In the matter between Solidarity and the South African Police Service (and others) the Labour Court in Johannesburg held if there was an Employment Equity Plan which amounted to quotas then that would be in breach of the Constitution and the Employment Equity Act. In essence, our Constitution allows for remedial measures but these should not be an end in themselves. These measures to bring back fairness at the workplace were not meant to be punitive nor retaliatory. The Court quoted from the Barnard case as follows “their ultimate goal is to urge us on towards a more equal and fair society that hopefully is non-racial, non-sexist and socially inclusive. We must be careful that the steps taken to promote substantive equality do not unwittingly infringe the dignity of other individuals – especially those who were themselves previously disadvantaged.”
The Court specifically said that we must exclude quotas but we certainly can include targets in our Employment Equity Plans, furthermore, it is clear that the Equity Plans could not make reference to quotas strictly reflecting the national demographic representation of race and sex in the population. Many other factors must be taken into account and in particular the regional demographics.
It is clear that the plan itself should not establish absolute barriers to appointment or promotion.
This case is clear in that our courts have said that we must not engage in social engineering to the disadvantage of other categories of disadvantaged persons.
This is a ground-breaking case and is certainly worth taking note of.