Two major court decisions in South Africa were seen as a victory for the country’s Coloureds (word used by the South Africa’s mestizo people to identify themselves) and a defeat for the government’s anti-Coloured policy of racial quotas. South Africa is governed by the African National Congress (ANC), Nelson Mandela’s party, which came to power after the end of the indigenist apartheid regime implanted by white segregationists. The Coloureds and whites have accused the black majority government of implementing policies – supposedly to combat racism – to discriminate against them.
The Solidarity versus Department of Correctional Services case involved Coloured candidates who had been denied their promotions by the Department of Correctional Services of Western Cape, the country’s largest province, with a largely Coloured population within a country with mostly black population.
The federal government implemented racial quotas in public jobs with percentages according to national racial percentages, disregarding the regional realities. As a consequence, there was a limitation of Coloured vacancies in Western Cape below the local percentage of the population.
The black government has been accused of using racial quotas to promote ethnic cleansing of the Coloured, a claim that gained strength when, on 2011, federal government spokesman Jimmy Manyi stated in a commentary with great repercussion that Coloureds would be overly concentrated in Western Cape and should move to other provinces to find employment.
Signed in government policy, the Department of Correctional Services argued that the Coloured population group would be overrepresented in employment, in terms of the department’s national demographics based on the 2010 Employment Equity Plan.
Both the Labour Court and the Labour Appeal Court held that the department’s EE Plan was unlawful because it set numerical employment targets for the different racial groups that were based exclusively on the national demographic profile, without therefore taking into account the regional demographic profile as it was obligated to do by virtue of s42(1)(a) of the Employment Equity Act 55 of 1998 (EE Act).
However, neither of the above-mentioned courts set aside the EE Plan as invalid, nor did they grant remedies applied for. As a result, the applicants sought in an appeal to the Constitutional Court for appropriate relief.
This was granted in their favour in an important judgment delivered by Judge Raymond Zondo, who made it categorically clear that there is no place for racial domination in our constitutional dispensation or body politic.
Racial quotas are ‘unconstitutional and irrational’ says Supreme Court of South Africa
Another government defeat was the decision that racial quotas in South Africa are not only unconstitutional but also highly irrational, according to the Supreme Court of Appeal (SCA).
In one of the strongest judgments to date on racial quotas, the SCA found racial quotas are unconstitutional and irrational.
The ruling came in a matter brought before the court by South Africa’s Minister of Justice and the Master of the Supreme Court. Trade union Solidarity, various associations acting on behalf of concerned insolvency practitioners and a society of Afrikaans speaking law practitioners (Vereniging van Regslui vir Afrikaans) were the respondents. At issue was a policy determining the appointment of insolvency practitioners published by the Minister of Justice and Constitutional Development in the Government Gazette in February 2014.
According to Solidarity Chief Executive Dirk Hermann, this judgment is of key directional importance for South Africa as far as transformation and equality are concerned. Yet again, government’s racial policy took a beating. “What we find surprising, though, is that government seems to believe that its obsession with race takes precedence over the Constitution. The SCA found that government is guilty of unfair racial discrimination. This is a grave charge against a government that wants to use legislation to criminalise racism,” Hermann said.
In their summary, Judges Mathopo, Mpati, Swain and Van der Merwe found that this matter deals with the ambit of the test for equality, which suggests that the court, too, considers this judgment to be directional.
In terms of the policy on the appointment of insolvency practitioners, appointments have to be made strictly in accordance with a racial quota system. For this purpose, four categories have been determined, namely (A) African, Coloured, Indian and Chinese females who became South African citizens before 27 April 1994; (B) African, Coloured, Indian and Chinese males who became South African citizens before 27 April 1994; (C) White females who became South African citizens before 27 April 1994; and (D) African, Coloured, Indian and Chinese females and males, as well as White females, who became South African citizens on or after 27 April 1994, and White males who are South African citizens. When appointing practitioners, the Master of the High Court must follow the following ratio: four from Category A; three from Category B; two from Category C; and one from Category D.
The Supreme Court of Appeal found this policy and system to be unconstitutional and irrational, declaring it unlawful and invalid. The court issued a cost order against the Minister of Justice and the Master of the High Court.
In their judgment, the Supreme Court of Appeal Judges write that remedial measures must operate in a progressive manner assisting those who, in the past, were deprived of the opportunity. However, such measures must not unduly invade the dignity of those affected by them. The Supreme Court Judges found that remedial measures may not display naked preference. The judges held that the implementation of a racial quota system is one such form of naked preference.
The Supreme Court of Appeal found there was no flexibility in the policy ruling the appointment of insolvency practitioners. Such rigidity is frowned upon and runs contrary to section 9(2) of the Constitution. The Constitutional Court has already prohibited such rigidity.
The Supreme Court of Appeal also found that, in its current format, the appointment policy could result in a person who is unsuitable and unqualified for such an appointment being appointed as liquidator.
According to Hermann this policy clearly highlights the absurdity of government’s racial classification system. There is no regard for skills; only race is taken into account. In the case of this appointment policy race, and not insolvency matters, is what counts.
The court also referred to the absurdity of grouping white males together with all those who became citizens after 1994. In reality, it will lead to the disadvantaging of young people of all race groups who were born after 1994.
“Government’s policy is not de-racialising South Africa; rather it is intensifying a policy of racial classification that is applied in a rigid manner,” Hermann concluded.