Solidarity asks court to oblige government to amend affirmative action legislation

15 September 2019

Solidarity will ask the Labour Court in Johannesburg on Wednesday to oblige government to implement the recommendations of a report on equality released by the South African Human Rights Commission (SAHRC).

According to the report, certain parts of the Employment Equity Act (EEA) do not comply with the Constitution and international conventions. In this regard, the Equality Report states: “The employment Equity Act’s definition of designated groups is not in compliance with constitutional or international law obligations.”

Solidarity believes this could signal the end of affirmative action as it currently stands.

In its Equality Report the SAHRC recommended that the Employment Equity Act be amended, and that government give feedback on how the Act would be amended within six months after the release of its report. The recommendation reads as follows: “It is accordingly recommended that the EEA be amended to target more nuanced groups on the basis of need and taking into account social and economic indicators and that government report to the SAHRC within six months of the release of the Equality Report on steps taken or intended to be taken to amend the EEA.”

The report further recommends: “The EEA should be further amended to revert to the position where the consideration of the regionally economic active population in relation to representational levels is mandatory and not discretionary.”

Government should also “determine whether and how the EEA can be amended to require a qualitative and context-sensitive assessment of need when employment equity plans are implemented.”

Government has not complied with the SAHRC’s recommendations. Solidarity will now ask the court to ratify the SAHRC’s recommendations.

The SAHRC report came in the wake of recommendations made by the United Nations’ Committee on the Elimination of Racial Discrimination (CERD). The CERD report is sharply critical of South Africa’s racial classification system.

The recommendations of the UN Committee were made subsequent to submissions the Department of Justice and Solidarity had made in 2016 to CERD in Geneva, Switzerland. Solidarity subsequently also filed a petition with the SAHRC requesting that South Africa’s compliance with international law obligations be investigated.

According to Solidarity COO Dr Dirk Hermann, the gist of the SAHRC report is that affirmative action should be applied in a more nuanced way; that the need and socio-economic indicators must be taken into account; and that the way in which affirmative action is currently applied gives rise to a practice of race quotas.

In chapter 1 the SAHRC report states that “special measures are currently misaligned to constitutional objectives. Where special measures are not instituted on the basis of need, and taking into consideration socio-economic factors, they are incapable of achieving substantive equality.”

The SAHRC further notes that a context-sensitive approach is thus congruent with the CERD’s requirements for special measures.

Government has not made any changes to the Employment Equity Act yet, despite the country’s human rights watchdog having found that its unnuanced racial approach is unconstitutional. To persist with this without trying to have the findings set aside is contemptuous of an institution established by the Constitution and is in contempt of the Constitution itself,” Hermann explained.

According to Hermann, government has not taken the SAHRC’s report on review either and hence it is bound by it. For as long as the findings and recommendations are not legally challenged those findings and recommendations stand. Government had 60 days to challenge the findings. A year and a half have since gone by and they have thus forfeited their right to challenge the report.

We are now asking the Labour Court to oblige government to implement the recommendations, which would mean amending the Employment Equity Act. The Constitutional Court has already made it clear that Chapter 9 institutions of the Constitution should not be toothless. A recent Constitutional Court ruling found that it is to be expected of Chapter 9 institutions to be independent and subject only to the Constitution and law. For example, dealing with the powers of the Public Protector, another Chapter 9 institution, the Constitutional Court ruled as follows: “No decision grounded in the constitution or law may be disregarded without recourse to a court of law.”

The Constitutional Court further found that whether a Chapter 9 institution “is impartial or not would be irrelevant if the implementation of decisions it takes is at the mercy of those against whom they are made.”

Members of the media are cordially invited to attend the court proceedings in the Labour Court in Johannesburg on Wednesday 18 September at 10:00.

Issued by Anton van der Bijl, Head of Labour Law at Solidarity, 15 September 2019