Speech by Dr Dirk Hermann, Chief Executive: Solidarity to the 27th Annual Labour Law Conference, Sandton Convention Centre, August 10 2014
6 August 2014
The tyranny of representivity: Rethinking employment equity
This session is about rethinking employment equity. Rethinking employment equity? That's a fresh idea. In South Africa there is little room for debate on this subject. Anyone who challenges the state or the ruling party's notion of equality and affirmative action is regarded as anti-revolutionary, anti-transformation, a reactionary who hankers after the past or even a racist. The result is limited debate about the concept of equality and, at the same time, limited evolution of the concept.
My point today is that affirmative action directed away from the concept of equality as provided for in section 9(2) in the South African Constitution is a pure racial concept. Away from people to numbers. Away from temporary to permanent. Away from non-racial to racial. Affirmative action is not affirmative action anymore: it has evolved into an ideology that can be called the tyranny of representivity.
Renate Barnard
In September 2005 Renate Barnard, together with six other candidates, applied for position number 6903 in the police service. Renate was by far the best candidate and the panel was of the opinion that her appointment would definitely boost service delivery.
For all that, Divisional Commissioner Rasegatla decided not to have the position filled, as Renate's appointment would not have promoted racial representation.
In May 2006 the post was advertised again and Renate applied again.
Again, she was the best candidate and once again the recommendation of the panel went in her favour.
This time Rasegatla approved the recommendation and motivated that it would improve service delivery and send out the right message to Renate.
Jackie Selebi, National Police Commissioner at the time, then replied that the recommendation could not be approved as it would not advance representivity.
The same post was advertised a third time and Renate applied once more - only to learn of the abrupt decision to do away with the position.
The contents of equality
On Thursday, 20 March 2014 South Africa's Constitutional Court, for the first time, heard an affirmative action case, that of Renate Barnard, in terms of the Employment Equity Act.
This case is one of the most critical Constitutional Court cases in South Africa. Intrinsic to this case is the essence of equality, which is a core value of the Constitution of South Africa. This case will therefore help to define one of the fundamental concepts of the South African democracy. There is clearly no legal certainty about the meaning of equality in an affirmative action context. This is evident from the course the Renate Barnard case has followed through the South African courts.
At the very basic level, within the South African Police Service, it was decided that racial representivity and equality are equivalent. The premise is that if a job level is not representative of the national race demographics, then there is no equality. The SAPS's view is clearly evident from the following scene that took place in the Labour Court in Braamfontein.
Superintendent Ramathoka, a human resources professional, testified as follows:
"Then in that regard when we allocated the positions using the national demographic figures, in terms of representivity, eight positions of the 16 were supposed to be allocated to African males and no posts were supposed to be allocated to Indian males. One post was supposed to be allocated to coloured males. No post to white males. African females six posts allocated to them. Indians no post and coloured females, one post and white females no posts."
According to Ramathoka, an interviewing panel was not allowed to recommend people from the non-designated group if that group happened to be overrepresented. People from that group could apply for a position, but they would not be recommended.
"What is the point in allowing them or inviting them to apply?" asked Advocate Grogan.
And then followed Ramathoka's astounding reply that, in terms of the Employment Equity Act, an absolute ban on applications was not allowed. Whites could therefore submit an application; however, strict enforcement of the SAPS's plan meant they would not be recommended.
"That's cynical," Grogan said.
The judge was also confused: "Sorry, I just need to clarify something. Superintendent, I am confused. Are you testifying that the policy and process of the SAPS, once a plan has been issued which shows an overrepresentation in a particular position, is an absolute rule? That the SAPS will not, and may not, appoint a person from a non-designated group to that position, as an absolute rule?"
"It is an absolute rule, my lord," Ramathoka replied.
That is the view of the SAPS. Absolute race representivity equates absolute equality.
Absurd ideology
According to the well-known black US economist, Professor Thomas Sowell, there is no country in the world where the national race demographics are reflected exactly the same throughout the country.
It has never been achieved in the world and will never be achieved.
The state's idea of representivity has developed into an absurd ideology that does not take reality into consideration.
Yet, the state implements this idea indiscriminately and in ideological fashion.
This ideology of the SAPS finds general manifestation in the civil service. The recent court case of ten Department of Correctional Services (DCS) employees about affirmative action indicated just how absurd the ideology of absolute representivity can be.
In terms of this ideology, the national demographics have to be applied, even in a province such as the Western Cape. By implication, coloured South Africans have to be down-managed from more than 50% (the provincial demographics) to less than 10% (the national demographics).
This can only be done if a major social engineering programme is followed, in other words, forced removals.
We all recall Jimmy Manyi's words:
"This overconcentration of coloureds in the Western Cape is not working for them. They should spread in the rest or the country. There is a requirement or coloureds in Limpopo and all over the country. They should stop this overconcentration. Because they are in oversupply where they are. So you must look into the country and see where you can meet the supply." (sic)
Before you think it is only Manyi who may think forced relocation is appropriate in a democratic South Africa, listen to what the state's senior advocate, Bantubonke Tokota, argued in Solidarity's interdict application on behalf of Christo February versus the DCS:
"February could move anywhere in South Africa if the demographics in the Western Cape did not benefit him.
Take North West for instance, the population is mostly black. They need a combination of black, coloured and white people. The idea is to fill the gaps."
The Labour Court in Cape Town found that the use of the national demographics was unlawful. The state felt so strongly about the matter that it lodged an appeal.
The state took it even further by amending the Employment Equity Act and issuing new concept regulations that will force larger companies to implement the national demographics.
This brings us back to the Renate Barnard case.
Renate won in the Labour Court, lost in the Labour Appeal Court en then went to the Supreme Court of Appeal.
The case was heard in the Supreme Court of Appeal on 6 April 2013.
The judges grilled the state because it had not considered Renate's passion and skills.
Judgment was given on 28 November 2013.
Justice after eight years!
The judgment describes the Renate Barnard story as a typical South African story. It is about the challenges of a community on its way to a future in which everyone will have a place in the sun. The Renate story tells the story of a nation that is experiencing growing pains (end quote).
The judges wrote that as a result of her dedication and talent, Renate moved rapidly through the ranks.
In the process she was the only candidate who, during the selection process, had shown a unique mix of passion and enthusiasm to deal with members of the community who were unhappy with the police's service.
The judgment further reads that the panel, which included three senior police officers, had noticed those distinguishing features of Barnard and realised that they would enhance the police's service.
Referring to service delivery, it is stated that the post no doubt was a critical post. Such a senior post had to be created in the interest of a professional and efficient police service.
The judges rapped the SAPS rather harshly over the knuckles:
"One is left with the distinct impression that the explanation that the post was not filled because it was not critical was contrived. Moreover, the post was advertised on no less than three occasions, lending a lie to the assertion that it was not critical."
The judges found that the negative impact of a double rejection, on dubious grounds, of a loyal and dedicated member of the SAPS cannot be discounted.
Regarding representivity, the judges wrote that targets implemented in an absolute manner are nothing but quotas, and quotas are prohibited by law.
In brief, the judgment calls for a flexible and situation-sensitive approach.
However, the state decided to defend its racial policy all the way to the Constitutional Court.
On 20 March, in the case of Solidarity versus the State of South Africa, the Constitutional Court heard a battle of ideas about the content of equality in the workplace.
We still are waiting for the judgment, but the affirmative action landscape will never be the same after judgment has been given by the Constitutional Court.
Battle of ideas
Challenging the state's notion of affirmative action in court is not about opposing the constitutional imperative of equality and restitution. It may, in fact, be about giving a constitutional content to equality.
The battles in court therefore not only form part of a legal battle, but also represent a battle of ideas. I trust that the affirmative action debate will move from the courts to a mature political debate. The answer to affirmative action and the content of equality cannot simply be sought in the courts. We have to find it in healthy, yet robust dialogue.
Let's talk about rethinking affirmative action.
I believe in an input-based approach to affirmative action (that involves training and development). In terms of this approach, people will be capacitated to be successful and indeed be set free from the system.
I believe in an approach that accommodates specific situations, where the individual's passion and skills have to be part of the decision.
I believe that the pool of available skills has to be taken into account. The workplace in South Africa cannot be more representative than the skills supply.
I believe that good service is an affirmative action instrument.
I believe that society must take a stand against the idea of absolute representivity by which the national race demographics have to be reflected everywhere. Such a practice leads to absurd results. It leads to service delivery being sacrificed for the sake of the ideology of racial representivity and the masses pay the price for it. Posts are even left vacant if minorities are over-represented, leading to the alienation of minorities. No one benefits from the ideology of absolute representivity.
Equality is simply too complex to be achieved by means of a calculator and a simple racial ideology.
The State sets the pace in South Africa. If the State implements an unlawful practice, the private sector will follow suit, and soon it is so generally applied that the unlawful practice becomes lawful. Thus, justice follows practice, or de jure follows de facto.
Therefore, we cannot simply let the State's unfair ideology of representivity be. In a constitutional democracy it is the duty of civil society to act as a watchdog of the constitutional state.
Taking action against a state that acts outside the legal framework and contrary to the constitutional democracy is nothing but being patriotic to the constitutional state.
Is our democracy mature enough for a battle of ideas on a sensitive issue like equality and affirmative action?
Your Honour, my closing argument comes from the Labour Court case Jenny Naidoo versus the SAPS where the police testified as follows:
"When the relevant position was advertised, the allocation for Indians was 2,5% of all available posts: 70% of the 2,5% for Indian males and 30% of the 2,5% for Indian females." (The SAPS's target for women is 30% and for men 70%.)
"For Indian females the calculation is 19 x 2, 5% = 0, 5% positions to be filled by Indians, then 0, 5% x 30% (30% is target of females) = 0, 1 Indian females and that is rounded off to zero. But there were only 5 available positions 0,125 could go to Indians x 30% gender allocation means 0.037 could be allocated to Indian females and that is rounded to zero.
Indian females on level 14 were ideal because there were none and the ideal was zero. There was one Indian male on level 14 but there ought to be none."
Your Honour, I rest my case.
Source: Solidarity
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