SA court may be forced to decide who suffered more under Apartheid

The Constitutional Court is set to hear a crucial case on Wednesday (18 November) regarding employment equity policies in South Africa – which could leave racial minorities out in the cold.

The case is between trade union Solidarity and the Department of Correctional Services (DCS), following several earlier battles in the Labour Court and Labour Appeal Court.

The key issue relates to the DCS’s 2010 employment equity plan, which set certain racial and gender targets heavily weighted in line with national population demographics.

According to Solidarity, the ANC’s national policy on affirmative action makes it clear that the national racial demographics has to be reflected in every province and at every job level.

A group of both white and coloured applicants in the Western Cape subsequently challenged the plan’s formulation on the basis that it ignored regional demographics and amounted to a quota.

In a statement issued on Sunday (15 November), Solidarity noted that court case would have far-reaching consequences for all races in South Africa.

Specifically, to achieve government’s goal of equal race representivity in all provinces, more than three million South Africans will have to relocate, Solidarity argued.

Share of race per province
Share of race per province

In the Western Cape, coloured employees who brought the case to begin with would be hardest hit, the union said.

“Coloureds are on their own”

“If it is found that affirmative action plans enforcing the national racial demographics in a province such as the Western Cape is lawful, it would mean that coloured South Africans will have to be ‘managed downward’ from their provincial representation of 52% to approximately 9%, the national figure,” Solidarity said.

Solidarity previously reported that there were 1.1 million too many coloureds in the Western Cape, and 300,000 too many whites in the Gauteng, based on racial representivity.

Race group per province
Race group per province
Race group per province after adjustment
Race group per province after adjustment

“The effect for other minorities such as the Indian community in KwaZulu-Natal, the coloured community in the Western Cape and also white South Africans in the rest of South Africa will be equally drastic,” it said.

Despite the gravity of the court case, the union points out that no civic groups have supported the DCS employees – with the South African Police Service and Cosatu opposing them, and the DA and ANC sitting silent on the matter.

“Coloured people’s votes are appreciated, but their legitimate battle, unfortunately, is not politically correct. The Western Cape voters are being sacrificed for a bigger national strategy,” the union said.

Important case

According to African Legal Centre, the case being heard, while complex, is an important one which should settle some aspects of how employment equity plans should be formulated and implemented.

“The Court must decide exactly what is the general constitutional test to evaluate the manner in which an employment equity plan is formulated,” the group said.

“Is a traditional means-and-ends rationality analysis sufficient? Or should a more opaque standard of ‘fairness’ be applied? Or perhaps ‘proportionality’ is the central criterion of evaluation?”

“Or, as the Labour Appeal Court seems to suggest, perhaps all three tests have morphed into some congealed tiered-scrutiny test.”

“The Court should also pronounce on how such a test applies, given regional demographics involving a minority that was also disadvantaged by Apartheid,” the group said.

Notably, it has been pointed out that the Western Cape has a history of coloured labour preference, which “must be engaged with”.

This means the Constitutional Court may end up in the “uncomfortable” position of measuring which disadvantaged group suffered more under Apartheid, ALC said.

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SA court may be forced to decide who suffered more under Apartheid