What happens when a designated employer achieves its proclaimed equity target? Does the principle of preferential treatment no longer apply? Must appointments be made exclusively on the respective merits of the relevant candidates? Does this fit into the overall idea of equality and its promotion as captured in the Constitution?
In Reynhardt v UNISA [2008] 4 BLLR 318; (2009 ) 29 ILJ 725 (LC) an award of substantial compensation was made because the university had unfairly discriminated again Professor Reynhardt based on his race.
On 25 May 2010 the Labour Appeal Court disallowed an appeal in UNISA v Reynhardt and also ordered UNISA to pay interest of 15.5% on the amount of compensation as from 20 March 2002.
Davis JA, on behalf of a unanimous bench, quoted from UNISA’s employment equity plan in para [29]:
“Appellant’s (UNISA) employment equity program contained another important provision which read as follows:
‘3 Occupational categories and level where demographic profile satisfactory:
In the event where your department/operational unit has achieved a state of balance in a way, please do not bother yourselves to try and do anything then. The University will have to consider applying the principle of the ‘most suitable candidate’ as and when vacancies have to be filled in such categories and levels. The principle of ‘preferential treatment’ in view of affirmative action considerations shall not apply in such incidences. The monitoring process will take care and ensure that we do not create skewness again in applying the principle’.”
Davis JA stated in para [30]:
“On the appellant’s (UNISA) own equity plan therefore, once appointments had been made which achieved the proclaimed equity target, the principle of preferential treatment was no longer to be followed and appointments were to be made exclusively on the respective merit of the relevant candidates. In itself this fits into the overall idea of equality and its promotion as captured in the Constitution”.
It is necessary to quote another passage from the judgment (para [31]):
“It is important to emphasise, given the importance of employment equity programmes to the transformation of South African society that the resolution of this dispute does not turn on the constitutionality of appellant’s (UNISA) equity plan. That plan passes muster in terms of the analysis that I have undertaken. The problem for appellant (UNISA) is that the plan provides expressly when remedial measures are no longer necessary. In other words, this case turns upon an application of appellant’s (UNISA) plan to the facts of the case”.
Hi Graham
I am not trying to pass the buck but I, for one, would like to hear your comments on these interesting judgments to which you draw our attention. Maybe if from the outset you commented or raised a question it would provoke more responses?
Worth a try?
Theo I take your point and will do my best to let you have my comments in due course. You may want to visit our other website for more views on the subject – see http://www.workscienceinstitute.com
Allow me to quote verbatim a letter appearing in Business Day today as I think it expresses an important point of view on the subject. In particular it mentions that ‘affirmative action” in the past was not applied in the private sector. As I understand it in Malaysia the majority ethnic group applied affirmative action in its favour, but only in the public sector. Perhaps South Africa should seriously consider imposing some sort of future ‘sunset clause’ for the private sector.
“Poor comparison
LOUIS VOLSCHENK Published: 2010/06/04 07:49:06 AM
Deputy President Kgalema Motlanthe sees it as ironic that black economic empowerment should be criticised, given the history of state attempts to solve the “poor white” problem (Nation’s history implores us to “avoid islands of memory”, May 31).
True, many government resources went towards solving the dilemma, just as is the case today with poor blacks. The question, though, is how efficiently and effectively those resources were applied, relative to today. In addition, Afrikaners worked actively towards uplifting their own, and contributed much from their own pockets.
National Party governments used the state as an empowerment mechanism, but never interfered in private industry. Companies like Sanlam and Santam were built from the ground up with Afrikaner capital, so I think that it is quite reasonable for them to have been used to provide employment for Afrikaners.
No English company was forced to sell a stake of its business to Afrikaners. There were also no preferential procurement schemes or requirements to employ Afrikaners. This despite a legitimate gripe about Britain’s cruel and unjustifiable war effort, which decimated the Boer population and left a trail of utter misery.
The country needed the skills that Englishmen and other foreigners offered, and the government was smart enough to appreciate this.
The only way to solve poverty is to create employment. The only way to create employment is to grow the economy. Growing the economy as fast as possible requires the best possible person in every position.
I would think that Mr Motlanthe would know better.
Louis Volschenk
Cape Town”
Thanks Graham, I will have a look at that site and the other views later.
I must say at the outset that I missed Mr Volschenk’s letter in Business Day and have also not yet read the comments of Deputy President Kgalema Motlanthe to which he is apparently responding. I read your transcript of Mr Volschenk’s letter only on this site.
Mr Volschenk’s letter is very interesting and does contain some thought-provoking points. However, it also shows how easy it is for good points in one context to become illogical when the context is broadened, or the broader context is recognised. It is always dangerous to discuss Economics as if it were an exact science, overlooking the difference between positive economics (what is) and normative economics (what ought to be). And when you try to separate politics and economics, as if that were possible, you tread on dangerous ground, particularly if you ignore who it is that decides “what ought to be”.
Nationalist (apartheid) governments “never interfered in private industry”, says Mr Volschenk. Well, not if you ignore a plethora of statutes adding up to a crime against humanity by ignoring the fact that the majority of the country’s population were people.
Mr Volschenk points out that Nationalist governments didn’t discriminate against English whites. That may be true, but the assertion glibly ignores the fact that they did discriminate against the vast majority of the population, only not against “English whites”. Except perhaps English, or all, white women? But that is an aside. They certainly discriminated against the vast majority of the population, who were not “English”, and certainly not “White”.
Mr Volschenk points out that the National Party governments were “smart enough” to appreciate that the country needed the skills of the “English and other foreigners”. Suddenly “English whites”, which I and you might have taken for South Africans whose home language was English, as opposed to Afrikaners, a term I thought referred to those of my compatriots and family whose home language was Afrikaans, become “foreigners”. I have never thought of myself as “English” in that sense.
While National Party governments may well have been “smart enough” to recognise that it made sense to use the skills of whites other than those possessed by Afrikaners, this was probably more related to expedience than smartness, and only added to the unfairness, nay criminality, towards the majority of South Africans, whatever their home language.
To conclude from such arguments that Deputy President Kgalema Motlanthe doesn’t know that using the best possible person in every position makes sense, is at best naïve and at worst vicious.
Thanks Theo for that valuable contribution and insight. What do you think about my suggestion of a ‘sunset clause’ in the private sector at some stage in the future?