Wisdom of Solomon used in Solidarity v Correctional Services

THE applicants in a recent judgment reported in the South African law reports of October 2016, titled Solidarity v Department of Correctional Services, were coloured males and females.

These persons were denied promotion by the Department of Correctional Services in the Western Cape, a province in which there is a coloured majority, on the basis that this population group was over-represented in employment in terms of the said department’s national demographics-based 2010 Employment Equity Plan (EE Plan).

Both the Labour Court and the Labour Appeal Court held the Department’s EE Plan was unlawful because it set numerical employment targets for the different racial groups that were based exclusively on the national demographic profile, without therefore taking into account the regional demographic profile as it was obligated to do by virtue of section 42(1)(a) of the Employment Equity Act 55 of 1998 (EE Act).

However, neither of the above-mentioned courts set aside the EE Plan as invalid, nor did they grant the remedies applied for.

As a result, the applicants sought an appeal to the Constitutional Court for appropriate relief. This was granted in their favour by Judge Zondo, who made it categorically clear there is no place for racial domination in our constitutional dispensation.

This is indeed a great triumph for diversity and the philosophy of constitutionalism.

Acting Judge Nugent’s minority judgment in effect adds a second dimension to the equality jurisprudence. This involved the way he distinguished between quotas, which are prohibited, and numerical targets, which are permissible. In this regard his assessment is preferable to that of Judge Zondo.

Each of these judgments made an important contribution to realising the transformational aspirations of the constitution. They are able to assist us in understanding and applying affirmative in accordance with the constitution and the EE Act.

First, it should be noted the difficulties facing us as a nation in relation to transformation are profound and must not be underestimated.

Second, it must be borne in mind what we are trying to achieve is not mere formal equality, but substantive equality, which must bring about greater economic equality in the community as a whole, rather than merely treating all persons on an equal arithmetic basis, without considering the relevant circumstances.

Third, however, in realising this kind of sophisticated equality, due care (is made) not to invade unduly the dignity of all concerned. All of this requires that balance must be brought to bear in weighing up the relevant considerations.

Fourth, it must emphasised that equality can certainly mean more than representivity of persons in racial groupings. What is actually required is not only cold and impersonal arithmetic. This was the essential critique of the Department of Correctional Services EE Plan in the Solidarity case, which made virtually exclusive use of a series of arithmetic tables.

Fifth, the Solidarity judgment raises profoundly interesting jurisprudential issues.

It most certainly, it is submitted, (is) not the last word on these seminal issues, which have important constitutional and political consequences.

It advances the cardinal value of non-racism in the understanding and application of our constitution and has defused, it is submitted, a tense political situation, given expression to by Jimmy Manyi, who declared in a highly publicised comment in the media in 2011 that coloured people are over-concentrated in the Western Cape and need to move to other provinces to find jobs elsewhere and that in KwaZulu-Natal Indians are bargaining their way to the top.

Last, although transformation involving employment equity must be rational and fair within the context of the constitution and the EE Act, but not, it must be pointed out, necessarily always painless.

Where pain is inevitable and Africans are advantaged at the expense of whites, coloureds and Indians, we must accordingly be careful the steps taken to promote substantive equality do not unwittingly infringe the dignity of other individuals – especially those who were themselves previously disadvantaged.

This is important since in the Solidarity judgment it was the fate of coloured warders, who were discriminated against, that was at stake.

What is ultimately required is a judicious balancing of conflicting interests. In this regard, it is submitted the wisdom of Solomon is reflected in the judgments of Judges Zondo and Nugent.