FAIR: Jeremy Gauntlett SC, counsel for Solidarity. Picture: THE TIMES
FAIR: Jeremy Gauntlett SC, counsel for Solidarity. Picture: THE TIMES

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TRADE union Solidarity’s 10-year fight to have the Department of Correctional Services’s employment equity plan invalidated will enter its final leg at the Constitutional Court on Wednesday.

The case will be a litmus test on whether regional demographics may be considered when making appointments, especially in the Western Cape and KwaZulu-Natal. The provinces are majority black. One has a large Coloured majority and the other a significant Indian presence.

Solidarity is bringing the case to the court on behalf of 10 members employed by correctional services in the Western Cape. The 10 employees applied for appointment or promotion and were shortlisted and identified as "strongly preferred" candidates.

But none got the nod or was promoted as their race and/or gender were considered "overrepresented" in the department and their appointment would have been out of step with its equity plan.

The protracted legal battle has played out before the Labour Court and the Labour Appeal Court.

The term "black" encompasses Africans, Indians and Coloureds, who are described as "designated groups" in the Employment Equity Act. It is used for groups previously disadvantaged by discrimination and includes women.

Apartheid segmented groups of black people and affirmative action measures that do the same have been troubling the courts.

The case may also clarify an important question for those who employ 50 people or more: how to differentiate between an employment equity "quota" and a "numerical target".

The former is prohibited by law, while the latter is allowed. Quotas have been described by the Constitutional Court as akin to "job reservation", while numerical targeting is seen as a more flexible approach to equity goals.

The labour courts found that the department’s plan was defective because it failed to take into account regional demographics. Although Solidarity wanted the courts to make this finding, it has still appealed. The union wants the Constitutional Court to also rule on whether the department used quotas or targets and if it applied its plan too rigidly.

Solidarity counsel Jeremy Gauntlett SC has argued in his heads of argument that the act is not only about redress.

The act and other laws seek to balance redress with considerations of fairness and efficiency. The act envisaged "broad" representation and the flexible use of targets, recognising that "precise" racial categorisation is "not to be tolerated ..."

The act does not envisage "a mechanical adoption of national demographic statistics", said Mr Gauntlett.

The department, supported by friends of the court the Police and Prisons Civil Rights Union (Popcru) and the South African Police Service, has focused on the regional demographics issue. The act has since been amended. Before regional demographics were a factor that "must" be considered in implementing employment equity; now the wording has changed to "may".

In heads of argument, department counsel Marumo Moerane SC argues that taking into account regional demographics "has the effect of perpetuating and entrenching previous historical patterns based on race".

Police counsel Tembeka Ngcukaitobi agreed, as did Popcru counsel Vuyani Ngalwana SC, who said it was wrong to hold that regional demographics must be taken into account as this "perpetuates the racial topography to which apartheid gave birth and sustained for so many years".

Mr Gauntlett rejects this view.