What is being tried is the ideology of absolute race demographic representivity

Although this is indeed the main issue of concern, the case goes beyond that and will have far-reaching consequences for the way in which employers implement affirmative action.

In Barnard the Constitutional Court declined to give proper meaning to what the prohibition of quotas entails, an aspect which will be a central issue in this dispute too. Further to this, clarity is needed on the proper standard of judicial review the courts should apply when adjudicating cases of unfair discrimination resulting from the implementation of affirmative action measures. What does this mean?

The court can either adopt a rationality test, which is mostly concerned with whether the affirmative action measures are rationally connected to the goal it seeks to achieve, or the court can rely on a fairness test, which concerns itself more with the impact the affirmative action measures have on the specific individual or individuals. The effect national race demographics will have on the coloured community, in particular, a community that makes up more than fifty percent of the economically active population in the Western Cape, has been widely publicised. However, this case will not only have an impact on their right to reside and work in the province of their origin and preference but on all other minority groups such as Indians in KwaZulu-Natal.

The DCS and government are adamant to transform the race composition of all provinces so as to directly reflect the national race demographics of the country, which is neither the objective of our Constitution nor of the Employment Equity Act. Should they succeed in this objective, it will mean that coloured people, specifically, will have to leave the Western Cape and their families to relocate to a province where they are underrepresented if they wish to progress in their careers.


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