Constitutional Court preview: Solidarity v Dept of Correctional Services

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16 November 2015 – On Wednesday, the Constitutional Court of South Africa hears Solidarity v Department of Correctional Services CCT 78/15 (court papers), the sixth case in the Court’s fourth term of 2015, and one of the most high-profile.

Date of hearing:  Wednesday, 18 November 2015

Issue:  What is, and how do we apply, the constitutional test for evaluating an employment equity plan, considering the plan’s flexibility with respect to regional population demographics?

Background:  In September 2010, the Department of Correctional Services formulated and implemented an employment equity plan which set certain racial and gender targets heavily weighted, in accordance with 2005 national population demographics, in favour of African males and females. Importantly, this plan provided for deviations to be made by the National Commissioner of Correctional Services when there are scarce skills or where the positions applied for are central to the core delivery of the organisation’s business. A group of both White and Coloured applicants in the Western Cape challenged this plan’s formulation on the basis that it ignored regional demographics and amounted to a quota. Notably, the applicants did not challenge the plan’s implementation.

The Labour Court reasoned that section 42 of the Employment Equity Act requires employers to consider the “demographic profile of the national and regional economically active population”. Accordingly, it found that it was impermissible to ignore the regional demographics in the Western Cape when formulating employment targets and ordered the Department to take these into account.

The Labour Appeal Court applied the same logic. The Department pointed out that section 42 had been recently amended (pdf), deliberately downgrading employers’ obligation to consider national and regional demographics (“must”) into a discretion (“may”). Yet, in a striking somersault of statutory interpretation, the Court transformed the word “may” into a “must” and affirmed the impermissibility of ignoring regional demographics in formulating an employment equity plan. On the other hand, the Court rejected the applicants’ complaint that the plan was a quota, saying that it allowed for deviation from the racial and gender targets.

Interestingly, the Labour Appeal Court seems to have applied a combined general test of rationality, fairness and proportionality in evaluating the constitutionality of the plan. This new triple-tiered test, which was bizarrely assumed and not actually justified, seems to be stitched together from three separate judgments in last year’s high-profile Constitutional Court decision in Barnard. It is perhaps the most constitutionally relevant part of the Labour Appeal Court’s reasoning.

Things to watch:  Affirmative action remains a difficult and heated topic, and is no less so in the Constitutional Court, as evidenced by the four separate opinions delivered in Barnard. This, though, seems like the ideal case to finally settle some of the knotty aspects of how employment equity plans should be formulated and implemented.

The Court must decide exactly what is the general constitutional test to evaluate the manner in which an employment equity plan is formulated. Is a traditional means-and-ends rationality analysis sufficient? Or should a more opaque standard of “fairness” be applied? Or perhaps “proportionality” is the central criterion of evaluation? Or, as the Labour Appeal Court seems to suggest, perhaps all three tests have morphed into some congealed tiered-scrutiny test. Perhaps there is even a chance that a more judicially restrained approach, which defers to the legislature and does not require any external test outside the four corners of the Employment Equity Act, could be followed — though this sort of restraint would be uncharacteristic for our Constitutional Court. Whatever the case, it is high time that some definitive position be taken on this issue.

The Court should also pronounce on how such a test applies given regional demographics involving a minority that was also disadvantaged by Apartheid. Importantly, as the SAPS (appearing as the second amicus) points out, the peculiar history of the Western Cape and its “Coloured Labour Preference Policy” must be engaged with. The danger of this is, of course, that the Court may have to play an uncomfortable game of measuring which disadvantaged group has suffered more under Apartheid.

The Court should also address exactly how, as a matter of ordinary meaning in statutes, the word “may” can become, in substance, “must”, as the Labour Appeal Court held. Is this simply because the Labour Appeal Court cannot countenance a situation where the Department exercises its discretion in a manner that differs from the Court’s own unsubstantiated, hard-line position on the issue? Some rigour on interpretation would be welcome.

The applicants in this case also seem to want to review the employment equity plan’s implementation, albeit through the backdoor, by arguing that the manner in which the deviation from the plan was undertaken was not sufficiently flexible. They say that the Department permitted deviations from the racial and gender targets only in the case of applicants who have scarce skills and apply for a position that is central to the core business of the Department. This, according to the applicants, demonstrates a lack of flexibility, rendering this a quota, which is prohibited by the Act.

But this seems a clear case of attacking the plan’s implementation, not its formulation — and recall that the plan’s implementation was never challenged in the Labour Court. The text of the plan, too, is silent, and seems to confer a broad discretion on the Department in deciding whether to deviate. However, shaky as the applicants’ argument is, the Constitutional Court has shown itself not to be bound by procedural impediments to deciding an issue when it feels it will serve the interests of justice (for example, here and here, and indeed arguably Froneman, Cameron and Majiedt JJ’s judgment in Barnard), so there may be quite an interesting line of reasoning taken on the employment equity plan’s implementation as well.

All these issues make this one of the term’s, if not the year’s, most charged cases. The far-reaching consequences of this decision on national policy-formulation up the stakes significantly. Hopefully the Court will deliver a judgment that is clear, nuanced and rigorously tries to balance all these intersecting aspects of affirmative action.

Khomotso Moshikaro

About Khomotso Moshikaro

Khomotso is a researcher at SAIFAC (South African Institute for Advanced Constitutional, Public, Human Rights and International Law), a centre of the University of Johannesburg. He has an LLB from the University of Pretoria and a BCL and MSc from the University of Oxford, where he studied as a Rhodes Scholar. In 2013 he clerked at the Constitutional Court of South Africa. Next year he begins a PhD at the University of Cape Town.