Legal Fund Legal Team Centre

The Solidarity Legal Fund was established with one goal in mind: To oppose the government’s unlawful application of affirmative action. Solidarity is currently fighting up to 34 affirmative action cases on behalf of members and the public countrywide and wins 87% of all lawsuits. Solidarity constantly strives to protect the public from the government’s obsession with race and racial representation. The government’s continuous application of racial quotas resulted in the repression of minority groups and the total disregarding of skills. This application of race driven affirmative action leads to a weakening of the state and its institutions which influences the quality of service delivery negatively. The affirmative action cases Solidarity is tackling in the coming year tests the different elements of affirmative action because we must:

• improve service delivery;
• improve the effectiveness of the public service’s functioning;
• reject the exclusion of racial groups from job advertisements;
• eliminate the use of racial quotas with employment or the choosing of sports teams;
• see that the observing of regional demographics is not adapted unconstitutionally;
• protect minority’s rights to dignity and equality.

All these cases are tackled individually in order to eradicate racial quotas. Every case tackled has the influence to ensure that a non-racial driven society is reached. These legal costs cannot be covered by the Solidarity membership fees alone, thus it led to the establishing of the Legal Fund. To make these court cases financially possible Solidarity needs the public’s support through their contributions to this fund. Every case tests a different element of affirmative action and it is for this reason that Solidarity’s legal strategy is so comprehensive and this is also the reason why we must take these issues on with our bare hands. What does Solidarity do? Solidarity has already taken on many court cases on behalf of employees of the Correctional Services Department, the South African Police Service (SAPS), Eskom and various municipalities. This is, however, not enough. The application of affirmative action discriminates against racial groups based on the colour of their skin. The trade union took a historic step in 2016 by turning to the United Nations (UN) with the submission of a shadow report on affirmative action. It is the first time since 1994 that the ANC government had to defend itself against an international forum because of its human rights policy. The aim of the shadow report was to prove that the government’s application of the racial legislation is unconstitutional and in opposition to the UN’s convention about the elimination of all forms of racial discrimination. Solidarity’s complaint of racial discrimination against the South African government was heard in August 2016 by the UN. The case of affirmative action in South Africa was also placed on the CERD committee’s agenda after the trade union, Solidarity, and the civil rights organisation AfriForum’s, visit, and now it is also in the process to be addressed according to the committee’s diplomatic process. This process gives the South African government four years to give feedback at the next CERD convention about the impact of affirmative action on employment, training, and political and public matters. The government also has to provide proof that it complies with the committee’s conventions for the elimination of racial discrimination. It is our responsibility to do this because if we don’t do it, who will? Join Solidarity and SMS the word LETSBUILD to 34802 (R1/sms) or let us know where you would like to build at http://solidariteit.co.za/en/letsbuild/

Francois Redelinghuys Solidarity is well-known for not shying away when it is necessary to approach the court where injustices occur. The trade union has bared its teeth in several courts and has obtained favourable judgments in line with constitutional provisions on a multitude of subjects, whether labour law, affirmative action, religion, language or unfair practices. At present, Solidarity is fighting about 35 affirmative action court cases on behalf of its members, not to mention the visits the union has paid to the UN to enlist international support against the application of black economic empowerment. Last year Solidarity made headlines by assisting the now famous SABC 4 in the Labour Court following the journalists’ unlawful dismissal by the SABC management for refusing as ethical journalists to implement the policy of the former head of the SABC, Hlaudi Motsoeneng, not to report on demonstrations. Not only did Solidarity win the case on behalf of the journalists, but it also succeeded in obtaining an interdict against any further disciplinary action against the SABC 4. In addition, the persons responsible for the dismissal of the journalists had to give reasons to the court within five days why they should not be held liable for the legal costs in their personal capacity. Another consequence of the case was that the Labour Court granted Solidarity’s application that Motsoeneng in his personal capacity should explain to the court why he should not be held liable for the costs incurred during the case of the SABC 4. In one of the strongest judgments ever about race quotas, the Court of Appeal on 2 December 2016 found that race quotas are unconstitutional and irrational. The case was about a policy on the appointment of insolvency practitioners published by the minister of justice and constitutional development in the Government Gazette in February 2014. According to Dirk Hermann, chief executive of Solidarity, this judgment was one of the most important determining factors as far as the boundaries of transformation and equality are concerned. The government’s race policy received a bloody nose once again. “What is astonishing, however, is that the government apparently believes its obsession with race is superior to the Constitution. The Court of Appeal has found that the government is guilty of unfair racial discrimination. This is a very serious charge against a government that is looking to have racism declared a crime through legislation,” Herman said at the time. Earlier this year, Solidarity together with AfriForum also took the ministry of sport to the Labour Court in connection with the continued application of improper quotas in South African sports teams. According to Solidarity and AfriForum, the agreed quotas are not only against the law but in conflict with agreed international norms. "It is bizarre for the ANC to enforce such stringent race quotas. But it is not surprising. To the ANC, local racial legislation and international agreements are nothing more than idle words,” Johan Kruger, Solidarity’s deputy chief executive, said in May this year. Earlier this month, Solidarity obtained a far-reaching court order when the court found that the Metal and Engineering Industries Bargaining Council (MEIBC) should be placed under administration. This court order and the application brought by Solidarity was the first of its kind in South Africa and will drastically change the steel and engineering industry landscape. Marius Croucamp, Solidarity’s deputy general secretary, welcomed this historic order. “The order is a much-needed step to ensure that the MEIBC will be saved from being ruined. We believe the appointment of an administrator will ensure that the MEIBC will be turned around and will become financially sound. Saving the Council is crucial for the stability of the steel industry, which is under enormous pressure as it is,” Croucamp said. These and other court cases form only a small part of the various legal routes Solidarity has followed to combat practices the union believes are unconstitutional and discriminatory. Support Solidarity in its court cases.  Visit http://solidariteit.co.za/en/join-in-one-minute/ to join.    

The effectiveness of the Centre for Fair Labour Practices, part of the Solidarity Trade Union, has been tested over the past four years in that several cases of unfair labour practices have been taken to court and a string of victories has made this Centre enormously successful up to now.   The Centre is committed to combating all racially based labour practices based on numerical outcomes, and it also puts pressure on the government to review affirmative action so that an input-driven approach would be followed instead.   In 2006, Solidarity brought the first case of unfair discrimination on behalf of four members employed by the South African Police Service (SAPS) before the court. Since then, the Centre has won many other strong cases as well.   Anton van der Bijl is head of the new Centre and his talented team consists of Annika Labuschagne and Devon Basson. According to Van der Bijl, the Centre aims to ensure that the principles of equality and fair labour practices in South Africa are interpreted and defined rationally and in accordance with the letter and spirit of the Constitution.   “The Centre considers any ideology or viewpoint that equality can be linked to representivity and numerical outputs to be a fatal one as the inevitable consequences of that will be permanent racial classification and unequal treatment.”   The Centre is the only one of its kind since it focuses exclusively on combating unfair discrimination and establishing fair labour practices. According to Van der Bijl, no case gets preference over another. “We do not accept cases because they are high profile cases. We believe that every case is unique and should be treated as such,” he said.   What to do if you have a case If you want Solidarity to handle your case, you must comply with the following requirements:

1. You must be a member of Solidarity.
2. You must register an internal grievance and get hold of the necessary supporting documents.
3. You must bring your case to the attention of the Solidarity Service Office nearest to you for a merit assessment.
4. You must complete a mandate form for Solidarity.
5. You must be prepared to state your case in court.

    In order to ensure an improvement in the work environment, people should expose unfair practices by reporting these cases. The Centre can only assist members who come forward and provide the necessary information. Together we are stronger.   A few of the Centre’s successes   On 15 July 2016, the Constitutional Court ruled that the seven DCS employees that had been denied promotion on the basis of the DCS’s employment equity plan, had to be promoted and reimbursed retrospectively. This prominent court case against the DCS was initiated as far back as in 2012 when the trade union consolidated several cases with regard to the DCS’s controversial employment equity plan. Solidarity also won the protracted court case against the DCS in the Constitutional Court. The Court ordered that regional demographics should also be taken into account when drawing up employment equity plans.   In the same month, an agreement was signed between Solidarity and the SAPS’s top management that enabled the trade union to provide inputs on the SAPS’s employment equity plan for 2015 – 2019. This is a big step in the right direction as the SAPS acknowledged that the current plan had to be adjusted to comply with legislation. Solidarity drafted a comprehensive document which was handed over to the SAPS so that an employment equity plan that met the legal requirements could be implemented. The agreement further entails that all relevant cases currently referred to the Labour Court by Solidarity, are to be discussed with the SAPS management in order to investigate the possibility of reaching settlement agreements.