Judgment reserved in prisons equity case
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Cape Town - Judgement in an appeal against a ruling on employment equity (EE) within correctional services was reserved by the Labour Appeal Court on Thursday.
The court, sitting in the Western Cape High Court in Cape Town, said it would need time to consider the appeal brought by the correctional services department.
The department was appealing a 2013 Labour Court ruling that it should consider both national and regional demographics in recruiting and promoting staff.
Trade union Solidarity had initially approached the court after 10 employees, nine of them coloured, were overlooked for appointment on the basis of affirmative action.
The department defended the plan as sound and constitutionally valid on Thursday. It argued there were degrees of disadvantage among different races under apartheid.
“In order to deal with those who were disadvantaged by apartheid laws, you often have to refer to those who were advantaged. It is part of the context,” said the department's lawyer Marumo Moerane.
Martin Brassey, for Solidarity, argued that the EE plan was inflexible and could not fully rehabilitate past disadvantages.
He said the department's national commissioner could deviate from racial appointment targets. However, this was only in the case of scarce skills or critical positions and not for individual factors such as race or experience.
Judge Dennis Davis said dignity played a role in reaching the goal of a non-racial, non-sexist society.
He said he personally found it offensive and “gut-wrenching” to have to tell coloured people they were not treated as badly as black people, when in fact they had been subjected to all the brutality of apartheid.
Moerane said it was a reality that there were degrees of discrimination.
“I am not sure that takes away the hurt or offence to dignity to those who were unquestionably discriminated against, come what may,” Davis replied.
Brassey argued in reply that blacks and coloureds were generically defined as black people in the EE act.
“The process therefore requires that there will not be this perpetuation of the apartheid structures of coloured and black African, but that we will take black people and evaluate their entitlement, as the act says, generically.”
He said the department could not create “silos based on colour”.
According to Moerane, the plan's rationality was that there was an over-representation of coloureds in the Western Cape.
The Police and Prisons Civil Rights Union (Popcru) delivered arguments as a friend of the court.
Vuyani Ngalwana, for Popcru, pointed the court to a few examples where the department had been flexible in its EE plan in the Western Cape.
Solidarity was cross-appealing the initial Labour Court judgment to the extent that it did not compensate its members who had been discriminated against.
Sapa