Memorandum from Flip Buys, General Secretary of Solidarity, to Jacob Zuma in response to the President's defence of controversial changes to Employment Equity Act, March 8 2011:
Open memorandum to President Jacob Zuma
Dear President Zuma,
I refer to your statement on 7 March 2011 which claims that Coloured and Indian South Africans will not be disadvantaged by the new amendments to the Employment Equity Act (EEA).
The comment states "the intended outcome of the new proposed amendment is that the employers will have the flexibility to decide whether to use regional or national demographics, depending on their operations."
You rightly state in your comment: "The changes in the Employment Equity Act that are of concern relate to Section 42(a) (i) which states that in determining whether an employer is complying with this Act, the following factors must be taken into account:
‘demographic profile of the economically active population'."
This phrase will appear as is in the Act, should the amendments be accepted.
Mr. Zuma, it is common law that words receive their general, literal and grammatical meaning when the law is interpreted by courts.
The current wording of the amendments gives no leeway to employers. It does not give employers an option. It is not stipulated as such.
If a court abides by the rules of interpreting the law, it will not reach the interpretation in your declaration.
Solidarity applied the current wording of the amendment act to explain the implications. In other words, we held a mirror in front of the Act to demonstrate probable implications.
If the demographics of the economically active population (EAP) are applied as it is stipulated in the proposed amendments, it implies that, amongst others, roughly one million Coloured people in the Western Cape, approximately 300 000 Indians in KwaZulu-Natal and an estimated 100 000 Coloured people in the Northern Cape of the economically active population is legally overrepresented. We have complete calculations and a report should you require the detail of our calculations.
Coloured and Indian South Africans will therefore be last in the queue if affirmative action is applied. They are basically written out of the definition of the designated group.
To execute the amendments, as they are currently formulated, will imply massive migration programmes to reach the final goal of representation. It is absurd and not applicable.
To fully comprehend the amendments, it is necessary to understand the drafters' intention.
During the development of the Employment Equity Act, two institutions play a crucial role - firstly the Employment Equity Commission and secondly the department of labour. The commission advises the minister of labour on affirmative action. Thereafter Nedlac and the parliament consider the proposals.
At this time, the commission and the department of labour have already formed part of the process. It is also important to note that the amendments have twice been approved by the cabinet.
To clearly understand the commission's intention, one can consider the commission's view on affirmative action.
On 14 August 2010, the current chairperson of the commission, Mpho Nkeli, made the following statement to Chris Barron, journalist of The Times: "Whites in the workplace, at all levels, should be no more than 12,2% of the economically active population. ‘Africans' should be no less than 73%, coloureds 11% and Indians 3%."
This quote explains how the economically active population is viewed by the commission. It also clearly explains the proposed amendments to the act.
This comment agrees entirely with Solidarity's interpretation of the amendments and does not comply with the explanations as contained in your statement.
The second important person involved in the development of proposed amendments, is the director-general of labour. When these amendments were developed, Mr Jimmy Manyi was the director-general of labour.
According to Beeld of 12 May 2010, Mr Manyi told the Steel and Engineering Industries Federation of South Africa that absolute representation is the only measure of employment equity. His controversial statements that there is an over-concentration of Coloured people in the Western Cape and that Indians are over-represented in management also provide the context of the proposed amendments.
The mathematical approach to affirmative action has been repeated by Mr Manyi on numerous occasions. His approach has not been repudiated to date.
This mathematical approach to affirmative action is still applied de facto in the public service. Racial representation is used as the only measure in the application of affirmative action. The Renate Barnard case, where a post was left vacant instead of appointing a white candidate, is a prime example in this regard. The ideology of absolute representation is alive and the proposed amendments merely embody it.
The amendments are not only formulated poorly, they are also based on a weak idea. Consequently, it is necessary to change both the wording of the amendments and the idea.
Mr President, with all due respect, no justice, in interpreting these proposed amendments, will arrive at a conclusion other than that the economically active population has to be taken into account.
There is no rule in any legal textbook on the interpretation of statutes that imagination can be used to interpret laws. Your interpretation of the proposed amendments will not be permitted by the bench in the interpretation of statutes.
Your interpretation does not correspond with the intention of the amendments' drafters. The drafters' intention was to make absolute representation the only measure. The wording of the amendments will have radical consequences for Coloured and Indian employees in the provinces where they are concentrated, as it marginalises them.
Solidarity was only the messenger. We picked up a mirror and showed how absurd the idea of absolute representation is. If it is your intention that the amendments are wrong, your view corresponds with that of Solidarity and it would in that case be appreciated if you could have the amendments changed.
Your letter creates the impression that the intention of the government changed and differs from the original intention of the Commission and the former Director-General of Labour. If the government is sincere about its intention that employers can use their discretion in deciding whether to take national or regional/local demographics into account, the amendments must reflect this intention.
The present wording of the amendments is unjustifiable. The wording must be withdrawn and replaced with wording that reflects the intention indicated by you. To try to explain the true meaning of a poor amendment to a law is pointless. The moment a law has to be explained, it is formulated incorrectly.
If the wording is not changed and the rule of imagination continues to be applied, Solidarity will test the Employment Equity Act in the Constitutional Court. We have already obtained legal opinions which indicate that we are likely to be successful.
Lastly, it is difficult to believe the government's intention as conveyed by you, while Mr Manyi, the person who conveyed the controversial intention, against which South Africans across all racial groups rose up, is still the government's spokesperson.
Your spokesperson's statement is in contrast with your own standpoint. As he is still the spokesperson, his ideas are condoned are tacitly by the government.
Solidarity believes that solutions must be found for poverty and inequality, but in a way that does not create new inequalities.
General Secretary: Solidarity
Issued by Solidarity, March 8 2011
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