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[2019] ZALCJHB 277
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Solidarity v Minister of Labour and Others (J3092/18) [2019] ZALCJHB 277; [2020] 1 BLLR 79 (LC); (2020) 41 ILJ 273 (LC) (8 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No: J3092/18
In
the matter between:
SOLIDARITY
Applicant
and
THE
MINISTER OF LABOUR
First
respondent
THE
DEPARTMENT OF LABOUR
Second
respondent
DIRECTOR-GENERAL
OF THE DEPARTMENT OF LABOUR
Third
respondent
THE
SOUTH AFRICAN HUMAN RIGHTS COMMISSION
Fourth
respondent
THE
DIRECTOR-GENERAL OF THE DEPARTMENT OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Fifth
respondent
THE
COMMISSION FOR EMPLOYMENT EQUITY
Sixth
respondent
Heard:
18 September 2019
Delivered:
8 October 2019
Summary:
JUDGMENT
VAN NIEKERK.J
Introduction
[1]
On 12 July 2018, the South African Human Rights Commission (SAHRC),
issued a report
entitled ‘Achieving substantive economic
equality through rights-based radical socio-economic transformation
in South Africa’
(the Equality Report). The report evaluates
government’s programme of socio-economic transformation from a
rights-based perspective
and deals, in part, with transformation in
the workplace and the implementation of the Employment Equity Act
[1]
(EEA). The report concludes, amongst other things, that the
definition of ‘designated groups’ in the EEA (broadly,
the categories of persons who are beneficiaries of the affirmative
action measures established by the EEA) is not in compliance
with
constitutional or international law obligations, and recommends that
the EEA be amended to target more nuanced groups on the
basis of
need, and taking into account social and economic indicators.
[2]
[2]
The applicant (Solidarity) relies on the Equality Report to seek an
order declaring
that s 42 of the EEA, read with the definition of
‘designated groups’ in s 1 of the EEA, is
unconstitutional because
read cumulatively, they do not provide for
appropriate classification of designated groups other than on the
basis of race, gender
and disability, and fail to account for
needs-based restitution. In the alternative, Solidarity seeks an
order confirming the findings
and recommendations made in the
Equality Report, in so far as they relate to the EEA.
[3]
When the matter was called, counsel for Solidarity advised the court
that Solidarity
did not intend to pursue the main prayer in the
notice of motion, i.e. the declaration of unconstitutionality. That
prayer would
‘stand over’, and Solidarity would pursue
only the alternative relief of a confirmatory order.
[4]
Solidarity’s decision not to pursue the declaration of
unconstitutionality considerably
narrows the scope of a dispute that
had been canvassed over some 550 pages. Indeed, the dispute is
reduced to the single issue
expressed in only two paragraphs of the
founding affidavit. They read as follows:
53.
In the context of the Public Protector, the Constitutional Court
considered that recommendations
made by a Chapter Nine institution
cannot be disregarded, even if there is supposedly a rational reason
for doing so. We accept
that the recommendations of the SAHRC may be
open to judicial scrutiny, that the power is not unfettered and that
the legal effect
of the recommendations is a matter for
interpretation aided by context, nature and language. But for as long
as the findings and
recommendations are not legal (
sic
)
challenged (for example, by way of the review), these findings and
recommendations stand….
54.
In the present case, the SAHRC has found that the EEA is not
compliant with the constitution
and international obligations. That
is a finding, and in consequence the SAHRC has recommended that steps
be taken to amend the
EEA. Solidarity would argue that these findings
and recommendations have an effect in law. The conclusion that must
be reached
is that there is a legally binding finding of
constitutional non-compliance or non-compliance with international
law that is currently
in existence.
[5]
In other words, in these proceedings, Solidarity seeks only to have
the findings and
recommendations of the Equality Report given legal
recognition and effect, at least until any reviewing court sets them
aside.
That being so, the court is not concerned with a direct
challenge to the constitutionality of s 42 of the EEA (read with the
definition
of a ‘designated group’), and it is not
concerned with a constitutional challenge to affirmative action in
general.
[3]
At most, the
constitutional challenge to s 42 is indirect, riding as it does on
the coat-tails of the SAHRC’s findings and
recommendations, as
they are expressed in the Equality Report.
The
Right to Equality and the EEA
[6]
The findings and recommendations contained in the Equality Report are
best understood
with a prior appreciation of the nature of the right
to equality as it is expressed in s 9 of the Constitution. Section 9
reads
as follows:
(1) Everyone is
equal before the law and has the right to equal protection and
benefit of the law.
(2) Equality
includes the fill and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative
and other measures
designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may
be taken.
[7]
Section 9 goes beyond conferring a right to formal equality; it
requires restitutionary
measures by the state to achieve substantive
equality for all South Africans. The key role of restitutionary or
remedial measures
in the transformation required by the Constitution
was recently affirmed by the Constitutional Court:
[4]
Restitutionary
measures are a vital component of our transformative constitutional
order. The drafters of our Constitution were
alive to the fact that
the abolition of discriminatory laws and the guarantee of equal
rights alone would not lead to an egalitarian
society envisaged in
the Constitution. Something more had to be done in order to dismantle
the injustices and inequalities arising
from the apartheid legal
order. Hence the Bill of Rights, which is a cornerstone of our
democratic order, includes the remedial
measures.
[8]
The EEA gives expression to the constitutional right to equality, in
a substantive
sense, in South African workplaces. The EEA’s
stated purpose is to eliminate unfair discrimination through the
promotion
of equal opportunity and fair treatment in employment, and
to implement affirmative action measures to redress the disadvantages
experienced by designated groups, in order to ensure their equitable
representation in all occupational categories and levels in
the
workforce.
[5]
Affirmative action
measures are designed to ensure that ‘suitably qualified people
from designated groups have equal employment
opportunities and are
equitably represented in all occupational levels in the workforce of
the employer’.
[6]
This
objective is to be achieved primarily by the implementation of
employment equity plans, which must achieve ‘reasonable
progress towards employment equity in that employer’s
workforce’.
[7]
[9]
Neither party disputes these basic principles, nor does the SAHRC.
What they disagree
on is how the beneficiaries of restitutionary
measures should be determined. Section 1 of the EEA defines
designated groups to
mean ‘black people, women and people with
disabilities’ who are South African citizens by birth or
descent, or who
became citizens before 27 April 1994 or thereafter,
but who would have been entitled to acquire citizenship by
naturalisation prior
to that date but who were precluded by apartheid
policies’. The term ‘black people’ is defined
generically to
mean ‘Africans, Coloureds and Indians.’
[8]
[10]
Section 42 provides that when determining whether a designated
employer
[9]
is complying with
its obligations under the EEA, a person applying the Act must take
into account various factors, including the
extent to which suitably
qualified people from and amongst the different designated groups are
equitably represented in each occupational
category and level in the
workforce. These factors are listed in s 15 of the EEA. In terms of s
42, various other factors may be
taken into account, including the
‘demographic profile of the national and regional economically
active population…’.
The
Equality Report
[11]
The Equality Report is comprehensive and wide-ranging. The report
assesses how affirmative action
can be implemented in various
contexts to facilitate radical social-economic transformation to
achieve the end of greater substantive
equality. Without
intending to do any disrespect to the breadth of the study, for
present purposes, it is sufficient to record
that the Equality Report
notes that the transformation of the labour market through the
implementation of the EEA has been unacceptably
slow, and given that
economic inequality between and within population groups in South
Africa has worsened. In particular, poverty
and inequality continue
to manifest on racial and gender lines.
[12]
One of the questions that the Equality Report seeks to answer is
whether the EEA itself, or its
implementation, is leading to new
imbalances.
[10]
It is in this
context that the Report seeks to evaluate the EEA against
constitutional and international law obligations, the latter
established by the United Nations International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD).
[11]
[13]
The Equality Report finds:
As
noted above, the EEA classifies beneficiaries of affirmative
action according to ‘designated groups’ that correspond
to the racial classification system used by apartheid government,
while expanding its scope to additionally include women and persons
with disabilities. Whereas the population is provided with the
opportunity to self-classify when statistical data is gathered for
the population census, self-classification does not translate into
legislation that provides for special measures. Indigenous peoples,
those whose ethnic descent may be from mixed-race marriages, and
linguistic or tribal minorities within the designated groups are
therefore not accommodated by the EEA.
Furthermore,
socio-economic data is similarly disaggregated according to the
apartheid era classification system of population groups.
The CERD
has on two occasions requested the government to provide more
exhaustive statistical demographic data that includes social
and
economic indicators, and furthermore accounts for indigenous groups
and noncitizens…
Government’s
approach in this regard, as reflected in the EEA, is problematic for
several reasons. Affirmative action measures
must be targeted at
groups and individuals who are subject to unfair discrimination, in
order to eventually achieve substantive
equality and a society based
on non-racialism and non-sexism. 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.
Moreover, the current classificatory system and disaggregation of
data fails to acknowledge
multiple forms of discrimination faced
within
population
groups. For example, given that inequality between members of the
Black African population group is higher than in any
other racial
group, it is foreseeable that current practice might result in a job
opportunity for a wealthy Black man of Zulu origin,
rather than a
poor Black woman from an ethnic minority. Spec
[12]
ial
measures accordingly do not account for socio-economic differences
within broadly defined population groups. The CERD’s
requirement for the implementation of special measures on the basis
of need, and a related ‘realistic appraisal of the current
situation of the individuals and communities’ concerned, cannot
be met without a more nuanced disaggregation of data.
Further:
Where
special measures may result in new imbalances or exacerbate current
inequality viewed in the labour context more broadly,
it is doubtful
that such measures are ‘designed’ to advance people in
need of remedial measures. Worryingly, it can
lead to perverse
consequences and ‘token’ affirmative action where
minority status, or new patterns of discrimination
and equality
within designated groups, is not properly considered.
[14]
The Equality Report concludes:
It
is therefore found that the EEA’s definition of ‘designated
groups’ and South Africa’s system of data
disaggregation
are not in compliance with constitutional and international law
obligations imposed by the ICERD read in conjunction
with the CERD’s
general recommendations and concluding observations. Governments
failure to measure the impact of various
affirmative action measures
on the basis of need and disaggregated data, especially the extent to
which such measures advance indigenous
peoples and people with
disabilities, likewise violates the obligations imposed by the ICERD
and the CERD.
(i) It is
accordingly recommended that the EEA be amended to target more
nuanced groups on the basis of need, and taking into
account social
and economic indicators…
(ii)
It is
further found that the EEA and its implementation, as well as the
design of special measures, are currently misaligned to
the
constitutional objective of achieving substantive equality…
[13]
[15]
To be clear, the Equality Report suggests that socio-economic needs
be considered within designated,
vulnerable groups. In other words,
affirmative action should continue to be implemented on the basis of
race, gender and disability,
given the persistence of current
patterns of economic inequality. However, special measures should be
targeted at vulnerable groups
within apartheid-era classifications so
as to recognise multiple forms of disadvantage that they continue to
experience. In this
context, the report recommends that the EEA be
amended to target more nuanced groups on the basis of need, taking
into account
social and economic indicators.
What
is the Equality Report’s status?
[16]
Central to the dispute between the parties is the status of the
Equality Report. As foreshadowed
by the founding affidavit,
Solidarity accepts that the recommendation of the SAHRC may be open
to judicial scrutiny and that the
legal effect of any recommendations
are a matter of interpretation aided by context, nature and language.
But for so long as any
findings and recommendations are not legally
challenged (for example, by way of judicial review), Solidarity
submits that the findings
and recommendations made in the Equality
Report stand, and are capable of confirmation by this court.
[17]
Solidarity relies on a what has come to be described as the
‘
Oudekraal
principle’
[14]
which
suggests that invalid administrative action may not simply be
ignored, and may continue to have legal consequences until
set aside
by a court.
[15]
Put another
way, Solidarity submits that the Equality Report has binding effect
because of its factual existence. To the extent
then that the SAHRC,
as a Chapter Nine institution, has issued recommendations that
require action on the part of the other respondents,
that action must
be taken.
[18]
The
Oudekraal
principle has been confirmed and applied by the
Constitutional Court in
MEC for Health EC v Kirland Investments
2014 (3) SA 481
(CC),
Merafong City v AngloGold Ashanti
2017 (2) SA 211
(CC), and
Department of Transport v Tasima
2017
(2) SA 622
(CC). In the latter judgment, the Constitutional Court
referred to
Economic Freedom Fighters v Speaker, National Assembly
and Others
2016 (3) SA 580
(CC) (the Nkandla judgment), where
Mogoeng CJ said:
No decision grounded on
the constitutional law may be disregarded without recourse to a court
of law. To do otherwise would “amount
to a licence to
self-help”. Whether the public protector’s decisions
amount to administrative action or not, the disregard
for remedial
action by those adversely affected by it, amounts to taking the law
into their own hands and is illegal. No binding
and constitutionally
or statutorily sourced decision may be disregarded willy-nilly. It
has legal consequences and must be complied
with all acted upon. To
achieve the opposite outcome lawfully, an order of court would have
to be obtained.
[16]
In other words,
Solidarity is not concerned with the question whether the Equality
Report is open to challenge – rather, it
asserts that the
report is not open to be ignored.
[19]
The first, second, third and sixth respondents, who oppose the
application,
[17]
contend that
there is nothing in the Constitution or the SAHRC Act
[18]
that empowers the SAHRC to make findings that are binding on
government and that the Equality Report is no more than a research
report, whose findings and recommendations are intended to do no more
than initiate a conversation on critical issues relating
to the right
to equality and the imperatives of socio-economic transformation. The
SAHRC takes a similar view of its report.
Analysis
[20]
It seems to me that the status of the Equality Report stands to be
determined first by reference
to the Constitution and the enabling
legislation and secondly, by what the report, on the face of it and
properly construed, purports
to be.
[21]
Turning first to the applicable legislation, the SAHRC is established
by s 184 of the Constitution
as one of the ‘Chapter Nine’
institutions established to support constitutional democracy. Section
184 reads as follows:
(1) The South
African Human Rights Commission must –
(a) promote respect
for human rights and a culture of human rights;
(b) promote the
protection, development and attainment of human rights; and
(c) monitor
and assess the observance of human rights in the Republic.
(2) The South
African Human Rights Commission has the powers, as regulated by
national legislation, necessary to perform its
functions, including
the power-
(a) to investigate
and to report on the observance of human rights;
(b) to take steps
to secure appropriate redress where human rights have been violated;
(c) to carry
out research; and
(d) to educate.
(3) Each year, the
South African Human Rights Commission must require relevant organs of
state to provide the Commission with
information on the measures that
they have taken towards the realisation of the rights in the Bill of
Rights concerning housing,
healthcare, food, water, social security,
education and the environment.
(4) The South
African Human Rights Commission has the additional powers and
functions prescribed by national legislation.
[22]
The national legislation referred to in s 184 (2) and (4) is the
South African Human Rights Commission
Act, 40 of 2013 (the SAHRC
Act). Section 13 of that Act confers additional powers and functions
on the SAHRC in order to achieve
its objects. Amongst other things,
the SAHRC is competent and obliged to make recommendations to organs
of state at all levels
of government where it considers action
advisable for the adoption of progressive measures for the promotion
of human rights to
be taken,
[19]
to undertake studies for reporting on or relating to human rights as
it considers advisable
,
and to
request any organ of state to supply it with information on any
legislative or executive measures adopted by its relating
to human
rights. In addition, the SAHRC is obliged to develop conduct or
manage information and education programs to foster public
understanding and awareness of human rights, to review government
policies relating to human rights and make recommendations on
those
policies,
[20]
and to monitor
the implementation of and compliance with international and regional
conventions and treaties relating to the objects
of the Commission.
[23]
To the extent that Solidarity poses an indirect challenge to the
constitutionality of s 42 on
the basis of what it contends to be a
binding direction addressed to the fifth respondent (the Department
of Justice and Constitutional
Development) to the effect that the EEA
should be amended, the first observation to make is that the SAHRC
has no power to order
legislative amendments. Only a superior court
is empowered to pronounce on the validity of an Act of Parliament.
Chapter Nine institutions
have no power to direct parliament or any
member of the executive to effect legislative amendments.
[21]
The SAHRC may advise and recommend that legislation be amended, but
it may not direct.
[24]
Secondly, the SAHRC’s own view of the status of its report is
significant. The SAHRC records
that the Equality Report emanates from
the SAHRC’s constitutional monitoring and assessment function
(in terms of s 184(1)(b)
of the Constitution) as opposed its
protection function (s 184(1)(b). Further, in compiling the Equality
Report, the SAHRC utilised
its power to carry out research in terms
of s 184(2)(c) of the Constitution, a power to be distinguished from
the power to investigate
and report on the observance of human rights
in terms of s 184(2)(a) of the Constitution, and to take steps to
secure appropriate
redress for the violation of human rights in terms
of s 184(2)(b). This is a significant distinction – the SAHRC
has powers
to secure appropriate redress where there has been a
violation of human rights, in which case it must conduct an
investigation
to engage the SAHRC’s protection mandate. The
SAHRC makes clear that the Equality Report emanates from its
constitutional
monitoring and assessment function, a function that is
not shared with the Public Protector. In compiling the report,
the
SAHRC did not conduct any investigation into any alleged
violation of human rights; it utilised its power to carry out
research
in terms of s 184(1)(c) of the Constitution.
[25]
Recommendations made in the context of research conducted in terms of
the SAHRC’s monitoring
and assessment mandate are by definition
advisory in nature, a position supported by the statutory provisions
empowering the SAHRC
to make recommendations that it deems
‘advisable’ for the promotion of human rights.
[22]
When the SAHRC exercises its monitoring and assessment powers, it is
not issuing ‘remedial action’ or recommending
‘appropriate relief’ in the same manner as the Public
Protector. The SAHRC is simply fulfilling its education and research
functions. The SAHRC accepts that it does not enjoy the power to make
any declarations of constitutional invalidity, nor did it
purport to
exercise any such power in respect of the EEA.
[26]
Solidarity urged me to disregard the SAHRC’s classification of
the Equality Report as one
issued in terms of its monitoring and
assessment functions, and to read the report as one issued in terms
of the SAHRC’s
powers to take steps to secure appropriate
redress where human rights have been violated (i.e. in terms of s 184
(2) (b) of the
Constitution). In my view, there is no merit in this
submission. First, the best indicator of the SAHRC’s intention
in issuing
the Equality Report is its own
ipse dixit
. The
SAHRC confirms that in compiling the Report, it utilised its power to
carry out research (in terms of s 184 (2)(c) of the
Constitution),
within its constitutional monitoring and assessment function.
Secondly, the manner in which the Equality Report
was compiled is not
insignificant. The report was prepared by means of desktop research.
At the time that the present application
was lodged, the SAHRC had
not consulted with affected parties, including the Department of
Labour, the Director-General of Labour,
and the Commission for
Employment Equity. The fact that none of the primary legal custodians
of the EEA were informed or consulted
by the SAHRC during the
preparation of the Equality Report suggests that the report is not
the product of any investigation conducted
by the SAHRC, and that it
is intended to be educative and advisory only. Finally, the language
of the Report itself is cast in
terms that do not suggest that the
findings and recommendations are binding, or that they were issued
under the SAHRC’s powers
to take steps to secure redress where
human rights have been violated.
[27]
In summary: There is no statutory or other regulatory provision that
renders the Equality Report
binding on government or any other party.
The SAHRC itself does not intend the Report to be binding; it is a
research report intended
to contribute to the public discourse and to
provide advice and guidance to government in fulfilling its
constitutional obligations.
Since the Equality Report is not binding
on government or any other party, it follows that there is no basis
on which this court
is empowered to confirm or otherwise enforce the
report’s findings and recommendations for the purpose sought by
Solidarity,
or for any other purpose.
[28]
Solidarity has not sought to postpone that part of the application in
which it seeks to declare
s 42 of the EEA unconstitutional– the
court (and the respondents) were simply advised on the morning of the
hearing that
the main prayer would ‘stand over’ and that
only the alternative relief sought would be pursued. In these
circumstances,
the application must stand or fall in its entirety.
For the above reasons, the application stands to be dismissed.
Costs
[29]
The respondents accepted that the nature of these proceedings, being
a constitutional challenge
brought in circumstances where there is no
frivolous or vexatious intent on the part of the applicant, triggered
the convention
that costs ought not ordinarily to be granted. For the
purposes of s162 of the LRA
[23]
,
which confers a discretion on the court to make orders for costs
according to the requirements of the law and fairness, those
interests are best satisfied by the same result. I do not intend
therefore to make any order as to costs.
[30]
I make the following order:
Order:
1.
The application is dismissed.
____________________
André
van Niekerk
Judge
Appearances:
For
the applicant: Adv.
G Hulley SC, with him
Adv. D Groenewald
Instructed
by:
Serfontein,
Viljoen and Swart Attorneys
For
the first, second, third
and
sixth respondents: Adv. T
Ngcukaitobi SC, with him Adv. L Zikalala and Adv. T Ramogale,
Instructed
by:
The
state attorney.
[1]
Act
55 of 1998.
[2]
Equality
Report at paragraph 6.1A.
[3]
In
its replying affidavit, Solidarity avers that the application is not
concerned with the constitutionality of affirmative action,
rather
than the question whether s 42 of the EEA read with the definition
of ‘designated groups’ pass constitutional
muster.
[4]
See:
Minister
of Constitutional Development and Another v South African
Restructuring and Insolvency Practitioners Association and
others
2018
(5) SA 349
(CC) at paragraph 1. The conception of substantive (as
opposed to formal) equality has a long history in our constitutional
jurisprudence.
See, for example,
Azapo
v President of the Republic of South Africa
1996
(4) SA 672
(CC),
SA
Police Service v Solidarity obo Barnard
2014 (6) SA 123
(CC),
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
1999 (1) SA 6
(CC),
Minister
of Finance v Van Heerden
2004 (6) SA 121 (CC).
[5]
Section
2 of the EEA.
[6]
Section
15(1) of the EEA.
[7]
Section
20(1).
[8]
Section
1 of the EEA.
[9]
Those
employers who are subject to Chapter III of the EEA.
[10]
Equality
Report at p 33.
[11]
The
ICERD was adopted by the UN’s General Assembly on 21 December
1965 and entered into force on 4 January 1969. South Africa
is a
signatory to the ICERD, and thus bound by the reporting obligations
established by the Convention. Article 1 of the ICERD
defines racial
discrimination as ‘any distinction, exclusion, restriction or
preference based on race, colour, descent,
or national or ethnic
origin…
[12]
Equality
Report at pp 34-35, footnotes omitted.
[13]
Equality
Report at p 39.
[14]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004
(6) SA 222 (SCA).
[15]
See
MEC
for Health, EC v Kirland Investments
2014
(3) SA 481
(CC) at paragraph 101.
[16]
At
paragraph 74 of the judgment.
[17]
The
fourth respondent, the SAHRC, abides by the decision of the court.
[18]
Act
40 of 2013.
[19]
Section
13 (1)(a) of the SAHRC Act.
[20]
Section
13(1)(b) of the Constitution.
[21]
See
South
African Reserve Bank v Public Protector and Others
2017 (6) SA 198
(GP), where Murphy J said at paragraphs 42 and 43 of
the judgment that a report by the Public Protector that instructed
the chair
of a parliamentary portfolio committee to take amend the
Constitution ‘trenches unconstitutionally and irrationally on
Parliament’s exclusive authority’:
The Public Protector is
a creature of the Constitution, her remedial powers are derived from
the constitution, and hence she operates
under the Constitution and
not over it. She has no power to order an amendment of the
Constitution. Section 74 of the Constitution
prescribes the
conditions for its own amendment.
[22]
Section
13 (1)(a)(i) of the SAHRC Act.
[23]
Act
66 of 1995.