Paul Janisch

"A policy cannot pass constitutional muster on good intentions alone"

Verbiage courtesy of Anton Katz AJ after he declared the "affirmative action policy for the appointment of provisional trustees to insolvent estates  invalid ....... because it was too rigid and used race-and gender-based quotas."

This is a very significant judgment because it's probably going to go to the Constitutional Court which will test the rigidity of crass racial classifications under the EAP.  Please read the whole report, which I have pasted in its entirity.  I have underlined those parts that I think are significant.

The aim of the policy was to address the fact that the lucrative liquidation industry remains largely a white and male enclave. It also sought — by providing for uniform measures — to prevent corruption and fronting in the industry, widely acknowledged to be a pervasive problem.

Acting Judge Anton Katz said the goal of the policy was "admirable".

"However, a policy cannot pass constitutional muster on good intentions alone."

In terms of the policy the master of the High Court would appoint the trustees on a rota system based on race and gender. Under the system white men would be appointed to one out of 10 positions — limiting them to about 10% of the work.

Judge Katz said Parliament had in legislation given the master of the High Courtdiscretion on who to appoint as a provisional liquidator.

Looking at the legislative scheme, he said appointment decisions had to be made first and foremost by the master, not the justice minister.

Even if the policy was interpreted generously, it went beyond the setting of guidelines and intruded "impermissibly into the master’s ability to apply his mind in the making of each appointment". The "rigid and inflexible regime" set out in the policy in effect turned the master into a "rubber stamp", he said.

Judge Katz also found that the prohibition in the Employment Equity Act of the use of race and gender quotas — as opposed to numerical targets — had wider application. Though quotas are not defined in the act, the Constitutional Court, remarking in passing, said employers could not place absolute barriers to the employment or promotion of men or white people.

Judge Katz quoted the Constitutional Court’s remark that the primary distinction between targets and quotas "lies in the flexibility of the standard". In this case, the policy could not be implemented in a way that was not mechanical and rigid.

"While the constitution is a transformative one and ... remedial action to address past injustices is a required and indeed lawful imperative, such measures must be nuanced," he said.

Judge Katz also briefly addressed the controversial argument made by trade union Solidarity: that categorising people according to race was "legally impossible".

He said he accepted that racial classification — "divorced from other contextual factors" — was an arbitrary threat to the dignity and autonomy of individuals.

But the categories referenced in the policy were "utilised throughout what can loosely be termed SA’s affirmative action legislation".

"It is not open to this court to determine that the categories used are themselves arbitrary and irrational," he said.

He said while white males might "decry" affirmative action, carefully crafted affirmative action policies were necessary to overcome "the stark disparities between those on the different sides of the colonial and apartheid divide".

via www.bdlive.co.za

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The underlying stench is overwhelming

de Vos on the Barnard case

The (Captain Renate) Barnard case was not about whether race-based affirmative action measures are permissible in South Africa. (It has long been settled by our courts that they are – not surprisingly, as section 9(2) of the Bill of Rights explicitly says so.) Neither was the case about the constitutionality or the legal validity of the employment equity plan devised by the police. (The validity of the plan was never challenged.) Neither was the constitutionality of the Employment Equity Act in issue. (Solidarity wisely decided not to challenge the provisions of the Act.)

The narrow question in the Barnard case was whether the National Commissioner of Police acted lawfully when he twice declined to appoint Renate Barnard as superintendent in order to ensure the effective pursuit of the numerical goals for racial representativity set out in the SAPS affirmative action policy. (The question of why other suitably qualified black candidates who also applied were not appointed was not raised or considered by the Court.)

via constitutionallyspeaking.co.za

This is probably the best summary of the judgment that you will read. The good professor often gets a little too moral for my liking but his opinion is always solid. You'd do well to read the whole post

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Employment Equity Amendment Act and fines (effective 1 Aug 2014)

Perhaps you have trawled the internet for the updated act and the fines.  What you will find is the original act and then another document showing the amendments.  Here are the consolidated sections that could attract a fine, you can print it but you can't copy from it.  If you like and use it please send me an email saying thank you.

If you don't then I'm sure you are silently grateful.

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Black is black - I want my black back

The black middle entrepreneurial class, SONA and the deep blue (AN) Sea

"Where are the black entrepreneurs who should be sitting around this table?", the very prominent Sandton CEO asked the room that was full of white entrepreneurial faces. The entrepreneurial faces belong to an entrepreneurial organisation. Of the many members only a handful are black. The banking CEO, as it turns out was asking a rhetorical question. "The absence of black entrepreneurs is probably a direct result of employment equity". If you are a skilled black person who is capable of starting a business the chances of you being swept up by the large corporates who are desperate to meet their EE commitments are very high. If you are an African woman and it's heard that you are printing your own business cards the corporate will come to the print shop and show you a telephone number for a sign on bonus and pick up the printing tab.

This conversation is anecdotal. But the comment is valid. It's long been argued that employment equity has stifled high-end black (specifically African) entrepreneurship. Yes we do have our Zungus – but I would argue that they aren't entrepreneurs in the true sense. Their business empires exist because of their connections with the ANC and Zuma in particular. This state of affairs is perpetuated by the ANC government who have recognised that they have lost the black middle class and are wooing them back for the 2016 municipal elections. It then doesn't come as a surprise that Zoomer's doddering state of the nation address had the following to say.

We will sharpen the implementation of the amended Broad-based Black Economic Empowerment Act and the Employment Equity Act, in order to transform the ownership, management and control of the economy. We will promote more employee and community share ownership schemes and boost the participation of black entrepreneurs in the re-industrialisation of the economy.

Ownership and management and control are a middle class aspirations. Employment equity and BEE are the vehicle that elevates the employees to the position where they are considered for ownership and management. All of the people targeted here are employees. The reference to broad-based ownership schemes is a small carrot for those at the bottom end of the economic spectrum. The reality is that the lucrative deals have been done and the money has been made. It's the third tier businesses that are going to put these deals together. Deals that will ultimately deliver very little for their broad-based shareholders. Deals that really shouldn't be done in the first place.

And so the black (specifically African) entrepreneurship class is doomed to non-existence. The black entrepreneurs that will "participate in the re-industrialisation of the economy" are probably going to be Zungu-like characters. Those true entrepreneurs like the banker I referred to are unlikely to surface in the short to medium term. As a result with the status quo being what it is I would imagine that entrepreneurship and employment creation are going to be the domain of white and Indian businesses.

If you want to know who the CEO is, here is a cryptic clue.

 

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Black is black – I want my black back

What does a ruling party do when they realise that their definition of black is not working for them? Simple, they use the economically active population (EAP) to create degrees of blackness. Perhaps the gestation of this thinking went along these lines.

ANC/government person 1: Soooooooooooooo we've got the definition of black in the BEE Act and the Amended Employment Equity Act as a "generic term for Africans, Coloured and Indians (subject to a few conditions.)

ANC/government person 2 (who has more than a standard 3/grade 5 and can read legislation): Indeed we do.

ANC/government person 1: This is not working for us.

ANC/government person 2 (who has more than a standard 3/grade 5 and can read legislation): Why is that?

ANC/government person 1: The bloody Coloureds and Indians are taking all the jobs and business and skills development spend and enterprise development and socio-economic development opportunities from the Africans. Our people (because the ANC is really an African party) are suffering.

ANC/government person 2 (who has more than a standard 3/grade 5 and can read legislation): Let's take a lead from the great leaper of vines – jungle jim (Mr Manyi as Hendrik Verwoerd would address him) and use the EAP. This way we get to prioritise jobs and other benefits for Africans.

ANC/government person 2 (who also has more than a standard 3/grade 5 and hence has no hope of running the country and cares not a fig for the Constitution): What a spiffing idea, I'll tell Mildred and you tell Rob.

On the way to see Rob, ANC/government person 1 bumps into Fikile Mbalula……..

The casual reader might think that this author has a major problem with this logic. Actually he doesn't (if I may speak for him). There is little doubt that Africans (who aren't white by the way even though it's patently obvious that white South Africans are Africans) are not benefiting as greatly as perhaps Coloureds and Indians are. But there are two problems

1. There is no legislation that allows the government to separate black people into further racial qualifications.

   The word black under both the EE and BEE Acts remains a generic term for "Africans, Coloureds and Indians".

2. It pisses off Coloureds and Indians

The second point is the most relevant because there is now a genuine outcry from Coloureds in the Western Cape who make up more than 40% of the EAP in that area and Indians in KZN. Regarding the latter there is a complete over-concentration of Indians in that region.

In the province of KwaZulu-Natal, where the majority of South Africa's 1.4 million Indian-origin citizens live, business and community leaders say such a law would reduce the number of jobs available to Indians because the national demographic population figure would be overwhelmingly black. Indians were shipped to KwaZulu-Natal from 1860 onwards to work as indentured laborers at sugar cane plantations, according to Ravi Pillay, an ANC member and provincial minister for Human Settlements and Public Works in KwaZulu-Natal.

Even Vivian Reddy who is a great Zuma acolyte is also not in favour of this.

An Indian businessman based in KwaZulu-Natal, Vivian Reddy said Indians were unfairly and unjustly being prejudiced by the proposed law.

That's a turnaround for the books.

The draft EE Codes of Good Practice have been roundly lambasted by a wide variety of people – including Marius Fransman. The period for comments has now past and Mildew Pachyderm has issued a press release

The draft Employment Equity (EE) regulations issued by the Department of Labour are in no way intended to disadvantage any of the designated groups, according to the Minister of Labour, Mrs Mildred Oliphant.

"Contrary to what some parties have claimed, the regulations were in fact introduced to enhance the implementation of the law. We opened the process up for comments and we sincerely appreciate and welcome all the comments that have been made. The social partners at the National Economic Development and Labour Council (Nedlac) are now busy consolidating these inputs. This means the final product will be a result of a consultative process that reflects the views of a cross-section of our population," she said.

These two paragraphs deserve a little more attention. The "in no way intended to disadvantage" disclaimer doesn't work anymore. We've learned the hard way from number 1's insincerities that they don't care about the consequences of their legislation. What she really means here is that the regulations are designed (not specifically unfairly as I mentioned earlier) to benefit Africans. They don't INTEND to disadvantage Coloureds and Indians even though they do in fact disadvantage them. We can take that with a pinch of salt.

And then the kicker – by now your bullshit radar must be on high alert – the social partners are consolidating the inputs. Let us consider Rob and his divisive codes – there is no way that the dti or Rob considered any of business' comments. They went ahead and published what they wanted to publish all in the name of section 9(2) of the Constitution. Rather like die-hard Nats justified apartheid.

AND

There is NO WAY ON god's GREEN EARTH that we can trust the ANC government's word here. The chances are overwhelming that they will go ahead and publish these codes as drafted and hide again behind section 9(2) and say – we never intended to prejudice. Yes, like Hitler never intended to kill Jews and Poles, all he wanted was a third Reich without them in it.

What then happened to ANC/government person 1 bumping into Fikile Mbalula (who is regarded by Gareth van Onselen as "the worst sports minister South Africa has ever had") and tells him about this new EAP thing that's taking the ANC by storm. Fikile yells "Europia" – we're going to set 60% quota targets on the major sporting codes (perhaps all of them). The press haven't really got the proper story here – in a long interview with Xolani Gwala on 702 last night he explained that the quotas are not generic black, nein mein Herr, these are African quotas.

As you can see, the EAP is a firm ANC policy. Whilst not specifically unreasonable (although I don't agree with national teams being bound to quotas) they do not have Constitutional or legislative support. In the absence of this the government cannot arbitrarly impose their will on us.

And this is one of the core tenets of our court case against the dti and their new codes.

Black is black anybody

 

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Canadian employment equity – their version of black is called visible minority

Courtesy of the Globe and Mail

In Canada, anyone who considers themself neither white nor aboriginal is classified by the government as a visible minority. It is an artificial concept that has become unnecessary and counterproductive.

Ultimately, the dividing line is arbitrary. For example, Arabic people from North Africa and the Middle East are counted as "white" in the U.S. Census. Yet anyone who ticks the Arab box on Canada's National Household Survey is counted as a visible minority – unless they tick both the white box and the Arab box. Then they're white. Indeed, there is something almost racist about the assumption that whites are the standard against which anyone else is noticeably, visibly different. That may be why the United Nations Council on the Elimination of Racial Discrimination has asked Canada to reflect upon its use of the term visible minority.

The Canadian government's official line is that the term is needed to support programs that promote equal opportunity. Visible minorities are one of four groups covered by the federal Employment Equity Act. (The others are women, people with disabilities, and aboriginal Canadians). The Act requires employers to remove barriers to employment facing members those four groups, and to "correct the conditions of disadvantage in employment."

While promoting equity is a good thing, the Employment Equity Act does so with too broad a brush. It lumps all visible minority groups together, instead of focusing on those who really are actually struggling in the labour market. As Justice Rosalie Abella wrote 30 years ago, when she chaired the Royal Commission on Equality in Employment:

"To combine all non-whites together as visible minorities for the purpose of devising systems to improve their equitable participation, without making distinctions to assist those groups in particular need, may deflect attention from where the problems are greatest."

Can you imagine if we had an EE Act that addressed employment issues on the basis of skills' deficit and not the Manyi-ite "economically active population". Imagine if it included all who were poor and without hope. Dream on mate, the ANC government lacks the will, competence, creativity and maturity to dream up anything as equitable as that.

Online EE report's deadline was yesterday. What fun

Admittedly I did leave it to the last minute.  Because of this I did expect the website to have issues.  Surprisingly it actually handled quite well.  But I had problems with parts of the website, most notably updating the employer details, the drop down menus for the provinces didn't work.  They didn't work on a variety of browsers and as such my submission is incomplete even though the numbers have been updated.

There is a telephone number you can phone for help but they don't answer it.  They did answer it this morning who then referred me to another person who I did speak to.

What an unpleasant specimen of humanity.  Completely unhelpful, antagonistic and rude.  He informed me (often) that I have not complied - refuted that his system did not work and offered a bunch of useless information about what I should have done yesterday.  Apparently I should have gone to my provincial office and told them that there was a problem.  However the website provides you with a national telephone number and two documents that tell you what to do - but can't solve your problems.  And because this is an online submission you'd expect there to be some sort of assistance somewhere.

What was most hysterical about this incompetent and unnecessarily aggressive piece of protected employment was that he told me that he wasn't part of the technical team. 

I am sure that this happens the world over - it's just that it's what you expect from our absolutely incompetent government.  You've got your work cut out for you Cyril.

Anybody else had a similar or better experience.

Affirmative action dragging heels, says watchdog

Nope this is not South Africa.  It's Namibia - startlingly similar to our local politicians.  As to the merits of the argument, I can't comment on that.  However when it comes to South Africa there is more than enough evidence to show that the public school system is so poor that the argument that those unfortunate to go through the system are in all probability not skilled enough.

THE Employment Equity Commission (EEC) has lashed out at companies’ reluctance to appoint racially disadvantaged (people) in top positions, saying it is “rooted in racial bigotry” and warning that the watchdog won’t stand for it.

For the year ended March 2011, blacks held only 26 per cent of all executive director positions in the country, compared to 59 per cent held by whites.
“The progress towards equity in employment has been slow and the top echelon in most business sectors remained unacceptably skewed in favour of white employees,” Vilbard Usiku, employment equity commissioner, said in the EEC’s latest annual report. The continuous marginalisation of blacks perpetuates the income inequalities along racial divide, he said.
Usiku said he no longer buys employers’ excuse that blacks aren’t skilled enough for top positions.
“White management appears to be perpetually stuck in the mindset that believes that the workmanship of the black persons is essentially shoddy and that they generally lack work ethic and ingenuity,” he said.
“This mindset, deeply rooted in racial bigotry, is a very serious and urgent challenge to the commission,” Usiku said. He said the income gap along racial lines in Namibia is real.

via www.namibian.com.na

 

The ridiculousness of the Manyi-inspired EAP targetting system (de Vos content)

Taken from Constitutionally Speaking.  The good professor opines thus:

I would suspect that these provisions, read holistically, might well be interpreted by a court to mean that the duty on employers to strive towards equitable representation of suitably qualified people from designated groups in the workforce requires them to take into account the regional and not national racial demographics when it formulates its affirmative action targets. As we know, the Department of Correctional Services’ current policy (which uses national racial demographics) in effect places an absolute barrier on the advancement of “coloured” correctional services personnel in the Western Cape – especially given the bloody-minded manner in which it is reportedly being implemented. Under the current plan, if a Western Cape officer working the Department of Correctional Services wishes to be promoted, he or she will almost always have to move to another part of the country.

Although the “coloured” personnel can, of course, apply for jobs elsewhere (where there is not – in the offensive words of Jimmy Manyi – an “oversupply of coloureds”), this requirement would place “coloured” members of the Department of Correctional Services in a very difficult position. If their roots are in the Western Cape, if their families live and work here, and if they speak predominantly Afrikaans, one of the dominant languages in the region, such employees may in effect be forced to choose either never to be promoted or to uproot themselves entirely. This may force many of them out of the service of the Department altogether.

This interpretation of the Employment Equity Act would be in line with the Constitutional Court’s jurisprudence on corrective measures as developed in the Van Heerden case, in which Deputy Chief Justice Moseneke stated that it was not constitutionally permitted to impose corrective measures on a group if those measures constituted “an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal” of achieving equality in a diverse society would be threatened. The Correctional Services Department’s policy may therefore be declared unlawful and not in line with the carefully interpreted provisions of the Employment Equity Act.

If the court found that the Act could not be interpreted in this way, I suspect it would have to declare unconstitutional the provisions in the Act which could be interpreted as allowing an employer to ignore regional racial demographics when it imposed an employment equity plan. This would be because such provisions (interpreted to allow for national demographics to be used exclusively when formulating Employment Equity Plans) would not meet the requirements for a valid corrective measures programme developed in the Van Heerden case.

Whatever happens, unless for strategic the Department settles this matter to avoid a definitive judgment by the Constitutional Court on these vexing issues (something the Department would be well advised to do and which it might still do if good lawyers are advising it), the case will probably go all the way to the highest court, where that court will finally be able to put these highly contentious issues to rest by giving guidance on corrective measures that apply differently to people previously classified as “coloured”, “indian” and “african”.

via constitutionallyspeaking.co.za

 

Superintendent Barnard, I presume

This debate is not going to go away in a hurry.  Poor Captain Barnard, or should we say, Superintendent Barnard, has become the darling of those who question the odd application of the EE Act within the public sector.  I am one of those people.

To my mind the intention of the act is completely forgotten whilst people like jungle jim chase their own questionnable agenda (racist even perhaps).  Not that I think we need worry about jungle - he'll come bouncing back with some rabble rousing comment which will set us back another ten years. It's not a bad act but it has been wholly let down by the SETAs and the schooling system.

Anyway - the judgment is now available on the internet.  The salient points were summarised on Leadership on-line.

Judge Pretorius among others found that:

• The Employment Equity Act and Employment Equity Plan must be applied with due regard to fairness and the individual's constitutional rights to equality. It is no longer sufficient to simply set up numbers and leave it at that and due regard is to be given in each individual case to the circumstances surrounding that particular case. If the Employment Equity Act and Employment Equity Plan is applicable it should be open to flexibility;
•  Because non-designated groups are adversely affected by equity plans this must be factored in against their rights to equality. In a case like Barnard it should be accepted that she has been adversely affected and that weighed up against the right to equality in reaching a decision;
• "The extent to which the implementation of employment equity plans may discriminate or adversely affect individuals is limited by law." This is where there is going to be a clash between the two schools of thought  - those who believe it's a numbers game as opposed to those who claim that fairness must be factored in as has been the case with Barnard;
• Where a post cannot be filled by a designated group it must fall to other groups;
• There must be a rational connection between the Employment Equity Plan and the measures to implement it; and
• Service delivery must be factored in where appropriate.

Looking at these points it seems almost vital that this does go to the constitutional court.