“The reality of an historic struggle for civil rights has degenerated into the hustling rhetoric of Newspeak. “Equal opportunity” now means preferential treatment. “Voting rights” now include preferential chances to win. School desegregation no longer means the right to attend any public school, regardless of race, but being forced to attend where you are told, according to race. “Equal justice for all” now means compensatory benefits for some—usually the more fortunate of those who share the political label “disadvantaged.”
― Thomas Sowell, (American economist, social theorist) Civil Rights: Rhetoric or Reality
It seems that the main thrust of the amendments is:
Clause 4 of the Bill seeks to insert section 15A to empower the Labour Minister to: (i) identify national economic sectors; and (ii) determine numerical targets for these sectors. Clause 6, for its part, seeks to amend section 20 of the EEA in order to link the sectoral employment equity targets to the numerical targets set by the designated employers in the employment equity plans of their workplaces.
Clause 11 of the Bill seeks to amend section 42 of the EEA ‘in order to clarify’ that a designated employer’s compliance with its obligations to implement employment equity may, in addition to being measured against the demographic profile of the national or regional economically active population, be measured against compliance with the sectoral numerical targets set by the Labour Minister in terms of the proposed section 15A.
When these amendments are measured against respectively international and national yardsticks, we submit that:
On 12 July 2018, the South African Human Rights Commission (SAHRC) released its Equality Report 2017/18 with the sub-title ‘Achieving substantive economic equality through rights-based radical socio-economic transformation in South Africa’ (Equality Report).
This report was the direct consequence of recommendations from the UN CERD committee made on the 04th of October 2016.
The report stated amongst other, and I am going to paraphrase, that the Employment Equity Act be amended to target more nuanced groups on the basis of need, and taking into account social and economic indicators. Further, employment equity plans should be qualitative and context sensitive, and should be further amended to revert to the position where the consideration of the regionally economic active population in relation to representational levels is mandatory and not discretionary.
We submit that in the amendments the Department and the Minister are not responsive to the recommendations of the SAHRC as set out in the Equality Report, and that the Bill moves in the opposite direction of that which was proposed for consideration by the SAHRC due tot the fact that sectoral determined targets by the Minister will neither be more context sensitive nor nuanced.
The golden thread that runs through the Constitution and the EEA is the requirement of fairness and reasonableness in the adoption and application of affirmative action measures. Any suggestion, therefore, that affirmative action measures may be applied mechanically, with the Minister given virtually untrammelled powers to set targets for industries and sectors, must be rejected out of hand. Sound reason and fairness are the touchstones.
A situation where the state (through the Labour Minister) controls the allocation of employment on the basis of race and gender is societal manipulation and not equitable representation, and amounts to effectively a quota system. The aim of achieving equitable representation is to ensure that unfair discrimination is eliminated and that every person has the same opportunity regardless of race or gender. The rigid setting of ‘targets’ aimed at proportional representation in the workforce does not mean that the aim of a just and fair society is achieved.
We conclude that the proposed amendments will not only be unconstitutional and unlawful, but will be directly opposed the International convention on the Elimination of Racial Discrimination signed by South Africa, and the Human Rights Councils Equality report which flows from it. In a country with an unemployment rate of more than 32%, decentralisation and deregulation might be something worth looking into.