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Employment Equity Constitutionally Revisited

It is extremely rare to find a senior cabinet minister excoriating his own government’s chief spokesman in public. When the spokesman in question is also simultaneously president of a business management pressure group, probably due to the inability of his superiors in government to grasp that there is a direct and intractable conflict of interests between being a public servant and president of a pressure group, the unusual begins to border on the bizarre. Accordingly, the open letter which Trevor Manuel, the Minister of Planning, wrote to government spokesman Jimmy Manyi should not pass unnoticed. In it Manuel castigates Manyi as a racist – the type of person bent on the “black domination” that Nelson Mandela said from the dock in his trial that he would fight to his death – because Manyi first insisted upon (and then indirectly and reluctantly retracted) the notion that the so called Coloured people in the Western Cape should spread out across the country because there is an “over-concentration” of them in their traditional home.

At the time that this gratuitous advice was given last year, Manyi was Director General of Labour and the Black Management Forum’s (BMF’s) president. He was seized with the task of amending the Employment Equity Act – a piece of post-apartheid legislation that exists, inter alia, to “achieve a diverse workforce broadly representative of our people”. Manyi’s task was a thankless one. The social engineering necessarily involved in the legally questionable policy of promotion of employment equity under this Act is hopelessly off our constitutional rails. The public administration is the only field in which the constitution requires that the workforce must be “broadly representative of the South African people”. It is also true that consideration has to be given to the composition of the judiciary from the gender and race perspective so that it can “reflect broadly the racial and gender composition of South Africa”. But there is no requirement that race or gender be taken into account in any other employment context referred to in the Constitution.

Instead, the equality provision in the Bill of Rights requires that “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.” [Note that there is no reference to race in this provision, correctly so, as ours is a non-racial democracy.] The Employment Equity Act of 1998 is such a piece of legislation. In its preamble it reveals that it was enacted to:

  • “ensure the implementation of employment equity to redress the effects of discrimination; achieve a diverse workforce broadly representative of our people;
  • promote economic development and efficiency in the workforce; …”

The first and third of these objectives can not be cavilled at, but the second introduces a notion that is not in the constitution except as regards the public administration and the judiciary. This is where the Act comes off the constitutionally compliant rails on which it is meant to run. To compound this basic error, the Act creates what it calls “designated groups” along racial and gender lines (i.e. not according to “disadvantage” as required in the equality clause in the Bill of Rights).

“‘designated groups’ means black people, women and people with disabilities;”

Black people are defined thus: “‘black people’ is a generic term which means Africans, Coloureds and Indians;”

There is no specific definition of Africans, Coloureds and Indians. In this unfortunate way the race classifications of apartheid, scrapped in 1990, have been re-introduced for the purposes of the impracticable policy expressed in the Act. The designated groups are somehow, via the strained alchemy of social engineering, deemed to be disadvantaged by unfair discrimination, whether or not this is in fact the case.

The fundamental difficulty with the scheme of the Act is that the foundations of the new order are built upon the notions of non-racism and non-sexism. The rule of law, which encompasses the notion of substantive fundamental fairness, is also foundational to this new order.

Where the wheels fall off in the implementation of the type of employment equity the Act makes provision for is when, exercising their rights to freedom of association and freedom of movement, a large element of the designated group congregate in a particular province. In the case of the so called Coloured group in the Western Cape this phenomenon has led to a national minority group constituting a majority group in the province of its choice. This has had effects deleterious to the hegemony of the ANC and, at least in part, explains why the city of Cape Town and the province itself have escaped from ANC control.

Enter Manyi wearing his social engineer hard hat: a new provision is suggested; one which will have the effect of requiring designated employers (all the big ones) to employ according to the national, not the local demographics (or according to the demographics of their choice if the Department of Labour’s strained interpretation is to be believed). This idea has found its way into the draft bill at present under discussion. In practice, if passed in its present form, the new law will require that Africans replace so called Coloureds in the workforce of the Western Cape as there are simply too many, by Manyi’s reckoning, of the latter in the province. Hence Manyi’s throw-away suggestion that they disperse so as to ensure African domination everywhere. This is the remark that has provoked the ire of Minister Manuel. The fundamental substantive unfairness of the suggested amendment justifies all of the vituperation he has launched at Manyi. It is noteworthy that Manyi does not suggest that Africans in provinces where they are over-represented, or Indians in KZ-N, should also uproot themselves.

There are elements within the ANC and the BMF who agree with Manyi’s approach. Whether Manuel enjoys cabinet support for his stance remains to been seen. The draft bill was passed by cabinet. Manyi’s idea is the most direct route to the hegemony of the ANC’s National Democratic Revolution. According to this somewhat warped view there will be a non-racial society in South Africa when what is called “representivity” (not a word in the English language) in the workplace is achieved. This is not non-racism at all, it is social engineering. Non racism is achieved when people are judged and employed by the quality of their characters, not the colour of their skins. It ought not to matter in a truly non-racial order whether any person is black, brown, pink, yellow or green. If economic development and efficiency in the workforce are created non-racially a brighter future awaits. If social engineering of the type so firmly lodged in Minister Manuel’s nostril by Manyi is allowed it will lead to the type of breakdown that saw the end of apartheid, which was an earlier failed experiment in social engineering.

The problem with the Employment Equity Act goes deeper than the tinkering with provisions that Manyi has perpetrated. It ought not to be race based. Its true origin lies in disadvantage, not race. This is expressly the constitutional basis for protecting and advancing those disadvantaged by unfair discrimination – irrespective of their race. That many black people (as so unnecessarily defined) will be able to fall within this group is indisputable. There are also many black people and others who will not; just as there are “non-black people” who will be able to show that they were disadvantaged by unfair discrimination via their opposition to the old regime, conscription, homeland expropriation, the prohibition of mixed marriages and other excesses of apartheid.

Government should take the whole Act back to the drawing board. A non-racial future workplace beckons. It’s high time.

Paul Hoffman SC
March 2011

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