Did the human rights commission overstep its mandate in its report on the Employment Equity Act?
The commission for employment equity believes that it did, and has vowed to take the report – which found that the definition of designated groups as contained in the Equity Act could give rise to new imbalances in the labour market – on review.
Trade union Solidarity was at the Labour Court in Johannesburg on Wednesday morning to get the government to amend the Employment Equity Act by implementing recommendations made by the human rights commission’s equality report.
The commission’s equality report, titled Achieving substantive economic equality through rights-based radical socioeconomic transformation in South Africa 2017/2018, found that the definition of designated groups as contained in the Equity Act, and the current system of disaggregation of data, could give rise to new imbalances in the labour market.
The report said that for affirmative action to achieve substantive equality and a society based on non-racialism and non-sexism, affirmative action measures must be targeted at groups and individuals who are subject to unfair discrimination.
The human rights council’s report warned that decisions based on insufficiently disaggregated data fail to target persons or categories of persons who have been disadvantaged by unfair discrimination, as required by the three-pronged test for affirmative action.
“Without first taking the characteristics of groups into account, varying degrees of disadvantage and the possible intersectionality of multiple forms of discrimination (based on race, ethnicity, gender or social origin) faced by members of vaguely categorised groups, cannot be identified,” the commission warns in the report.
Based on these findings the report recommended that the act be amended to target more nuanced groups based on need and take into account social and economic indicators.
Solidarity said that implementing the recommendations in the report would signal the end of affirmative action in its current form.
Solidarity’s chief executive, Dirk Hermann, said that government didn’t set aside the report’s findings and had not taken the report on review and thus government is bound by the report, its findings and recommendations.
“For as long as the findings and recommendations are not legally challenged, those findings and recommendations stand,” Hermann said.
Hermann said that the government had six months to challenge the report which was released more than a year ago.
“A year and a half has since gone by and they have thus forfeited their right to challenge the report,” Hermann said.
However, outside the court Tabea Kabinde, chairperson for the commission for employment equity, said that the government would take the report on review.
In court, representatives of the labour department and the commission for employment equity argued that the human rights commission didn’t have a legal standing to declare any statute as unconstitutional.
Kabinde said that the commission was overstepping its mandate.
“The report is confusing and has a lot of broad, overarching statements,” Kabinde said.
Solidary said it would oppose the review.
Judge Andre van Niekerk reserved judgment. Both parties have to make supplementary arguments by October 2 and the matter will be back in court on October 8.