Solomonic wisdom in EE plan ruling
THE APPLICANTS in a recent judgment reported in the South African law reports for October, entitled 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 department’s national demographics based 2010 Employment Equity Plan (EE Plan).
Both the Labour Court and the Labour Appeal Court held that the department’s EE Plan was unlawful because it set numerical employment targets for various racial groups based exclusively on the national demographic profile without taking into account the regional demographic profile as it was obliged to do by virtue of s 42(1)(a) of the Employment Equity Act 55 of 1998 (EE Act).
Judgment of the Court:
However, neither of the above-mentioned courts set aside the EE Plan as invalid, nor did they grant remedies applied for. As a result, the applicants sought in an appeal to the Constitutional Court for appropriate relief. This was granted in their favour in an important judgment delivered by Justice Zondo, who made it categorically clear that there is no place for racial domination in our constitutional dispensation or body politic. It is indeed a great triumph for diversity and the philosophy of constitutionalism. Once again the Constitutional Court demonstrated that it is in world class and delivered an exemplary judgment that promotes democracy in no uncertain terms.
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 Justice Zondo. Be that as it may, each of these judgments has made an important contribution to realising the transformational aspirations of the constitution. They are able to assist us in understanding and applying affirmative action in accordance with the constitution and the EE Act.
Important conclusions that can be drawn from Solidarity judgment:
First, in this regard, it should be noted that the difficulties facing us in relation to transformation are profound and must not be underestimated. Second, it must be borne in mind that 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 all the relevant circumstances.
Third, in realising this kind of sophisticated equality due care (must be taken) not to invade unduly the dignity of all concerned. Fourth, it must be emphasised that equality can certainly mean more than representivity of persons in racial groupings. What is 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 judgment raises interesting jurisprudential issues. It most certainly 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 a tense political situation, given expression to by Jimmy Manyi, who declared in a widely publicised, notorious comment in 2011 that coloured people are over-concentrated in the Western Cape and need to move to other provinces to find jobs, and that in KwaZulu-Natal Indians were 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, it must be pointed out it is not necessarily always painless. Where pain is inevitable and Africans are advantaged at the expense of whites, coloureds and Indians, we must be careful that the steps taken to promote substantive equality do not unwittingly infringe the dignity of other individuals, especially those previously disadvantaged.
This is important as 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. The wisdom of Solomon is reflected in the judgments of Justice Zondo and Nugent. George Devenish Emeritus professor at UKZN and one of the scholars who assisted in drafting the interim constitution in 1993.