South Africa’s affirmative action legislation is unlawful and must be amended the The South African Human Rights Commission (HRC) has found.
The call for change comes after the HRC found that the Employment Equity Act does not comply with the UN International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the Constitution of South Africa.
The HRC has now released a report on equality, finding, inter alia, that the Employment Equity Act must be amended urgently.
According to Solidarity Chief Executive Dr Dirk Hermann, this means, in short, that South Africa’s affirmative action legislation is unlawful. The HRC report was compiled after Solidarity’s submission of a report on South Africa’s affirmative action programme to the United Nations’ Committee on the Elimination of Racial Discrimination (CERD) as well as a petition to the HRC.
Hermann added that this report and recommendations are of paramount importance and that they will change the appearance of affirmative action forever.
The HRC found, inter alia, that the Employment Equity Act does not comply with the UN International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the Constitution of South Africa.
According to the HRC report, affirmative action must be context sensitive and the demographics of the region must be taken into account. The current race classification is unacceptable and measures should be more nuanced. The report also found that needs have to be taken into account, that there should be an end to affirmative action measures, and that these measures are too rigid in South Africa and that they constitute a quota system.
Within six months from July 2018, the Department of Justice and Constitutional Development, the Commission for Employment Equity and the Department of Labour all have to give feedback to the HRC regarding the steps taken to amend the law.
“The recommendation of the MRC as a section 9 institution is as binding as recommendations by the Public Protector. The government won’t be able to sidestep this. The law will have to change. In our 20-year struggle regarding affirmative action, this is our biggest breakthrough yet. It is a confirmation that we have been right all these years and that race cannot be the only factor in affirmative action,” Hermann said.
Solidarity also announced that it would approach the courts for an explanatory order to gain clarity on how employers and the Department of Labour should deal with the situation until the law is amended.
“South Africa now sits with the dilemma that we have a law that does not comply with the requirements of international conventions or the Constitution. The implementation of this law will lead to the violation of rights. We want clarity on how employees should deal with this situation. However, business as usual is not an option any longer,” Hermann said.