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The Constitutional Court in Braamfontein today ruled that the seven employees of the Department of Correctional Services (DCS) must be promoted and remunerated retrospectively. This comes after they had earlier been denied promotion on the grounds of the DCS’s Employment Equity Plan.

The court also upheld and confirmed the labour court and labour appeal court’s ruling according to which the region’s racial demographics must also be taken into account when drafting and applying employment equity plans.

According to Anton van der Bijl, Solidarity’s head of its Centre for Unfair Labour Practices, today’s ruling has permanently changed the implementation of affirmative action in respect of minorities in South Africa. “The verdict does not only mean a landslide victory for the particular applicants, but for every member of a minority group in South Africa. The verdict is moreover a reaffirmation that affirmative action plans have to comply with constitutional principles and that such plans must be subject to a nuanced approach.”

Van der Bijl also said that today’s ruling was a confirmation that all relevant factors, such as the racial demographics of a specific region, among others, should be considered when affirmative action plans were devised and applied. “Given the fact the DCS’s employment equity plan did not take the regional racial demographics into consideration, the plan as such is unlawful. It is thus clear that it is unlawful for any state department to use the national racial demographics as sole measurement in their employment equity plans. This verdict furthermore amounts to a major setback to government policy to implement the national racial demographics everywhere in South Africa. We will take the necessary steps to ensure that this judgement is adhered to,” Van der Bijl said.

This notorious court case against the DCS has already started in 2012, when the trade union consolidated several cases about the DCS’s controversial affirmative action plan. In terms of this plan, the national racial demographics should be reflected at all job levels, despite the profile of the province or region. Coloured South Africans comprise some 51% of the economically active population of the Western Cape – an even greater percentage in many specific regions – while at national level they hardly reach 9% of the total population.


The judgment is attached.

Issued by Solidarity