The decision of the Constitutional Court (the Court) comes as an appeal against an order of the Labour Appeal Court. The facts of the case briefly are that the employees of the Department, comprising five Coloured women, four Coloured men and white male, had, before 2010, applied for appointment or promotion. Thereafter, they were shortlisted as “strongly preferred” candidates for their respective positions. However, due to race and gender considerations which were said to be “over-represented’’ within the Department, their appointments were declined on the basis that this would have been inconsistent with the Department’s equity plan in terms of the Employment Equity Act (Equity Act). The Labour Court had initially ruled against the Department on the basis that the decision to deny them appointment or promotion continued unfair discrimination and unfair labour practices. On appeal, the Labour Appeal Court agreed that the equity plan did not meet legitimate affirmative action measures, but however refused to grant the employees appointment and promotion on the basis that they had failed to show that even if regional demographics were considered, that they would have still been selected. It is this decision of the Labour Appeal Court that found its way to the Constitutional Court.

In arriving at the decision, the Court made it apparent that designated employers may not make use of rigid quotas in drawing up employment equity plans. Rather, designated employers should employ numerical targets which allow for deviation whenever a need arises. The Court reiterated – from its own judgment previously delivered in the Van Heerden judgment – that any measures to promote the advancement of equality should not impose disproportionate burdens or “constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long term constitutional goal would be threatened”.

The decision clarifies what is desired in order to achieve a transformed workplace – namely the broad representation of the people of South Africa. Transformation in the workplace therefore should consist of inclusive racial groups and both genders being broadly representative.

The decision reiterates the provisions of the Equity Act, flowing from the Constitution, which prohibit unfair discrimination on the basis of gender or race. The Court considered that that the Department had used only national demographics in order to determine the level of representation of the different designated groups. This, despite the fact that the Department was obliged to make use of the demographic profile of both the national and regional economically active population in accordance with the Equity Act. On this basis, the Court found that the Department had acted unlawfully. The Court further rejected the Department’s argument that it is a national department and therefore exempt from complying with the requirement that it consider both national and regional demographics.  Since the Department’s view that Coloured people and women were overrepresented was unlawful, and further that the Department had failed to show that discrimination was rational, it stood to reason that the Department’s refusal to appoint Coloured and women applicants constituted unfair discrimination, which in turn constituted unfair labour practices. As such, the Court ordered that the Coloured and women applicants be appointed to the posts that remained vacant.

The decision reveals a delicate balancing act and the underlying tensions between, on the one hand, the Constitution’s enjoinder to recognise and redress the imbalances of the past, and the commitment to establishing a non-racial, non-sexist and socially inclusive society on the other hand. Further tensions exist too, between the entitlement to equality by an individual, juxtaposed against the equality of society in its entirety. Nonetheless, this decision reveals a Court mindful of these competing interests, and ultimately lends greater understanding to how the right to equality can be claimed.

By Phephelaphi Dube: Director, Centre for Constitutional Rights