DCS believes itself to be above the law - Solidarity

Trade union Solidarity will argue tomorrow in the Cape Town Labour Court that the Department of Correctional Services (DCS) is in contempt of an earlier court order in favour of ten of its members. Solidarity will argue that an order of incarceration or a stiff fine against the DCS National Commissioner, Mr Zach Modise, would be fitting in the circumstances.

On 9 October 2015, Judge Anneli Basson ordered Mr Modise to personally appear in court  on 6 November 2015 to provide reasons why he is not guilty of contempt of the court order issued on 18 October 2013. In terms of this order, the DCS must also take the racial demographics of the Western Cape into account when employees are appointed or promoted, and not only the national racial demographics.

“The DCS is not only in contempt of the 2013 court order; it is also in contempt of the actual process of obtaining a contempt of court order. Although the order to file opposing papers for these contempt proceedings was served on Mr Modise in early October, no such opposing papers have been received,” explained Solidarity Deputy Head Johan Kruger.

According to Kruger this is merely another example of the DCS’s belief that it is above the law and the rules of the court. “We look forward to see whether Mr Modise will be in court tomorrow and also to hear his explanation. His tardiness to file opposing papers and to execute the court order granted in favour of our members sends a clear message to our members and their supporters: ‘We are not in a hurry protect your rights’,” Kruger said.

Indications are that Judge Hillary Rabkin-Naicker, who granted the initial order in favour of Solidarity and its members in 2013, will preside in tomorrow’s proceedings. The very same judgement will be scrutinised by the Constitutional Court on18 November 2015. 

Members of the media are cordially invited to attend the court proceedings.

Date: 6 November 2015

Time: 10:00

Venue: Labour Court, 113 Loop Street, Cape Town 

Background

This prominent court case against the DCS began in 2012 when the trade union consolidated a number of cases regarding the department’s controversial affirmative action plan. In terms of this plan, the national demographics has to be reflected at all job levels irrespective of the profile of the province or region. Coloured South Africans constitute about 51% of the economically active South Africans in the Western Cape, and in many specific regions, the percentage is even higher, although they only constitute about 8,8% of the total population.

Constitutional Court

The case will be heard by the Constitutional Court on 18 November 2015. On 10 April this year, the Labour Appeal Court ruled in favour of Solidarity by determining that the DCS may not only take the national demographics into consideration when appointing and promoting employees. However, the Court still did not grant any individual legal remedy to the applicants and indicated that no clear evidence existed that the members would have been appointed in these positions if the DCS had used the region’s demographics as guideline. These two aspects moved Solidarity to approach the Constitutional Court.

Issued by Solidarity, 5 November 2015