SA’s biggest Affirmative Action case goes to court

July 5, 2012 6:00 pm

Earlier this year five officers from the Department of Correctional Services (DCS), who took the department to court in February over alleged discrimination after each being overlooked for promotion due to their coloured classification, were revealed as Geo-nita Baartman, Linda-Jean Fortuin, Andrè Jonkers, Christopher February and Pieter Dawids.

The furore came about when the department chose to employ based on national rather than provincial demographics under Section 42 of the Employment Equity Act (EEA) (1999), and subsequently stalled promotion for coloured employees in the Western Cape.  In tandem the Service imported black South Africans from elsewhere in the country to fill new positions and meet employment targets, at a time when the coloured community of the Western Cape was still reeling from Jimmy Manyi’s words of 2010. Manyi, then Director General of Labour and a key player in the implementation of the EEA, commodified the coloured community by claiming a surplus of supply in the Western Cape and advocating that coloureds fan out to the rest of the county to readdress this over-concentration.

It’s a Question of Demographics

The EEA, intends to move towards reparations for the era of apartheid and the concurrent de-skilling of the black community, and will positively discriminate in favour of those who previously missed out on opportunities to access qualifications and work. The Act allows employers to set equity targets based on affirmative action, but does not promulgate quotas.

In implementing the Act in the Western Cape last June, the DCS set their employment targets at 79.3% for black employees, 8.8% for coloureds, 9.3% for whites and 2.5% for Indians, as per national demographics. But the demographic breakdown of the Western Cape favours the coloured population with 54% coloured, 26% black, 19% white and 1% Indian.

Thus it appears not to be the Act itself in question but the interpretation of it, as to whether a department should base employment procedures on the blanket national demographic or the idiosyncratic provincial statistics. In this instance the courts will have to decide what stands.

Trade Union Solidarity has recently picked up the case involving DCS, who have denied the claims of discrimination against coloured employees. The case has been supported by the FW de Klerk Foundation and is currently being referred to the Labour Court. Solidarity is also speaking to a further 26 employees over the application of the policy, making this the biggest Affirmative Action case in South Africa to date.

Where next?

To proceed with an Employment Act based on absolute representivity will surely lead to further dissatisfaction, but the Police, Prisons and Civil Rights Union (Popcru) has defended DCS’s decision to implement the national demographics and believes South African policy should remain standardised. “Once we isolate ourselves to the Western Cape and the Eastern Cape, we will go back to the Apartheid system,” said Popcru’s Western Cape chairman Francisco Fields. “We are part of South Africa, we didn’t fight for certain groups: we fought for South Africa to be united.”

But how far does this ideal of unification reach the people themselves? “We are supposed to be a rainbow nation,” asserted one employee of DCS, who wished to remain anonymous. “We send out to the world this rainbow picture that we are all one, from the air, but from the ground it is very different. Inside, South Africa is at war. Not an actual war, but it can escalate.”

“We are moving back to a society where race becomes the central issue”, corroborated Dave Steward, director of the FW de Klerk Foundation, “This is supposed to be a non-racial society.”

The Long Walk

If DCS continues to employ national demographics the department will be aiming to reduce the percentage of coloured employees in the Western Cape from 39% to 9% of the total.  This more quota-based interpretation would leave coloured people with little choice but to leave a place that may have been their home for centuries in search of work or promotion despite being, in many cases, the best qualified and most experienced candidates for open positions.

While a vast majority would assert that the progress and integration that continues to be made in South Africa since 1994 remains positive this recent case demonstrates that, as quoted by Peter Hain in a recent interview, the country still has a “long way to go because the legacy [of apartheid] was horrific.”

We are reminded that complacency breeds contempt and moving on means continuing to work together to progress, while recognising the past. Once again Nelson Mandela’s resounding words of 1964, echoed more recently by Trevor Manuel, continue to reverberate around the issue of South African politics:

“During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.”

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