This post was contributed by Kate Paterson

In July 2013, the trade union Solidarity will take the Department of Correctional Services to the Labour Court in Cape Town for what is anticipated will be a week-long trial of the constitutionality of the Department’s employment equity plan.

The plan is for the Department’s employees to be absolutely representative of the national population’s demographics by 2014.  Provincial implementation of the plan cannot diverge from these set targets.

The Department’s recruitment processes are regulated according to this plan, and any appointment from “non-designated” race groups needs to be sanctioned by the National Commissioner of Human Resources.

Solidarity, along with ten of its members in the Western Cape, has applied to the court to have the plan set aside for being discriminatory.  The members were not promoted in the Department because of being racially identified as “coloured” and the Department’s goal of limiting their coloured constituent to 8.8% of employees.  Solidarity argues that this policy is especially problematic in the Western Cape where over half the province’s residents are classed as coloured.

The case is likely to turn on the court’s interpretation of section 15 of the Employment Equity Act, which allows “preferential treatment and numerical goals” in affirmative action policies, but does not allow “quotas”.  The distinction between “numerical goals” and “quotas” has not yet been explicitly defined by the legislature or the courts.  If the Labour Court finds the Department’s policy to contradict the exclusion of quotas in the Act, it may well mean that other employment equity plans with specified percentage goals will require revision.

The matter is set down to be heard on 29 July – 9 August 2013.

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