Pierre de Vos ran a commentary on the Solidarity WCape case. I think it's a landmark case and is very welcomed – de Vos' conclusion at the end of the post highlights the issues we face with legislation that is intended to redress the injustices of the past
The judgment ….. affirmed the importance and legal validity of employment equity measures and also accepted that groups who used to be defined differently in terms of Apartheid race categories, still often have different opportunities because of the varying degrees of past and on-going racial discrimination. The principle is not in issue: only the manner in which it is being implemented is.
We come up against this issue all the time. Think in terms of Eskom and their implementation of empowerment. That aside the most interesting paragraphs in de Vos' post relate to the constitution and redress. I've combined a variety of paragraphs into one small paragraph to get to the point.
Wisely, Solidarity did not challenge the constitutionality of the relevant provisions of the Employment Equity Act (EEA). Such a challenge would certainly have failed, given the Constitutional Court jurisprudence on redress measures and not even Solidarity and its lawyer, Martin Brassey, were foolish enough to pursue that line of reasoning. (The Labour Court) pointed out that the Constitutional Court has found that redress measures are a prerequisite for the achievement of substantive equality, the court affirmed that the Employment Equity Act (EEA) itself mandated the imposition of redress measures in the workplace.
And here is the crux
In short, the judgment once again affirmed that redress measures are not discriminatory. Redress measures are not a form of "reverse discrimination", instead they are a prerequisite for the achievement of equality – something which we have not yet achieved and will not achieve for some time to come. It is exactly the absence of redress measures that would be discriminatory as this would perpetuate 350 years of racial privilege and would allow the status quo to continue.
For those who wish to challenge BEE on a constitutional level (which I think would fail) note this paragraph
It is important to note that this judgment only relates to an interpretation of the EEA and does not deal with redress policies and plans (such as admissions policies of Universities) not regulated by the Act. Because of the unique wording of the Act, the court found that the failure of the DCS to take cognisance of the regional racial demographics in the Western Cape – where more than 50% of the population belongs to a group which during Apartheid was designated as "coloured" – rendered its Employment Equity Policy invalid.
My issues with the latest BEE codes of good practice do not revolve around their constitutionality. I don't think it's worthwhile (even if it was possible) to launch a constitutional challenge on the codes. I have a problem with the fact that the DTI has continued to publish codes that are vague and contradictory, which I regard as unfair. And I absolutely object to the fact that the DTI went ahead and published something that businesses who are now required to implement them did not agree to. If there is a constitutional angle then it must be that under the PPPFA the points' allocation is unfair which doesn't make section 217 happy.
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