Draft Employment Equity Regulations are unconstitutional, and threaten jobs – IRR

The Department of Employment and Labour’s Draft Employment Equity Regulations are inconsistent with the Constitution, and would lead to job losses, if implemented, says the Institute of Race Relations (IRR)

These are the key points in the IRR’s submission to the department.

The draft regulations are inconsistent with Section 1 of the Constitution, which expressly identifies “non-racialism” as a core value on which the democratic state “is founded”. The draft regulations require employers to identify their employees by race and then to apply “preferential treatment” to those identified as “black”, i.e., as “African, Coloured, or Indian”.

Under apartheid, the Population Registration Act of 1950 earned justified and widespread public outrage for requiring all South Africans to be classified into the similar broad categories of “African”, “Coloured”, “Indian” and “White”.

Second, the draft regulations are inconsistent with Section 9 of the Constitution (the equality clause), which states that “everyone is equal before the law and has the right to equal protection and benefit of the law”. Section 9 also prohibits unfair discrimination, whether by the state or private persons on racial (and other listed) grounds.

Third, the draft regulations are inconsistent with Section 195 of the Constitution, which sets out the “basic values and principles governing public administration” in South Africa. This section calls, among other things, for a public administration that is “broadly representative of the South African people”. However, it also makes it clear that this objective cannot trump a host of other important needs.

Section 195 provides that employment and personnel management practices in state entities must be “based on ability, objectivity, and fairness”, as well as “the need to redress the imbalances of the past”. In addition, public administration must “promote the efficient, economic, and effective use of resources”, encourage “accountability” and “transparency”, and ensure that “people’s needs are responded to” by a public service that is “development-oriented”.

Contrary to what Section 195 requires, the public service is now increasingly dysfunctional. It is largely unable to meet people’s needs or maintain a “development-oriented” focus. The Employment Equity Amendment Act, and the draft regulations formulated to achieve its objectives, will worsen this situation because they centralise the setting of future racial targets in the office of the minister. This will impose a top-down process on all state entities, including SOEs, in which significant skills shortages and other relevant factors will continue to be brushed aside. The draft regulations will thus result in a further erosion of state delivery. This will exacerbate what is already a clear conflict between “equity” requirements and outcomes and what Section 195 demands.

Fourth, the draft regulations are inconsistent with Section 217 of the Constitution because businesses that fail to comply with the minister’s racial targets (or to justify their failure to do so on reasonable grounds) will be barred from concluding agreements for the supply of goods and services with all organs of state. In addition, companies which already have contracts with state entities risk having those agreements cancelled for non-compliance with the Amendment Act and the draft regulations. The Amendment Act and the draft regulations will significantly alter the procurement rules applicable to state entities.

Said IRR Campaign Manager Mlondi Mdluli: “Minister Thulas Nxesi’s Draft Employment Equity Regulations are unconstitutional. They are part of the government’s campaign to socially engineer society (as the IRR has warned for many years). South Africans must reject this today just as they did in the dark days of apartheid. The IRR has already indicated that it will be heading to court to fight the government’s recent implementation of more aggressive race-based polices.”

Media contacts: Mlondi Mdluli, IRR Campaign Manager – 071 148 2971; mlondi@irr.org.za

Marius Roodt, IRR Head of Campaigns – 082 799 7035; marius@irr.org.za

Media enquiries: Michael Morris Tel: 066 302 1968 Email: michael@irr.org.za

Sinalo Thuku, 073 932 8506 Email: sinalo@irr.org.za