DCS EMPLOYEES IN THE WESTERN CAPE CHALLENGE THE IMPOSITION OF DEMOGRAPHIC REPRESENTIVITY IN THE PROVINCE
On 27 June 2011 the Department of Correctional Services (DCS) issued a circular to all its employees in which it spelled out its latest Employment Equity Plan. The plan gave strict instructions for the attainment of equality targets throughout the service. In the Western Cape, the target for black South Africans was 79.3%; for whites 9.3%; for coloureds 8.8%; and for Indians 2.5% to bring employees into line with national - and not regional - demographics.
This was despite the fact that coloureds comprise some 54% of the population in the Western Cape; whites 19%; Indians less than 1% and blacks 26%. (This is probably what Jimmy Manyi had in mind when he caused a furore in 2010 by stating that coloureds were ‘over-represented' in the Western Cape and should move to other provinces!)
The plan also established at what levels of employment blacks, coloureds, Indians and whites were over-represented - or under-represented. This meant that coloureds and whites - with 41.9% and 19.6% of the employees in the province respectively, were greatly over-represented at all levels of employment in the province and blacks - with only 37.8% of the employees - were significantly under-represented.
As a result, the Commissioner of Correctional Services prohibited the appointment or promotion of any more coloureds or whites. This was despite the fact that coloured and white applicants were often the best qualified and most experienced candidates for vacant posts. Repeated applications for deviations from the Employment Equity Plan were summarily refused or simply ignored.
Instead, the Department imported black employees from other provinces to fill vacancies in the Western Cape. The problem is that few of the imported officials were able to speak Afrikaans, the language of most of the prisoners in the province.
In the Foundation's view the DCS's Employment Equity Plan is illegal, unconstitutional and simply unfair. It is not in compliance with the Employment Equity Act 55 of 1998 which requires designated employers to set numerical goals in employment equity plans, having regard to the regional or provincial and national economically active population. The Plan ignores this requirement.
More seriously, we believe that the plan is unconstitutional. Non-racialism is one of the founding values in the Constitution. In terms of section 9(3) the state may not unfairly discriminate directly or indirectly against anyone on the basis or race - among other categories. Section 9(5) determines that discrimination is unfair unless it is established that the discrimination is fair. It is very difficult to see how the present discrimination against coloured employees - who were also victims of apartheid - can possibly be described as being fair.
The FW de Klerk Foundation accordingly helped a group of aggrieved employees to challenge the manner in which they have been treated by the Department. We facilitated pro-bono legal representation for them through Bagraims, a leading firm of labour attorneys in Cape Town. The case was subsequently joined with a similar case that was being conducted by Solidarity and has now, at last, come before the Labour Court.
The Foundation believes that the case is of historic importance: at stake is the crucial question of whether our society will continue to based on the foundational value of non-racialism - or whether the lives and careers of individual South Africans will once again be determined by their race.
Statement issued by Dave Steward, Executive Director of the FW de Klerk Foundation, April 25 2013
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