction between various black people in South Africa and states that “black people” [who is a designated group who may benefit from affirmative action measures] “is a generic term which means Africans, Coloureds and Indians”.
Just the other day I had a delegation of senior managers in my office complaining bitterly about the manner in which the government department for whom they work was implementing affirmative action policies in the Western Cape. I was told that coloured people in the Western Cape had little chance of being employed in the Western Cape by this Department and that “coloured” members of middle management had almost no chance of being promoted because in terms of the national racial demographic profile they were overrepresented in that Department in the Western Cape.
When a suitably qualified “african” candidate could not be found to promote in the Western Cape, the post was not filled — despite the fact that many qualified ‘coloured’ applicants had applied for the job. The National Commissioner, so I was told, had instructed that these posts had to remain unfilled until such time as a suitably qualified “african” could be found to fill it. This instruction is clearly unlawful in terms of the jurisprudence developed by our courts.
In other words, instead of implementing the necessary affirmative acton programme in a sensible and context sensitive manner as required by the law, some Departments are in effect demanding that in the Western Cape certain quotas for “africans” be filled in their Departments and are refusing to promote “coloured” applicants until these quotas are met. This is not only unlawful, but it also punishes members of a group who have experienced severe racial discrimination in the past.
It was therefore not surprising to hear what Jimmy Manyi had said a few weeks ago about this issue. He now claims to have been speaking as the head of the Black Management Forum (BMF), but in fact he was articulating the policy that is being implemented by several government departments. Said Manyi:
I think it’s very important for coloured people in this country to understand that South Africa belongs to them in totality not just the Western Cape. So this over-concentration of coloureds in the Western Cape is not working for them. They should spread in the rest of the country… so they must stop this over-concentration situation because they are in over-supply where they are so you must look into the country and see where you can meet the supply. This Employment Equity Act (EEA) is a very good act in this country.
In the interview, Manyi also said the rest of the country should be looked at to see where there was a demand for coloured workers. Now, the ANC and its alliance partners could have responded to the controversy by stating that they had made a mistake and that they would now change the policy. Politically this would have been the smartest move. Or they could have confirmed what we all know, namely that the changes would merely extend a policy already applied by government departments to private employers in order to achieve what is believed by the government to be important objectives. They could then have put forward arguments about what these objectives were and why they were so important.
One justification could be that the EEA was wrong to define black people to include “coloured” South Africans. In other words, the ANC and its alliance partners could have argued that “coloureds” were not really deemed to be black and could therefore not be lumped together with “africans” for purposes of affirmative action. This would lead to the conclusion that an employer who employed a majority of “coloureds” in the Western Cape was not really “transforming” as true transformation could only be effected if the majority of employees at all levels were “african”.
Another justification could be that “coloureds” had been less disadvantaged by apartheid and enjoyed employment preferences in the Western Cape before 1994 and hence, to undo the effects of the social engineering of the apartheid era it was necessary to implement a radical process of reverse social engineering to “normalise” South Africa. (This would be the most plausible argument – although it is not an argument I would feel comfortable making. I support an affirmative action policy that is context sensitive and sensible – not one that is bloody-minded and may be aimed at punishing some, rather than at correcting the effects of past injustice.)
However, both these justifications would have been politically suicidal. As I wrote before, it would have been like begging the majority of Western Cape voters to vote for the DA. No wonder the ANC and Cosatu chose obfuscation and a less than honest approach to deal with the existing policy applicable to government departments which it now wants to extend to private employers.
These arguments would probably also not convince a court if the current government policy were ever to be challenged in the courts. Given the fact that an affirmative action policy will be unconstitutional if it placed an undue burden on an excluded group, given that section 21 of the Constitution states that “[e]veryone has the right to freedom of movement”, and that “[e]very citizen has the right to enter, to remain in and to reside anywhere in the Republic” and, lastly, that section 22 states that every citizen has the right to choose their trade, occupation or profession freely, a policy that would in effect force large sections of the population of the Western Cape to move to other provinces in order to get employed or to be promoted could hardly be said to be constitutionally valid.
So, it was therefore necessary to pretend that no such policy existed and to embark on the rather adventurous approach to the truth. To try and turn the tables and avoid political fall-out for its policy, the ANC and Cosatu had to blame those who had pointed out the obvious negative effects of these policies on a majority of Western Cape residents by saying the statements were inflammatory. The fact that the policy itself might be inflammatory was either not considered or was deliberately ignored.
Poor Jimmy Manyi. He is now in trouble for having been honest and for having admitted that it was official government policy to get large numbers of “coloured” people in the Western Cape to move elsewhere to get employment or to get promoted. This kind of honesty is always a dangerous thing in an election year. No wonder he had to pretend that when he said these things he was not reflecting government policy but was speaking as the head of the BMF.BACK TO TOP