There seems to be no dispute that the plan clearly satisfies the first two legs of the constitutional test that a remedial measure must meet to qualify under s9(2) of the Constitution, as laid down in Van Heerden. The only issue is whether it also met the third leg, namely whether the plan promoted the achievement of equality. The LAC identified this as the most difficult part of the test, which entails determining if the plan does 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. In Correctional Services the equity plan under consideration did satisfy the third requirement because of the existence of a deviation policy in the equity plan.
The third leg of the test is intimately bound up with the discussion of a deviation policy, which is dealt with below.
It is clear from the provisions of section 42(a)(i) of the EEA and the regulations discussed that the intention of the EEA was that the comparator against which underrepresentation would be measured should be the ‘relevant’ national and provincial economically active population. The first point to note is that it is perfectly legitimate to have regard to national demographics in terms of the EEA and s 195 of the Constitution, but it is not sufficient to simply rely on national census figures of the general population for the purposes of the EEA. Rather, it is the economically active portion of the population against which the composition of the workforce must be compared. In so far as it is the economically active population that is under consideration, both the national and regional economically active population figures must be considered in terms of s 42(1)(a)(i). Plainly, in relying only on the national population census estimates, SAPS plan did not consider either of these standards in identifying the numerical targets in its plan. At least in these respects, the plan does not comply with the EEA.
In relation to the constitutional injunction that the public service must be broadly representative of the population, that imperative is perfectly consistent with a public service whose provincial racial profile matches that of the population in each province. There is no sense in which national demographic representation is in conflict with regional demographic representation: a nationally representative workforce that is also regionally representative, will fit the varying geographic racial contours of the population much more closely than one which is not.
Is it permissible to identify numeric targets for subcategories of the designated group of ‘black people’? The relevant definitions are contained in s 1 of the EEA and state:
“'designated groups' means black people, women and people with disabilities;…
One of the purposes of the EEA is “… to
achieve equity in the workplace by …implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workforce.”26 The applicants effectively argue that the designated group of ‘black people’ is indivisible and whenever targets are set for the advancement of members of that group the targets should relate to the group as a whole and not subcategories thereof. In my view, there is an irreconcilable conflict between this argument and the argument that regional demographics are a necessary and relevant standard when setting numerical targets. Part of the argument in favour of the use of regional demographics is the uneven distribution of subcategories of black people in provincial populations and that a failure to recognise this could result in disproportionately advancing the interests of one category of racially disadvantaged persons at the expense of other categories of black people resulting in a provincial workforce composition that is out of kilter with the racial composition of the province.
In the concurring three-judge27minority judgement in Barnard, the following observations were made which are pertinent in this regard:
“[88] In addition, the Act aims to advance several different 'designated groups'. The Act defines 'designated groups' to mean 'black people, women and people with disabilities', and 'black people', in turn, encompasses black Africans as well as persons previously designated coloured and Indian. Employers 'must' implement affirmative action measures that benefit people from all designated groups. So no affirmative action decision is consistent with the purpose of the Act unless it considers the advancement of each of the different categories of persons designated by the Act. A decision that redresses racial disadvantage but grossly aggravates gender disadvantage, for example, might be impermissible, as might a decision that advances only one disadvantaged racial group while limiting the others.”28
(references omitted).
I believe it accords with the view expressed in the latter part of the quotation above not to interpret the use of the term ‘black people’ in the EEA as being intended to confine the implementation of affirmative measures to members of that group on the basis that they are part of an homogenous group. Rather, I understand the EEA’s description of the term as a ‘generic’ one was simply intended to emphasise the common distinguishing characteristic of all members of that group, namely that they are members of different racial groups who suffered gross forms of discrimination under apartheid because they were not white, which place them at a historical disadvantage relative to white persons. It is the historic racial character of their disadvantage, which distinguishes them from members of the two other designated groups of disadvantaged persons who are identified by reason of their sex or disability. Thus the term ‘black people’ is simply a convenient rubric to describe all those whose disadvantage stems from their racial designation under apartheid. It was not intended to avoid recognition of the varied racial composition of that group.
Moreover, a failure to recognize the need for disaggregation can have perverse consequences, already alluded to above. For example, the advancement of a single person falling with the category of black people would enhance the representivity of black persons overall, but depending on which racial subcategory that person came from, might exacerbate the relative under-representation of African, coloured or Indian persons in that level of the workforce. Numeric targets relating to the different racial subdivisions of the group will reduce the likelihood of such an outcome. In the result, I do not think there is merit in attacking the plan on the basis that the use of numerical targets of subcategories of black persons is invalid in terms of the EEA.
