According to Dr Dirk Hermann, Chief Executive of Solidarity, “before, Solidarity had confined itself to legal strategies involving unfair applications of employment equity plans. In this case, a favourable outcome for Solidarity will have a domino effect all across the South African labour market. Every employment equity plan in itself will become contested terrain and open to tests for rationality and suitability, over and above the way in which the plan is applied.”
Employment equity plans are policies by which employers seek to bring about equitable representation in their workplace. The Employment Equity Act requires all employers of a significant size to have employment equity plans.
The SAPS’s employment equity plan was formulated in 2010 for the period 2010 to 2014. The plan states, among other things, that promotions in the SAPS will be distributed according to the national racial demographics as approximated in Statistics South Africa’s 2006 mid-year population estimates.
According to Hermann Solidarity contends that the SAPS’s plan, by focusing on the national racial demographics as the only yardstick for measuring equitable representation, is illegal. “The SAPS’s plan amounts to race quotas, leading to a situation that a person’s race can form an absolute barrier to employment. However, the Employment Equity Act explicitly forbids absolute barriers to employment or promotion. Furthermore, the Employment Equity Act requires that a range of factors – and not only race – should be considered in determining equitable representation.”
Hermann points out that, for one, it is absurd to require the SAPS’s staff to reflect the racial composition of the South African population at every level and at every location. “The racial composition of that part of the population that satisfies requirements for employment in the SAPS – including a matric certificate and driving license – differs significantly from the racial composition of the South African population overall.”
Hermann notes that it is remarkable that the Police and Prisons Civil Rights Union (POPCRU) has, as amicus curiae, ranged itself on the side of the SAPS. “Once again POPCRU has positioned itself by the side of the employer and against the employees, just as it did last year in Solidarity’s affirmative action case on behalf of ten employees of the Department of Correctional Services against the department; and in Solidarity’s Constitutional Court case on behalf of Captain Renate Barnard against the SAPS.”
