ConCourt summary:

“Validity of employment equity plan – non-compliance with section 42 of Employment Equity Act – failure to take into account demographic profile of both regional and national economically active population in setting numerical targets and assessing representivity – Barnard principle – Also applies to African, Coloured and Indian candidates as well as to men, women and people with disabilities – employee may be denied appointment if he or she belongs to a category of persons that is already adequately represented at relevant occupational level – wrong benchmark used to set targets and determine representation – Plan not declared invalid – refused to appoint candidates – unfair discrimination based on race or gender – numerical targets not quotas – refusal to appoint set aside and appropriate relief granted.”

Solidarity v Department of Correctional Services (CCT 78/15) [2016] ZACC 18 (15 July 2016)

Coram: Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Nkabinde J, Nugent AJ, Van der Westhuizen J and Zondo J

See: Affirmative action and demographics: Decision awaited

On appeal from the Labour Appeal Court:

  1. The late delivery of the first to third respondents’ written submissions is condoned.Leave to appeal is granted.
  2. Subject to paragraph 4, the appeal is upheld.
  3. The appeals by Mr PJ Davids, Mr AJ Jonkers and Ms LJ Fortuin are dismissed.
  4. The orders of the Labour Court and Labour Appeal Court are set aside and that of the Labour Court is replaced with the following:

“(a)      The claims by Mr PJ Davids, Mr AJ Jonkers and Ms LJ Fortuin are dismissed.

(b)        The decisions of the Department of Correctional Services not to appoint the rest of the individual applicants to the posts in which they respectively sought to be appointed constituted unfair discrimination and unfair labour practices and are set aside.

(c)        Those individual applicants who had applied for appointment to posts that remain vacant to this day or that are presently vacant even if they had subsequently been filled must be appointed to those posts and be paid remuneration and accorded the benefits attached to those respective posts.

(d)        Those individual applicants who had applied for appointment to posts that were subsequently filled and are presently filled must be paid the remuneration and be accorded the benefits attached to those respective posts.

(e)        The orders in (c) and (d) shall operate with retrospective effect from the date with effect from which the individual applicants would have been appointed to the respective posts had they not been denied appointment.

(f)        There is no order as to costs.”

  1. There is no order as to costs in this Court.

Judgments:

  • Zondo J (majority): [1] to [95]
  • Nugent AJ (minority): [96] to [134]

Heard on:     18 November 2015    Decided on: 15 July 2016

Excerpt from minority judgment

“[133]     Stepping back from the separate grounds upon which I find the Plan to be defective, it seems to me they are all mere symptoms of a fundamental malaise. The passages from judgments of this Court I referred to all recognise that reconciling the redress the Constitution demands with the constitutional protection afforded the dignity of others is profoundly difficult.  That goal is capable of being achieved only by a visionary and textured employment equity plan that incorporates mechanisms enabling thoughtful balance to be brought to a range of interests.  It is only in that way that the constitutional tensions referred to in Barnard are harmonised.  And it is in that way that the Constitution’s demand for a public service that is “broadly representative of the South African people” will be realised.  Ours are a vibrantly diversified people.  It does the cause of transformation no good to render them as ciphers reflected in an arid ratio having no normative content”.