The Constitutional Court has received high praise in three media articles examining its landmark judgment in relation to employment equity and labour relations delivered last week, notes Daily News. The Serjeant at the Bar columnist, in an analysis in the Mail & Guardian, says the court again proved to be a fine custodian of our fundamental constitutional promises when it suggested that to tell coloured people in the Western and Northern Cape that they can only fill 8% of the workforce – even though they constitute more than 40% of the population – is a travesty of the Constitution’s commitment to transformation.

The writer notes that in Solidarity v Department of Correctional Services, two judgmen ts were delivered, both of which supported the conclusion of the two earlier courts that the department’s employment equity (EE) plan breached the Constitution, and both of which upheld the appeal that the applicants had to be placed in the advertised posts or they were to be granted compensation. In what the writer calls ‘a somewhat confusing majority judgment’, Justice Ray Zondo held that, ‘when the department refused to appoint the coloured and female individual applicants on the basis that they belonged to groups that were already over-represented within the occupational levels to which they wanted to be appointed, the over-representation of those groups had been determined on a wrong benchmark’. The writer says a significant part of the confusion in this judgment rests on the ‘tortuous reasoning’ to arrive at the finding that the EE plan did not introduce a rigid quota system. The writer adds 'a far more coherent' – and hence comprehensible – approach was adopted by Acting Justice Robert Nugent in his concurring judgment. Nugent found that the provision that empowered the Correctional Services Commissioner to deviate from the numerical ‘targets’ was a very restrictive provision dealing with specific skills that may be required.

Full analysis in the Mail & Guardian  

The judgment is a singular victory for non-racism, enshrined in our Constitution, says George Devenish, emeritus professor at UKZN and one of the scholars who assisted in drafting the interim Constitution in 1993. In an analysis on the BDlive site, he writes ‘the judgment is a triumph for diversity and the protection of vulnerable minorities, be they coloured, Indian or white groups, against domination by Africans. Such domination would be of a racial nature, and would be anathema to the non-racism espoused in the Constitution’. The writer notes that from time to time such racial domination has been advocated by certain important persons. So, for instance, Jimmy Manyi, a prominent ANC spokesperson, declared in a hig hly-publicised and notorious comment in 2011, that coloured people are over-concentrated in the Western Cape and need to move to other provinces to find jobs elsewhere and that in KZN Indians are bargaining their way to the top. These statements were patently racist at the time and make inroads into our commitment as a nation to non-racialism. They are now also unconstitutional by virtue of this judgment. Once again the Constitutional Court has demonstrated that it is in world class and has delivered a brilliant judgment that promotes democracy in no uncertain terms in SA.

Full analysis on the BDlive site  

A different perspective is offered by constitutional law expert Pierre de Vos, in an analysis on his Constitutionally Speaking blog. He describes the majority judgment as 'a text of its time', saying it 'goes further than previous Constitutional Court judgments in insulating redress measures from constitutional attack'. The judgment would make it difficult to invalidate employment equity measures unless they allow for the appointment of unqualified candidates or are implemented in a corrupt or nepotistic manner. In this sense, it may well be far less of a victory for the litigants than they might at first have thought,’ De Vos says. He argues that the rigid adherence to national demographics may also have unintended conse quences for each of the four apartheid designated racial categories used for employment equity purposes, because the majority of Constitutional Court justices ‘made an interesting and potentially far-reaching determination regarding the permissible winners and loser of redress measures. It held that because workplace representivity was the aim of employment equity, an employer would not only be permitted to refuse to appoint a ‘white’ person to a job but would also be permitted to ‘refuse to appoint an African person, coloured person or Indian person on the basis that African people or coloured people or Indian people, as the case may be, are already over-represented or adequately represented in the occupational level to which the particular African, Coloured or Indian candidate seeks appointment.’ De Vos says this means that not only people classified under apartheid as ‘white’ could be refused employment because they are over-repre sented. ‘Black candidates, whether they are African people, col oured people or Indian people are also subject to the’ same principle.

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

Full analysis on the Constitutionally Speaking blog