It is well-known that Solidarity has been involved in a long battle against government’s implementation of affirmative action. Over the past ten years we have brought several discrimination cases before the Labour Court, the Labour Appeal Court, the Supreme Court of Appeal and also before the Constitutional Court.
In 2012 a decision was made to challenge the legitimacy of the South African Police Service’s employment equity plan. This challenge was the first of its kind in South Africa following the promulgation of the Employment Equity Act in 1998.
The case was heard in the Labour Court in June 2014, and in January 2016 (19 months later) judgment was delivered.
The basis of Solidarity’s attack against the SAPS EE Plan is the setting of numerical targets by SAPS management, which we contend amounts to impermissible quotas which are specifically prohibited by section 15(3) of the Employment Equity Act (EEA).
In the judgment the judge concluded that the SAPS’s Employment Equity Plan for 2010 to 2014 is invalid and of no force and effect because it contravenes:
- Section 15(3) and section 42 of the Employment Equity Act, as well as
- Section 9(2) of the Constitution of South Africa.
Another important issue the judge highlighted was that, in terms of the EEA, all designated individuals should be dealt with as one group. For example, the Act does not allow for subdividing people into groups of African, Coloured or Indian but requires that those races all be treated as “Blacks”.
Government departments are increasingly distinguishing between individuals from the designated group, claiming that “Africans” suffered more under the apartheid system than “Indians” or “Coloureds” did, thus resulting in a breakdown of persons on the basis of their race. The judge’s finding that the abovementioned race groups should all be regarded as “Blacks” will force government departments to cease the differentiation practices.
The judge also raised a question as to whether the use of numerical targets in the SAPS’s plan amounts to the imposition of quotas, a practice which is in breach of section 15(3) of the EEA. He concluded that there is no provision in the SAPS plan setting out the circumstances in which a deviation from the plan would be acceptable. The conclusion that can be drawn is that the targets are inflexible which, in turn, amount to a quota.
The judge found that any member of SAPS management who deals with appointments or promotions would find no guidance in the plan as to when, or on what basis, it would be acceptable to make recommendations or decisions on employment or promotion which would not advance the plan’s numerical representation goals. The plan actually states that managers’ performance asessements would be negatively affected should they fail to apply afirmative action as prescribed by the plan.
The judgment highlighted that the use of only the national racial demographics to set numerical targets is not sanctioned by the EEA, and as such it is unlawful. It further mentioned that the use of national racial demographics and / or the national economically active population within provinces is not sanctioned by the EEA and is as such unlawful. The judgment stated that an EE plan that does not allow for deviation from the targets will amount to a quota system, which is prohibited by the EEA and is thus unlawful.
This ruling is a major victory for Solidarity in the battle against unfair discrimination. Although the judgment pertains to the SAPS’s 2010-2014 plan, which has expired in December 2014, the issues highlighted in the judgment are also applicable to the new SAPS Employment Equity Plan for the period 1 January 2015 to 21 December 2019, which has been approved by the National Commissioner of the South African Police Service on 20 February 2015.
Solidarity is currently in consultation with our legal advisors on the way forward regarding a possible attack on the new plan.