Solidarity fights DCS case in Constitutional Court

Next week, on 18 November, the trade union Solidarity’s case will be heard in the Constitutional Court. This follows after the Labour Appeal Court ruled in favour of Solidarity on 10 April this year by stipulating that the Department of Correctional Services (DCS) may not only take the national racial demography into account when employees are appointed or promoted. Solidarity took the DCS to court on behalf of ten employees because the department wanted to use the national racial demographics as the only criteria for appointments.

The court, however, did not award individual legal aid to the applicants and indicated that no clear evidence existed that the members would have been appointed in these positions had the DCS used the demographics of the region as guideline. These final two aspects compelled Solidarity to refer the case to the Constitutional Court.

“We do not agree with the court’s viewpoint in this regard as our members have been identified by a panel as the most suitable candidates for the positions concerned. We believe that our members would have been appointed if the DCS had not enforced the national racial demography as criteria. That is the reason why we have approached the Constitutional Court,” said Dirk Groenewald, head of Solidarity’s Centre for Fair Labour Practices.

This prominent court case against the DCS already began in 2012 when the trade union consolidated a number of cases about the DCS’s controversial affirmative action plan. In terms of this plan, the national racial demographics has to be reflected at all job levels, irrespective of the profile of the province or region. Coloured South Africans constitute about 51% of the economically active population of the Western Cape, and in several specific regions this percentage is even higher, while at national level they constitute only about 8,8% of the total population.

Solidarity brought a further court application against the DCS after that department disregarded the court ruling compelling it to take the region’s demographics into consideration when setting employment equity targets. On 9 October this year, Judge Annelie Basson ruled in the Cape Labour Court that the DCS did not comply with the earlier Labour Court ruling. Consequently the National Commissioner, Mr Zach Modise, appeared in the Cape Labour Court on 6 November 2015 to give reasons why he was not in contempt of the initial court ruling.

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