The Labour Appeal Court in Cape Town on Friday ruled that the Department of Correctional Services (DCS) may not only apply the national demography in the Western Cape. This judgment was given after Solidarity had taken the DCS to court on behalf of ten DCS employees because the department only wanted to apply the national demography.
“This judgment is a major victory for Solidarity and a major setback for the state’s policy to apply the national demography all over South Africa,” Solidarity Chief Executive Dirk Hermann said.
According to the judgment, the earlier Labour Court judgment given by Judge Hillary Rabkin-Naicker is upheld. In terms of this court order the DCS, may not when making appointments or promoting employees, only consider the national demography but must also consider the demography of the Western Cape.
Dirk Groenewald, head of Solidarity’s Centre for Fair Labour Practices, says this judgment confirms once more that the Employment Equity Act prohibits the use of quotas, and that a nuanced approach has to be followed when setting numerical targets. The Labour Appeal Court also indicated that it failed to see how any employment equity plan that only takes into account the national demography could be constitutional.
“This judgment has far-reaching implications for other government departments such as the South African Police Service (SAPS), which too, only consider the national demography. The Labour Appeal Court judgment thus sends out a clear message against the use of the national demography as only criterion, as well as against practices that constitute a quota system in whatever form it may take,” Groenewald says.
Although the court agrees with Solidarity’s argument in principle, it still hasn’t granted the applicants individual legal remedy. The court is of the opinion that there is no clear evidence that the members would indeed have been appointed had the DCS used the regional demography as criterion.
“We don’t agree with the court’s opinion in this regard as a panel had identified our members as the most suitable candidates for the positions in question. We hold that our members would have been appointed had the DCS not enforced the national demography. We will challenge this aspect of the judgment in the Constitutional Court,” Groenewald said.
This prominent court case against the DCS started back in 2012 when the trade union consolidated a number of court cases against the DCS’s controversial affirmative action plan. According to this plan, the national demography all job levels have to reflect the national demography notwithstanding the demographic profile of a province or a region. Coloured South Africans constitute approximately 51% of the Western Cape’s economically active population and in certain regions this percentage is even higher, while at a national level, coloured people constitute only about 8,8% of the total population.