The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
News that the Department of Correctional Services will have to defend its employment equity policy in the Labour Court now that the matter of three aggrieved “coloured” officers has been referred to that court by the CCMA, must be welcomed. It means that our courts once and for all will be able to give guidance on the permissibility of the use of the four apartheid era race categories in affirmative action policies.
The court will also once and for all be able to deal with the “Jimmy Manyi” scenario in which a company (or in this case a government Department) uses national racial demographics in its Employment Equity Plan, even in a province (like the Western Cape or Kwa-Zulu-Natal) where the local racial demographics differ sharply from the national demographics.
The three aggrieved “coloured” officers are objecting to an instruction by the department of Correctional Services that national demographics should be used for Employment Equity targets across the country – including in the Western Cape. According to the Employment Equity targets of the Department, some 79.3% of employees should be “black Africans”, 8.8% “coloureds”, 9.3% “whites” and 2.5% “indians”. People who used to be classified as “coloured” during apartheid make up 54% of the population of the Western Cape.
Three legal issues may arise in this case. First, given the fact that the Employment Equity Act does not state in the text that Employment Equity Plans of employers should or may distinguish between “black African”, “coloured”, “indian” and “white people”, but instead speaks of the advancement of “designated groups” which include “black people”, a term that is defined as being “a generic term which means Africans, Coloureds and Indians”, the question arises whether the regulations promulgated in terms of the Act which requires employers to distinguish between different types of “black” people is legally valid or not.
I would guess (but I might be wrong) that the Constitutional Court will not have a problem with this kind of distinction in the law between different categories of “black” South Africans. Many years ago the Durban Supreme Court in the Motala case found that it was acceptable for the University of Natal to distinguish between “indian” and “african” applicants to that institution’s medical school as these groups – although both “black” – have experienced different levels of discrimination under apartheid and cannot be said at present to enjoy the same social and economic opportunities.
The Constitutional Court has also stated that questions about affirmative action need to be evaluated in the particular social economic and legal context, and that it is a situation sensitive enquiry. The context in which the Employment Equity Act Regulations should be read is one in which the lingering effects of past apartheid distinctions based on “african”, “indian” and “coloured” race categories are still felt in our society. For example, in South Africa those who belong to the group classified as “indian” during apartheid are generally far wealthier than those who used to be classified as “african”.
Second, the question arises whether the Employment Equity Act allows an employer to use national racial demographics when setting employment equity targets – even where local demographics may sharply differ from national racial demographics. At present, section 42 of the Employment Equity Act states that in determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General of Labour must take into account all other factors mentioned in section 42 which includes the “demographic profile of the national and regional economically active population” and the “pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees”.
It must be noted that this section does not seem to impose a direct legal duty on an employer to take into account both national and provincial demographics (or to look at the pool of suitably qualified available employees available in the region) when devising an Employment Equity Plan. This suggests that there is nothing in the Employment Equity Act that prevents the Department of Correctional Services from using national instead of provincial racial demographics when devising and implementing an employment equity plan.
However, the Department of Labour must, inter alia, look at provincial racial demographics when it evaluates the Employment Equity Plan of the Department. This suggests that the Employment Equity Act may perhaps be interpreted to imply that the achievement of “employment equity” in a workplace can only be achieved if the regional and not the national demographics are taken into account. This interpretation is somewhat strained as section 42 requires the Department of Labour to take into account both national and regional racial demographics and it is far from clear whether these provisions could be read to place a legal duty on the Department of Correctional Services to use regional and not national racial demographics in its Employment Equity Plan,
Ultimately, the court will have to decide which interpretation is correct.
One must recall that section 13, read with section 15, of the Employment Equity Act states that what employers are legally required to do is to implement affirmative action measures for people from “designated groups: in order to achieve “employment equity”. “Employment equity” is not defined in the Act but section 15 defines the scope and limits of required affirmative action measures. It states:
(1) Affirmative action measures are measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer.
(2) Affirmative action measures implemented by a designated employer must include: (a) measures to identify and eliminate employment barriers, including unfair discrimination, which adversely affect people from designated groups; (b) measures designed to further diversity in the workplace based on equal dignity and respect of all people; (c) making reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer; (d) … measures to: (i) ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce; and (ii) retain and develop people from designated groups and to implement appropriate training measures, including measures in terms of an Act of Parliament providing for skills development.
The section further states that affirmative action measures will “include preferential treatment and numerical goals, but exclude quotas”. It also states that the section does not require “a designated employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups”.
I would suspect that these provisions, read holistically, might well be interpreted by a court to mean that the duty on employers to strive towards equitable representation of suitably qualified people from designated groups in the workforce requires them to take into account the regional and not national racial demographics when it formulates its affirmative action targets. As we know, the Department of Correctional Services’ current policy (which uses national racial demographics) in effect places an absolute barrier on the advancement of “coloured” correctional services personnel in the Western Cape – especially given the bloody-minded manner in which it is reportedly being implemented. Under the current plan, if a Western Cape officer working the Department of Correctional Services wishes to be promoted, he or she will almost always have to move to another part of the country.
Although the “coloured” personnel can, of course, apply for jobs elsewhere (where there is not – in the offensive words of Jimmy Manyi – an “oversupply of coloureds”), this requirement would place “coloured” members of the Department of Correctional Services in a very difficult position. If their roots are in the Western Cape, if their families live and work here, and if they speak predominantly Afrikaans, one of the dominant languages in the region, such employees may in effect be forced to choose either never to be promoted or to uproot themselves entirely. This may force many of them out of the service of the Department altogether.
This interpretation of the Employment Equity Act would be in line with the Constitutional Court’s jurisprudence on corrective measures as developed in the Van Heerden case, in which Deputy Chief Justice Moseneke stated that it was not constitutionally permitted to impose corrective measures on a group if those measures constituted “an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal” of achieving equality in a diverse society would be threatened. The Correctional Services Department’s policy may therefore be declared unlawful and not in line with the carefully interpreted provisions of the Employment Equity Act.
If the court found that the Act could not be interpreted in this way, I suspect it would have to declare unconstitutional the provisions in the Act which could be interpreted as allowing an employer to ignore regional racial demographics when it imposed an employment equity plan. This would be because such provisions (interpreted to allow for national demographics to be used exclusively when formulating Employment Equity Plans) would not meet the requirements for a valid corrective measures programme developed in the Van Heerden case.
Whatever happens, unless for strategic reasons the Department settles this matter to avoid a definitive judgment by the Constitutional Court on these vexing issues (something the Department would be well advised to do and which it might still do if good lawyers are advising it), the case will probably go all the way to the highest court, where that court will finally be able to put these highly contentious issues to rest by giving guidance on corrective measures that apply differently to people previously classified as “coloured”, “indian” and “african”.BACK TO TOP