Introduction

We, as Solidarity’s Centre for Fair Labour Practices, have a number of concerns regarding the proposed amendments to the Employment Equity Act (EEA) as reflected in our comments provided to the portfolio committee. We would like to take this opportunity to focus on the issue we are most concerned about, namely the amendments to section 42.

Our views on “representivity”

From the outset, we wish to express our strongest opposition to an approach to affirmative action that sets out to reflect the national racial demographics throughout South Africa, regardless of the demographics of a province or region.

This approach does not respect South Africa’s rich cultural diversity, but wants a South Africa that looks the same everywhere.

This policy results in absolute ceilings being applied to minorities should they, according to the national racial demographics, be overrepresented anywhere.

Affirmative action is developing into a purely mathematical approach and has everything to do with race and little to do with corrective action. The person is taken out of affirmative action and replaced with statistical calculations.

This approach will inevitably lead to a situation where people are excluded from promotion purely on the grounds of their race. It affects their right to dignity and equality and in this way, minorities are alienated from the political system.

Furthermore, the Constitution only provides for two instances where ‘broad’ representation is required, namely section 195(1)(i) and section 174(2), which contradicts the notion that demographic representation is required and or/sanctioned. Section 195(1)(i) further makes it clear that ‘management practices must be based on ability, objectivity and fairness’, which further confirms the argument that demographic representation cannot be used as the sole factor in establishing ‘equitable’ representation.

The effect of such a system/ideology

The effect of such a system/ideology is already visible in our country and can be best illustrated by means of the court case Mrs Jennila Naidoo vs the SAPS^[1] where the court recorded the argument of the state as follows:

The calculation used to determine the race and gender allocation was explained as follows: 19 positions on level 14 are multiplied by the national demographic figure for a specific race group, e.g. 19 positions x 79% Africans = 15 of 19 posts must be filled by Africans, then 15 x 70% = 11 positions to be filled by African males minus the current status of 7, meaning there is a shortage of 4 African males.

For Indian females the calculation is 19 x 2,5% = 0,5 positions to be filled by Indians, then 0,5 x 30% = 0,1 Indian females and that is rounded off to zero. Of the five available positions 0,125 could go to Indians x 30% gender allocation means 0,037 could be allocated to Indian females and that is rounded to zero.

The Western Cape serves as a further good example of the consequences of this irrational approach to affirmative action.

Nationally, coloured South Africans constitute about 10% of the racial demographics, but in the Western Cape they represent approximately 53% of the demographic composition.

Should national demographics be applied to the Western Cape, there would be approximately one million coloured people too many in the Western Cape. According to this approach, they will not have rights where they live, but will have to relocate to other provinces in order to have rights. By implication, a massive social engineering programme and forced relocations would be required to achieve the state’s affirmative action objectives.

This approach was also confirmed by the counsel representing the state in the urgent application brought by Solidarity on behalf of Mr February, where it was confirmed that coloured people should move to provinces where they are underrepresented. 

The current section 42

It is clear that the aim of section 42 is to serve as a yardstick to determine whether an employer is implementing equity in compliance with the Act. In addition to the factors referred to in section 15, it sets out a number of other factors, all of which have to be taken into account.

The court’s view on the implementation of section 42 was expressed in the matter Director General of Labour & another v Comair^[2] where the court ruled as follows:

It is clear that the EEA instructs the DG to take into consideration a number of factors before arriving at a decision. I am in agreement with the submission that this matrix of considerations allows and in fact forces the official to bring a sound judgment to bear in assessing compliance with the EEA. What is further clear from this section is the fact that the requirements or factors must be weighed cumulatively. In this regard, this section specifically states that ‘all’ of the factors must be taken into account. A labour inspector or the DG can therefore not exercise discretion without taking into account the factors in section 15 of the EEA and those listed in section 42 of the EEA.

Not only do employers have clear and specific guidelines on numerical goals and equitable representation, but the Director-General is also bound by these specific guidelines in assessing compliance.

These factors are the statutory checks and balances of the implementation of affirmative action measures, without which each and every court will be required to determine on a subjective level whether there was compliance with the Act or not. 

The amended section 42

In the amendments to section 42(1) it is clear that it will not be compulsory to take into account the factors listed in section 42 and that not ‘all’ of the factors need to be taken into consideration.

It is further clear that the only remaining factor of section 42(a)(i) will be the demographic profiles of the national and regional economically active populations.

However, the powers bestowed upon the minister in terms of section 42(2) and (3), nullify the provisions of section 42(1) in total, in that the minister may specify the circumstances under which an employer’s compliance should be determined with reference to the demographic profile of either the national, or the regional economically active population.

What will the effect of these amendments be?

• They will unduly empower the minister to make national demographic representation compulsory in the private and public sectorwithin regions, with the inevitable consequences as stated above.
• They will open the door to dramatically increased enforcement of race-based employment formulas.
• The DG will have no compulsory factors to take into account, except for those imposed by the minister in establishing whether an employer complies with the Act, which might lead to the misuse of the process, especially by state departments, as we have already seen.
• Taking away most of the factors listed in section 42(1)(a), especially the factors in subsection (ii) dealing with the pool of suitably qualified candidates, will lead to a further threat to our already compromised state departments regarding proper and effective service delivery.
• Huge numbers of individuals will be compelled to seek employment in other provinces and/or regions if they want to be promoted, purely because their racial group might be overrepresented in their region.
• The courts will be overburdened with assessing individual justifications for noncompliance, without having any form of statutory guideline in assessing these matters. This will have a negative effect on the jurisprudence of compliance and/or discriminatory matters.
• It is unclear which factors the DG will take into account in assessing whether an employer complies with the provisions of the Act, especially in setting numerical goals. 

Closing

The amendments to the Act and, in particular, the amendments to section 42, are nothing but an attempt to align legislation with the current practices and instructions of government that each province and each employer should reflect the national demographic profile of the country.

We hope that these will not be prophetic words, but if these amendments were to be accepted, we will see a country that is engulfed by racial obsession, a government that sanctions forced removals based on race, human rights offenses as last seen 20 years ago, a total failure of service delivery by the state and a nation divided by race.

These amendments are morally wrong because of the consequences they will have, and one cannot justify something that is morally wrong by making it a statutory obligation.

[1] JS566/2011

[2] [2009] 11 BLLR 1063 (LC)