Well, it seemed a good idea at the time
26 September 2017 07:38 (South Africa)
Opinionista Pierre de Vos

Constitutional Court: Addressing redress

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

A majority of judges of the Constitutional Court (for some reason only eight of the 11 judges heard the case) last week held that the Department of Correctional Services acted unlawfully by failing to use the demographic profile of both the national and regional economically active population to set the numerical targets for its Employment Equity Plan (EEP). However, except in the narrow circumstances of the present case, the judgment allows for the implementation of sweeping affirmative action measures based on strict adherence to affirmative action targets. A minority judgment disagreed with this approach, arguing that the majority, in effect, legalised rigid quota-based redress measures.

South Africa’s Constitutional Court has often affirmed that redress measures (specifically race-based redress measures) do not constitute an exception to the equality guarantee in Section 9 of the Bill of Rights. Instead, the implementation of robust redress measures is required to achieve equality as guaranteed by Section 9 of the Constitution.

Some people seem to be unfamiliar with the extensive academic writing of the past 60 years on equality law, and often also appear to be unaware that several international human rights treaties ratified by the vast majority of states endorse redress measures. Because of their ignorance, they often claim that redress measures constitute a form of “reverse discrimination”, a view they assert as if it is blindingly obvious and self-evidently true.

However, such measures are not “reverse racism”. Nor are they “racist” or “discriminatory”. No credible scholar or judge would today hold such a view. Without the implementation of redress measures, the effects of past and ongoing discrimination could not be addressed.

It is for this reason that the position of some opponents of redress measures are incoherent and dishonest. While claiming to be great champions of the Constitution, they oppose a central tenet of the Bill of Rights aimed at correcting a grave injustice from which they benefited or continues to benefit. The Constitution permits – no demands – redress. Critics of all forms of redress are therefore anti-constitutionalists as they seek to undermine aspects of the Constitution.

(As an aside, it is unclear why so many South Africans have embraced the irritating American term “affirmative action” when they refer to redress measures. The measures are aimed at correcting a historic and ongoing injustice, and using the term “affirmative action” obscures this basic point.)

In Solidarity v Department of Correctional Services the Constitutional Court was confronted with the provisions of a relatively crude Employment Equity Plan (EEP) implemented by the Department of Correctional Services. All the justices of the Court agreed that the EEP was unlawful because it used national demographics to set targets for employment in the Department, regardless of which region the Plan was being implemented.

At the relevant time, Section 42 of the Employment Equity Act stated that both the “demographic profile of the national and regional economically active population” had to be taken into account when evaluating an EEP.

Each employer bound by the Employment Equity Act is required to set employment equity targets and to take steps to achieve these targets. However, as the majority pointed out, if employers use a wrong basis to determine the level of representation of suitably qualified people from and amongst the different designated groups, the numerical goals or targets that it may set for itself to achieve within a given period would be wrong.

This is exactly what the Department of Correctional Service did in this case – it used national demographics to set targets for its EEP, regardless of which region it implemented each plan. The Plan set the same employment targets for “Africans” (79.3%), “Whites” (9.3%), “Coloureds” (8.8%), and “Indians” (2.5%) – regardless of whether the plan was being implemented in the Western Cape, Limpopo or KwaZulu-Natal.

In failing to use the demographic profile of both the national and regional economically active population to set the numerical targets, the department acted in breach of its obligation in terms of section and, thus, acted unlawfully. This was relevant because most of the litigants in the case were individuals designated as “coloured” (in terms of the apartheid race categories that South Africans still often invoke) and lived in the Western Cape.

Although almost 50% of the active workforce in the Western Cape are designated “coloured”, the Department of Correctional Services EEP – relying only on national demographics – required it to appoint at each level “79.3% black “Africans” and 8.8% black “coloureds”. But in Limpopo where people designated as “coloured” by the apartheid regime constitute only 0.3% of the population, the Department would also have to appoint 8.8% “coloureds” at each level, thus in effect forcing people to migrate to find employment or to get promoted.

As the minority judgment explained (concurring on this point with the majority):

[E]mployment opportunities are accessible to people only where they live. The objective of the EE Act is not to induce racial migrations to accommodate the statistics. Its objective is accessibility of employment opportunities and it achieves that objective only if it takes account where applicants for the posts are located. Statistics that serve as a tool for that purpose will be statistics that reflect the reality of the population, and the reality is that the races are not distributed uniformly throughout the country, which is not reflected in the Department’s Plan.”

The Employment Equity Act has since been changed and it longer requires an employer to take into account regional demographics when devising EEP targets – it merely allows it to do so if it wishes. It may be that this amendment is unconstitutional because it effectively encourages migration of people far away from their families and communities, thus containing echoes of the apartheid migrant labour system. But a future judgment will have to determine whether this is so.

The rigid adherence to national demographics may also have unintended consequences for each of the four apartheid designated racial categories used for employment equity purposes. This is because the majority of Constitutional Court justices also made an interesting and potentially far-reaching determination regarding the permissible winners and loser of redress measures.

It held that because workplace representivity was the aim of employment equity, an employer would not only be permitted to refuse to appoint a “white” person to a job but would also be permitted to:

refuse to appoint an African person, Coloured person or Indian person on the basis that African people or Coloured people or Indian people, as the case may be, are already overrepresented or adequately represented in the occupational level to which the particular African, Coloured or Indian candidate seeks appointment”.

In other words, not only people classified under apartheid as “white” could be refused employment because they are overrepresented. “Black candidates, whether they are African people, Coloured people or Indian people are also subject” to the same principle.

This means that in a province like Limpopo, for example, a strict adherence to national demographics may well be detrimental to black “African” candidates who may not be appointed or promoted because they may already be “overrepresented” in that province. It may, however, be to the benefit of “white” and “coloured” people living in Limpopo where they constitute a tiny minority of the population but would be entitled to 9.3% and 8.8% of the posts in a Department if only national demographics were taken into account.

The sharp disagreement between the majority and minority emerged on the question of whether the Department’s EEP constituted the imposition of rigid quotas – which the Employment Equity Act prohibits – or whether the plan merely provided for a flexible setting of targets aimed at correcting the effects of past wrong.

The majority held that while the Department acted unlawfully by not taking the regional demographics of the Western Cape into account in devising its plan, the plan did not constitute rigid quotas. The minority disagreed. The latest Departmental employment equity plan requires, amongst others, the following:

  • At level 3 only Whites and Indians should be appointed. At salary level 4 only 9 African Males, one African Female and one Coloured Male need to be appointed to balance representation of the workforce. At level 5 only African Females, Whites and Indians can be appointed.”
  • At level 6 African Females, White Females and Indians should be appointed. At level 7 Africans (M 684; F 3 039) 331 Coloured Females and 103 Indian Females should be appointed. At level 8 only Africans (157 m & 190 f) and 15 Indians.
  • At levels 9 & 10 only 51 African Males, 198 African Females and 2 Indian Females can be appointed. At level 11 & 12 only 109 African Females, 5 White Females and 9 Coloured Females can be appointed.
  • At level 13 African Males stand at 63 with a gap of -9 which indicates no African male should be appointed. 24 African Females, 4 Coloured Females and 1 Indian Female need to be appointed at this level. At level 14 only 3 African Females and 1 White Female needs to be appointed. At level 15 only 2 African Females and 1 African Male can be appointed.”

In the event of any form of non-compliance or deviation the concerned managers will be held accountable and action can be taken against him or her for non-compliance with the targets listed above.

The majority held that for the applicants to show that the numerical targets constituted quotas, they needed to first show that these targets were rigidly enforced. Although the Department’s EEP targets were normally rigidly enforced (no one would, as a general rule, be appointed if they did not comply with the EEP targets) the EEP did make provision for deviation from the Plan and, therefore, for deviation from the targets.

A deviation was allowed, for example, if a candidate had scarce skills (was a doctor, say) or where the operational requirements of the Department were such that a deviation from the targets was justified or was warranted. Only the National Commissioner is permitted to grant permission for such a deviation. If no permission is granted, “overrepresented groups” would not be employed.

The majority held as follows:

Once it is accepted that the 2010 EE Plan contained a provision for deviations from the targets of the Plan, then, in my view the targets cannot be said to be rigid, particularly where it cannot be said that the situations in which deviations are permitted are situations that do not occur in reality. The evidence given at the trial on behalf of the department revealed, for example, that scarce skills included cases of candidates who are doctors and those who are social workers.”

The minority sharply disagreed with this conclusion, arguing that the plan was so inflexible that it indeed imposed rigid employment quotas. The minority endorsed the Constitutional Court’s view on redress measures set out by Moseneke in the Barnard judgment:

It hopes to have us re-imagine power relations within society. In so many words, it enjoins us to take active steps to achieve substantive equality, particularly for those who were disadvantaged by past unfair discrimination.”

However, the minority focused more strongly on the need for some flexibility in the implementation of redress measures, arguing for a “thoughtful, empathetic, and textured” approach. It argued that when the National Commissioner deviates from the EEP to appoint doctors he is not implementing the plan – he is excepting doctors from it. “The critical enquiry is not whether there are special cases that are excepted from the Plan,” argued the minority, “but instead whether there is scope for flexibility when the Plan is applied to non-excepted posts”.

Because the minority equated “numerical targets” with “employment guidelines” and not targets which would in effect exclude “overrepresented” groups from being employed or (if employed) from being promoted, it held that the Department of Correctional Services plan was too rigid and constituted unlawful quotas.

Because “overrepresented” groups (whether “African”, “Indian”, “Coloured” or “White”) would in terms of the plan not be appointed unless they have special skills as doctors or social workers, the minorit held the plan to constitute quotas.

What was missing from the plan, according to the minority, was some form of discretion that would allow for a certain amount of flexibility.

No doubt the allocations will most often be applied, as they must be if they are to function as guidelines. And no doubt in most cases the availability of a discretion will not have a significant practical effect. But without a measure of discretion race and gender operates as an absolute barrier to the appointment of some, as the individual applicants in this case discovered. What stood in the path of their appointment were quotas with no discretion to take account of other factors, like individual experience, application and verve…[which].. amount[ed] to job reservation…”

The majority judgment, in my view, is a text of its time and goes further than previous Constitutional Court judgments in insulating redress measures from constitutional attack. The judgment would make it difficult to invalidate employment equity measures unless they allow for the appointment of unqualified candidates or are implemented in a corrupt or nepotistic manner. In this sense, it may well be far less of a victory for the litigants than they might at first have thought. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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