Picture: succo/Pixabay
Picture: succo/Pixabay

Solidarity to ask court to compel govt to amend affirmative action legislation

By ANA Reporter Time of article published Sep 15, 2019

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JOHANNESBURG - Trade union Solidarity will ask the Labour Court in Johannesburg on Wednesday to oblige government to implement the recommendations of a report on equality released by the South African Human Rights Commission (SAHRC) about 18 months ago.

According to the report, certain parts of the Employment Equity Act (EEA) do not comply with the Constitution and international conventions, Solidarity said in a statement on Sunday.

In this regard, the equality report stated: “The Employment Equity Act’s definition of designated groups is not in compliance with constitutional or international law obligations.”

Solidarity believed this could signal the end of affirmative action as it currently stood.

In its report, the SAHRC recommended that the Act be amended, and that government give feedback on how the Act would be amended within six months after the release of its report. 

The recommendation read: “It is accordingly recommended that the EEA be amended to target more nuanced groups on the basis of need and taking into account social and economic indicators and that government report to the SAHRC within six months of the release of the equality report on steps taken or intended to be taken to amend the EEA.”

The report further recommended: “The EEA 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.”

Government should also “determine whether and how the EEA can be amended to require a qualitative and context-sensitive assessment of need when employment equity plans are implemented”.

"Government has not complied with the SAHRC’s recommendations. Solidarity will now ask the court to ratify the SAHRC’s recommendations," the union said.

The SAHRC report came in the wake of recommendations made by the United Nations Committee on the Elimination of Racial Discrimination (CERD). The CERD report was sharply critical of South Africa’s racial classification system.

The recommendations of the UN committee were made subsequent to submissions the department of justice and Solidarity had made in 2016 to the CERD in Geneva, Switzerland. Solidarity subsequently also filed a petition with the SAHRC requesting that South Africa’s compliance with international law obligations be investigated.

Solidarity COO Dirk Hermann said the gist of the SAHRC report was that affirmative action should be applied in a more nuanced way; that the need and socio-economic indicators must be taken into account; and that the way in which affirmative action was currently applied gave rise to a practice of race quotas.

In chapter 1 the SAHRC report stated that “special measures are currently misaligned to constitutional objectives. Where special measures are not instituted on the basis of need, and taking into consideration socio-economic factors, they are incapable of achieving substantive equality”.

The SAHRC further noted that a context-sensitive approach was thus congruent with the CERD’s requirements for special measures.

"Government has not made any changes to the Employment Equity Act yet, despite the country’s human rights watchdog having found that its unnuanced racial approach is unconstitutional. To persist with this without trying to have the findings set aside is contemptuous of an institution established by the Constitution and is in contempt of the Constitution itself.

"We are now asking the Labour Court to oblige government to implement the recommendations, which would mean amending the Employment Equity Act," Hermann said.

African News Agency (ANA)

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