Affirmative Action Judgment and the Sisyphus Complex

ON 24 FEBRUARY 2014.

Affirmative Action judgment and the Sisyphus complex

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Introduction

” Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised underprivilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow….”
( Judge Rabkin-Naiker in Solidarity and Others[cited hereinafter] at para 31 thereof)

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So have you read the foregoing in the judgment handed down by the Cape Labour Court, on 18 October 2013, regarding misapplication of affirmative action through the Employment Equity Plan every designated employer is obliged to prepare in consultation with all rellevant stakeholders? You must.

Incidentally Chapter III of the Employment Equity Act (EEA) deals with ‘Affirmative action’ i.e. the obligations of ‘designated employers’ in terms of the EEA.

I did, carefully and repeatedly and its shameful as well as painful when government appointed agencies fail or ignore the Constitution and the values it enshrines and entrenches in the execution of their obligations in terms of law.

As a result of this, one of the many I might add, serious lapses in judgment,alternatively dereliction of constitutional obligation,judgment after judgment slaps or knocks some sense into us that something is dreadfully and woefully wrong.

For balance and constructive responses to my blog,I reiterate that you read and study the judgment. I urge you! For your own edification and empowerment access the judgment from the website www.saflii.org.za and the full citation is

Solidarity and Others v Department of Correctional Services and Others, Solidarity and Others v Department of Correctional Services and Others [2013] ZALCCT 38 (18 October 2013)

To summarise, the labour union,Solidarity as well as individuals, sought relief against an employment equity plan (EEP) adopted by the Department of Correctional Services (DCS) which it claimed was not in compliance with Employment Equity Act (EEA) and the Constitution. It also sought relief against the application of the plan which, it claimed, amounted to unfair discrimination. Finally, it claimed that “designated employers” were obliged to take regional and national demographics into account when developing equity targets at all occupational levels of the workforce.

The selection process in the DCS was (incorrectly, as the court held) premised on an understanding that the constitutionally mandated EEA allows for the disregard of regional demographics when targets are set for the advancement of designated groups by a national employer.

If one refers to the EEA itself, it will be seen to plainly refer to both national and regional demographics being taken into account for the purpose of compliance with the EEA.

The Cape Labour Court, therefore, found that all three reliefs claimed were merited and granted relief.

Unless overturned on appeal,the judgment is a painful reminder of how far [we the people] are straying from the values enshrined in the Constitution and through,inter alia, our prejudices,phobias and stereotyping as well as silence we afford legitimacy to such shameful actions.

Factual matrix seeking to underpin and inform our understanding
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Individual coloured applicants,in this case, approached the Cape Labour Court claiming that they had been unfairly discriminated against by virtue of not being selected for the posts they had applied for. They asked the court to
(a) consider whether the EEP was consistent with the EEA and in particular, whether regional/ provincial demographics had to be taken into account by Department of Correctional Supervision (DCS) in developing and applying an employment equity plan.
(b) To evaluate whether the manner in which this EEP was being implemented by the DCS amounted to unfair discrimination, alternatively unlawful or unreasonable conduct.

These applicants argued that the content of the DCS’s EEP was inconsistent with the EEA as viewed through the prism of the Constitution.

I like what counsel for the applicants posited, namely the thesis that our courts adopt a jurisprudential approach which puts individuals( as opposed to groups)in their personal capacities as the bearers of equality rights. Relevantly he propagated an approach that focussed on the individual so as to recognize “how value-laden these assessments are and how hurtful they (could) be.” He went on to stress how these assessments made one “very uncomfortable, and (how, to justify them) we (sought) to sterilize (sic) them so as to forestall unproductive enquiries of the sort (that) The Bell Curve made notorious”

What did the Constitutional Court have to say
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Our Constitutional Court had a while ago held, in at least two judgments that immediately come to mind and which the Cape Labour Court referred to, that whilst democratic values and fundamental human rights espoused by our Constitution were foundational to the constitutional enterprise ,just as crucial was the commitment to strive for a society based on social justice. In this way, it held, our Constitution heralds not only equal protection of the law and non-discrimination but also the start of a credible and abiding process of reparation for past exclusion, dispossession, and indignity within the discipline of our constitutional framework.

The jurisprudence of the Constitutional Court made it plain that the proper reach of the equality right had to be determined by reference to the history of South Africa and the underlying values of the Constitution. One of the major constitutional objects is the creation of a non-racial and non-sexist egalitarian society underpinned by human dignity, the rule of law, a democratic ethos and human rights.

From there emerges a conception of equality that goes beyond mere formal equality and mere non-discrimination which requires identical treatment, whatever the starting point or impact.

It was a unanimous Constitutional Court that observed elsewhere that in that ‘fundamental way’, our Constitution differed from other constitutions which assumed that all are equal and in so doing simply entrench existing inequalities.

Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result.

We, as South Africans, given our history and experiences, are required to do more than that, otherwise the deleterious effects of discrimination may continue indefinitely unless there is a positive and hands on commitment to end it.

The Cape Labour Court judgment in brief
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These applicants faced a selection process for particular posts that (i.e. the process) did not take regional demographics into account for the purposes of its equity objectives.

The Court found that the individual applicants who were black employees in terms of the EEA have suffered unfair discrimination in that the selection process utilised to decide on their applications for appointment to various posts was premised on the understanding that regional demographics do not have to be taken into account in setting targets at all occupational levels of the workforce in DCS. That policy and practice was not in line with the affirmative action measures referred to in section 6(2)(a) of the EEA.

It was its judgment the most appropriate relief was for the court to order in these circumstances is one that would “benefit all employees of DCS in the Western Cape who (were) black employees of the DCS and members of the coloured community in the future.”

For the sake of relevance and completeness, I must point out that the Court rejected the notion argued by the applicants that the restitutionary measures that the EEA promotes (amount[ed]) to [affording] equal opportunity for “designated groups to compete with the prime beneficiaries of past systemic and institutionalised discrimination.”

Until another court find differently or the decision is overturned on appeal, the judgment stands and it serves to remind us that we need to be on eternal vigilance, for its men and women, not flawless or perfect but human beings susceptible to either a lack of knowledge or understanding of what are the foundational underpinnings of our constitutional edifice.

So like Sisyphus we all share the burden of ensuring that every time the rock of our rights slides down, we must all put our shoulders and ensure its permanence as a priority.

Saber Ahmed Jazbhay
Attorney
Follow me @jazlaw24
19.10.2013

PS “Sisyphus”? In Greek legend, was a king in ancient Greece who offended Zeus and whose punishment was to roll a huge boulder to the top of a steep hill; each time the boulder neared the top it rolled back down and Sisyphus was forced to start again.