It's not possible to think about the economically active population (EAP) without considering the ANC's institutional racist. I was not aware of the EAP until I caught jungle mouthing off about the oversupply of coloureds a few years ago. This EAP now allows the government to institutionalise the concept of degrees of blackness. It's not supported by the Constitution but has found favour within the Employment Equity Act. And for those who don't know – it's found its way into Rob's Folly (aka the new BEE codes).
The question is "can the BEE codes of good practice include EAP targets?". Rob the Horrid Red would say most certainly, Lionel October would tell us that the codes are very clear, concise and written in uncontradictory English (because he's read them). I would argue not. Take a look at this logic.
This is the General Notice on page 3 of the codes.
NOTICE 1019 OF 2013
DEPARTMENT OF TRADE AND INDUSTRY
I, Dr Rob Davies, Minister of Trade and Industry, hereby:
- Issue the following Code of Good Practice (the codes) under section 9 (1) of the Broad-Based Black Economic Empowerment Act, 2003 (Act No 53 of 2003)
I've underlined the relevant Act because the new BEE Bill is still a Bill. This means that the 2003 Act is relevant. In this Act, the term black is defined as "a generic term which means Africans, Coloureds and Indians". Each "race group" that may be regarded as black is equally black. It doesn't say "a generic term in line with the EAP statistics". The Act does allow a code of good practice to differentiate between people. Section 9 (4) says
(4) In order to promote the achievement of equality of women, as provided for in section 9(2) of the Constitution, a code of good practice issued in terms of subsection (1) and any targets specified in a code of good practice in terms of subsection (3), may distinguish between black men and black women.
Where then does the BEE Act itself allow for the EAP? It doesn't. The BEE Bill makes no reference to EAP either, all it does is repeat the definition of black that we find in 29617. I know that Lionel will refer us to section 9 (2) of the Constitution as a justification for this. Section 9(2) cannot be read in isolation and must be seen within the context of section 9
Equality
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
What Lionel now needs to do is demonstrate that the inclusion of EAP targets is fair within the context of BEE. We know from a variety of court cases that Solidarity has brought before the courts that there are serious problems with the implementation of EAP targets in organs of state. If we allow the EAP targets to permeate a BEE implementation we will find grounds for constitutional unfairness. Think in terms of the, as Lionel would say brilliantly written and ultra-clear skills development code. About 90% of all skills development spend needs to be directed towards Africans. From a points' perspective that 90% will get you about 7.2 points out of 8 – there is no incentive to spend any money on coloureds and Indians to make up the remaining .8 points. Then you've got an issue with the training of white people – this spend is over and above the 6% of payroll spent on training black people. And because this 6% is way over most corporates' training budget it will discriminate against anyone who isn't black.
I would argue that the EAP targets are not fair, as per section 9(5) and on top of this they are not supported by the very act that creates the BEE Codes – namely the BEE Act.
The court in the Solidarity obo Barnard v SAPS (165/2013) case said the following
'Dealing with race classifications, as is necessary under the EEA, feels almost like a throw-back to the grand apartheid design. If we are to achieve success as a nation, each of us has to bear in mind that wherever we are located, particularly those of us who have crossed over from the previous oppressive era into our present democratic order, it will take a continuous and earnest commitment to forging a future that is colour blind....For now, ironically, in order to redress past imbalances with affirmative action measures, race has to be taken into account. We should do so fairly and without losing focus and reminding ourselves that the ultimate objective is to ensure a fully inclusive society - one compliant with all facets of our constitutional project.'
Forcing the EAP targets on the private sector as an absolute requirement cannot be regarded as fair.
Oversupply of Coloureds anyone?
Comments