Affirmative action is a necessary policy to address historical workplace inequality in South Africa. In this column, published in December 2016, Professor George Devenish reflects on how two judges needed the Wisdom of Solomon in a case where a previously disadvantaged but minority group was again discriminated against when the policy was poorly applied. As Professor Devenish says the Constitution proved to be a sound framework enabling the judges to make a fair and informed decision.
The applicants in a recent judgment, reported in the South African Law Report of October 2016 and entitled Solidarity v Department of Correctional Services, were coloured males and females. These persons were denied promotion by the Department of Correctional Services in the Western Cape, a province in which there is a coloured majority, on the basis that this population group was over represented in employment, in terms of the said department’s national demographics based 2010 Employment Equity Plan (EE Plan).
Both the Labour Court and the Labour Appeal Court held that the Department’s EE Plan was unlawful because it set numerical employment targets for the different racial groups that were based exclusively on the national demographic profile, without therefore taking into account the regional demographic profile as it was obligated to do by virtue of s 42(1)(a) of the Employment Equity Act 55 of 1998 (EE Act).
Judgment of the Constitutional Court
However, neither of the above mentioned courts set aside the EE Plan as invalid, nor did they grant remedies applied for. As a result, the applicants sought, in an appeal to the Constitutional Court, for appropriate relief. This was granted in their favour in an important judgment delivered by Judge Zondo, who made it categorically clear that there is no place for racial domination in our constitutional dispensation or body politic. It is indeed a great triumph for diversity and the philosophy of constitutionalism. Once again the Constitutional Court has demonstrated that it is in world class and has delivered an exemplary judgment that promotes democracy in no uncertain terms in South Africa.
Acting Judge Nugent’s minority judgment in effect adds a second dimension to the equality jurisprudence. This involved the way he distinguished between quotas which are prohibited and numerical targets, which are permissible. In this regard his assessment is preferable to that of Judge Zondo.
Be that as it may, each of these judgments has made an important contribution to realising the transformational aspirations of the Constitution. They are able to assist us in understanding and applying affirmative in accordance with the Constitution and the EE Act.
Important conclusions that can be drawn from Solidarity Judgment
Firstly, in this regard, it should be noted that the difficulties facing us as a nation in relation to transformation are profound and must not be underestimated.
Secondly, it must be borne in mind that what we are trying to achieve is not mere formal equality, but substantive equality, which must bring about greater economic equality in the community as a whole, rather than merely treating all persons on an equal arithmetic basis, without considering all the relevant circumstances.
Thirdly, however, in realising this kind of sophisticated equality due care not to invade unduly the dignity of all concerned. All of this requires that balance must be brought to bear in weighing up all the relevant considerations.
Fourthly, in this regard it must emphasised that equality can certainly mean more than representivity of persons in racial groupings. What is actually required is not only cold and impersonal arithmetic. This was the essential critique of the Department of Correctional Services EE Plan in the Solidarity case, which made virtually exclusive use of a series of arithmetic tables.
Fifthly, the Solidarity judgment raises profoundly interesting jurisprudential issues. It most certainly, it is submitted, is not the last word on these seminal issues, which have important constitutional and political consequences. It advances the cardinal value of non-racism in the understanding and application of our Constitution and has defused, it is submitted, a tense political situation, given notorious expression to by Jimmy Manyi (media owner and president of the Progressive Professionals Forum) who declared in a highly publicized and notorious comment in the media in 2011, that coloured people are over-concentrated in the Western Cape and need to move to other provinces to find jobs elsewhere and that in KwaZulu-Natal, Indians are bargaining their way to the top.
Lastly, in this regard, although transformation involving employment equity must be rational and fair within the context of the Constitution and the EE Act, but not it must be pointed out necessary always painless.
Where pain is inevitable and Africans are advantaged at the expense of whites, coloureds and Indians, according we must be careful that the steps taken to promote substantive equality do not unwittingly infringe the dignity of other individuals- especially those who were themselves previously disadvantaged.
This is important since in the Solidarity judgment it was the fate of coloured warders, who were indeed discriminated against, that was at stake. What is ultimately required is a judicious balancing of conflicting interests. In this regard, it is submitted that the Wisdom of Solomon is reflected in the judgments of both judges Zondo and Nugent.