CORRECTIONAL SERVICES EMPLOYEES IN THE WESTERN CAPE CHALLENGE THE IMPOSITION OF DEMOGRAPHIC REPRESENTIVITY IN THE PROVINCE
On Thursday 23 February a group of employees from the Department of Correctional Services in the Western Cape will be going to the CCMA to challenge the department's employment equity plan which has placed a prohibition on the appointment and promotion of coloured and white South Africans in the province.
Almost 18 years after the establishment of our non-racial democracy, the lives of an increasing number of South Africans are once again being disrupted by racial discrimination. In terms of the new ideology of demographic representivity, the number of black, white, coloured and Indian employees in an organisation, the number of managers and the number of board members should ideally be in proportion to the percentage of the population represented by each of the race groups.
So, for example, in the ideal demographically representative organisation, 9.3% of employees, managers and board members should be white; 8.8 % should be coloured; 2.5 % should be Indian and 79.3% should be black.
Superficially, this seems to be quite fair. The trouble is that reality cannot easily be forced to conform to ideological prescriptions. This is often because the skills, qualifications, aptitudes and experience required for most jobs, are seldom distributed along racial lines - partly because of South Africa's long history of inequality and partly because of the generally poor performance of black education.
Also, if demographic representivity were to be applied throughout society - in the private sector, in civil society organisations, in educational institutions as well as in government - the outcome would not be one of racial equity but of pervasive racial domination. Everywhere, minorities would find themselves confined to demographic pens in which their employment and promotion prospects would be determined primarily by race - and not by merit.
Demographic representivity has not yet been widely imposed in the private sector and in civil society (although this is probably the medium/long term goal) - but it is increasingly pervasive in the public service.
On 27 June last year the Department of Correctional Services 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 Employment Equity Plan of the Department of Correctional Services 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 F W de Klerk Foundation has accordingly assisted a group of aggrieved employees to challenge the manner in which they have been treated by the Department. We have facilitated pro-bono legal representation for them through Bagraims, a leading firm of labour attorneys in Cape Town. They will be taking their case to the CCMA on Thursday, 23 February. We envisage that this will be only the first encounter in a long campaign to ensure that the constitutional principle of non-racialism is properly respected - and that the lives and careers of South Africans will not again be disrupted by the imposition of race-based ideologies..
Statement issued by the FW de Klerk Foundation, February 22 2012
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