Prisons case gives final word on job equity: Plans must consider local demographics
When he was the commissioner of correctional services, Tom Moyane, now the head of the South African Revenue Service, introduced an employment equity plan for the department of correctional services. In brief, it provided for numerical “targets” to be attained to achieve employment equity (EE) in the department’s workforce. Set out in the 2010 EE Plan, they were:
- 9.3% for white men and women;
- 79.3% for African men and women;
- 8.8% for coloured men and women; and
- 2.5% for Indian men and women.
The plan was based on the national demographics for the country.
But the use of the term “targets” was incorrect: the department was enjoined to employ staff on the basis of these figures, save in the narrow case where the commissioner alone authorised a deviation based on a particular skills set.
A number of applicants in the Western Cape sought vacant posts.
They were recommended for appointment but were then rejected because, being coloured, the department claimed that coloured employees were already overrepresented in the department’s workforce. In short, in terms of the 2010 EE plan, it was impermissible to appoint any more coloured applicants.
These applicants took their case to the Labour Court, arguing that the department had ignored the demographics of the Western Cape, where 48% of the population were coloured. Both the Labour Court and the Labour Appeal Court found that the department’s plan was unconstitutional in that it was contrary to the equality guarantee of the Constitution to apply national demographics rigidly in this manner, thereby discriminating against the coloured population, in this case, of the Western Cape.
Inexplicably, neither court granted the applicants relief so that, although it was held that the EE plan was unconstitutional, none of the successful applicants was placed in the posts for which they had applied, nor were they granted compensation.
The case proceeded to the Constitutional Court. Two judgments were delivered, both of which supported the conclusion of the two earlier courts that the EE plan breached the Constitution, and both of which upheld the appeal that the applicants had to be placed in the advertised posts or, where this proved impossible, they were to be granted compensation.
In a somewhat confusing majority judgment, Justice Ray Zondo held that, “when the department refused to appoint the coloured and female individual applicants on the basis that they belonged to groups that were already overrepresented within the occupational levels to which they wanted to be appointed, the overrepresentation of those groups had been determined on a wrong benchmark”.
A significant part of the confusion in this judgment rests on the tortuous reasoning to arrive at the finding that the EE plan did not introduce a rigid quota system, in that the commissioner was empowered to authorise deviations from the so-called targets.
But, Zondo found that, notwithstanding that the EE plan could not be held to be a rigid quota system, as the commissioner could and did deviate from the numerical targets, the department used the national demographic profile to determine the level of representation of the different designated groups. It was legally obliged to use the demographic profile of both national and regional economically active populations in terms of the Employment Equity Act read together with the Constitution.
A far more coherent, and hence comprehensible, approach was adopted by Acting Justice Robert Nugent in his concurring judgment.
Nugent found that the provision that empowered the commissioner to deviate from the numerical “targets” was a very restrictive provision dealing with specific skills that may be required. Read holistically, the EE plan required a rigid application of national demographics to the employment of applicants for posts in the department.
In the final analysis, the differences of the judgments were not crucial. As Nugent said: “Stepping back from the separate grounds upon which I find the plan to be defective, it seems to me they are all mere symptoms of a fundamental malaise. The passages from judgments of this court referred to, above all, recognise that reconciling the redress the Constitution demands with the constitutional protection afforded the dignity of others is profoundly difficult.
“That goal is capable of being achieved only by a visionary and tex- tured employment equity plan that incorporates mechanisms enabling thoughtful balance to be brought to a range of interests ... it is in that way that the Constitution’s demand for a public service that is ‘broadly representative of the South African people’ will be realised.
“Ours are a vibrantly diversified people. It does the cause of transformation no good to render them as ciphers reflected in an arid ratio, having no normative content.”
The outcome of this important judgment is that a Moyane-type plan cannot be applied to employment equity. To tell coloured people who suffered 300 years of racism that in the Western and Northern Cape that they can only fill 8% of the workforce even though they constitute more than 40% of the population is a travesty of the Constitution’s commitment to transformation.
The Constitutional Court has again proved to be a fine custodian of our fundamental constitutional promises.