Solidarity brings application against Correctional Services' affirmative plan

On behalf of five of its members, the trade union Solidarity has today filed papers with the Cape Town Labour Court in a lawsuit against the Department of Correctional Services (DCS). The case against the DCS in the Western Cape flows from its controversial affirmative action plan. Solidarity alleges that the DCS's flagrant policy of absolute representation is unfair, irrational and unlawful. According to Solidarity, this affirmative action lawsuit would be the most extensive case yet in South Africa.

It was reported in the media that Tony Ehrenreich, Cosatu's Provincial Secretary, in a letter to Zwelinzima Vavi, Cosatu's General Secretary, had expressed his concern that the lawsuit could have a devastating effect on the future of the ANC in the Western Cape.

According to the DCS's affirmative action plan, the national racial demographics must be reflected in every workplace, even at provincial and regional levels. This means that white ─ and especially coloured ─ employees in the Western Cape are virtually denied any chance of being promoted and appointed. The DCS's plan stipulates that coloured South Africans are to constitute only 8,8% of employees in the DCS, while coloured South Africans make up some 53% of the economically active population of this province.

Solidarity will petition the court not only for a ruling that its members be promoted but also that the DCS's affirmative action plan be declared unlawful in its entirety. The plan also stipulates that the regions are to bring their affirmative action plans in line with the national plan.

Apart from implications for the DCS, the court finding would also bear on all affirmative action plans across the civil service.

"In the lawsuit we will argue that the Constitution of South Africa does not permit this type of social engineering. Affirmative action has evolved into a race counting and has lost its remedial character," according to Dirk Hermann, Deputy General Secretary of Solidarity.

The national plan requires each region to be an exact replica of the national racial demographics.  According to the DCS's plan, this means that, everywhere in South Africa, there should be 79,3% black, 9,3% white, 8,8% coloured and 2,5% Indian employees.

The following directive was contained in a letter dated 27 June 2011 by the National Commissioner: "Regions are not to develop their own regional plans based on the regional demographic profile of the economically active population but that the different regions are to develop their own EE implementation plans towards the realisation of the national numerical goals set for the entire department." Any deviances from the plan should be motivated, for the sole approval of the National Commissioner.

"We are convinced that no legislation in South Africa permits this type of social engineering. The DCS plan sets an absolute ceiling over white, Indian and coloured employees, establishes quotas and ignores service delivery and skills. None of this is permitted by the Employment Equity Act or the Constitution of South Africa."

Solidarity conducts the legal proceedings on behalf of Pieter Davids, Christopher February, André Jonkers, Linda-Jean Fortuin and Geo-nita Baartman.

Pieter Davids is a white employee with 26 years' service. He applied for the position of Assistant Director: Human Resources Administration. He was the best candidate and recommended as the sole candidate. Both Area and Regional Commissioners recommended his appointment in deviance from the affirmative action plan. In the recommendation it was even stated that failure to appoint Mr Davids would jeopardise service delivery. However, on the basis of the DCS's affirmative action plan, the National Commissioner rejected the recommendation and the position was advertised again.

Christopher February is a coloured employee with 16 years' service. He is currently acting as Senior State Accountant. The position in which he is acting was advertised and he submitted an application. He was recommended as the best candidate. The acting Regional Commissioner supported the recommendation, stating that Mr February had already been acting in the position for quite some time. However, the director for Equity responded that the recommendation conflicted with the affirmative action plan and the next best candidate, a black woman, was recommended. She had already accepted another position, however, and the position was advertised again. Mr February is still acting in the position.

André Jonkers is a coloured man with 17 years' service. He has already acted twice in the position of manager in the training division. This position was advertised and he applied, but a black woman was appointed. She accepted another position and Mr Jonkers was asked to act once more. He has already applied four times for positions but a black person was appointed every time.

Linda-Jean Fortuin is a coloured woman with 26 years' service. She applied for three positions. She was recommended for one position but has never been appointed. The position is still vacant.

Geo-nita Baartman is a coloured woman with 13 years' service. She applied for an assistant director position. The other candidates were four black women. She was the best candidate and recommended for the position. It was nevertheless decided to appoint the second best candidate. However, that person had been appointed in another position and the third best candidate was recommended, which recommendation has not yet been implemented. Rather, the position was left vacant and Ms Baartman is still acting in the position.

* Read the papers that Solidarity filed today at www.solidaritymedia.co.za

Statement issued by Dirk Hermann, Solidarity deputy General Secretary, May 21 2012

Click here to sign up to receive our free daily headline email newsletter