A victory for diversity

The Department of Correctional Services denied promotion to coloured males and females in the Western Cape, where there is a coloured majority, on the basis that this population group was overrepresented in employment in terms of its 2010 employment equity plan.

The Labour Court and the Labour Appeal Court held that the department’s plan was unlawful because it set numerical employment targets for different racial groups based on the national demographic profile, without taking into account the regional demographic profile as it was obligated to do.

But neither of the abovementioned courts set aside the plan as invalid, nor did they grant remedies applied for. As a result, the applicants sought appropriate relief in an appeal to the Constitutional Court.

This was granted in their favour in an important judgment delivered by Judge Ray Zondo, who made it categorically clear that there is no place for racial domination in SA’s constitutional dispensation or body politic.

It is a great triumph for diversity and the philosophy of constitutionalism. Once again the Constitutional Court has demonstrated that it is world-class and has delivered an exemplary judgment that promotes democracy in SA.

These judgments have made an important contribution to realising the transformational aspirations of the Constitution. They are able to assist in understanding and applying affirmative action in accordance with the Constitution and the Employment Equity Act.

Although transformation involving employment equity must be rational and fair within the context of the Constitution and the act, it is not 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 others, especially those who were previously disadvantaged.

George Devenish

Durban