‘Equal law for all’ – Solidarity targets govt in BEE legal challenge

Solidarity announced this week that it has served court summons on President Cyril Ramaphosa, the Department of Employment and Labour, as well as its minister Thulas Nxesi, disputing the constitutionality of the country’s new BEE and transformation laws.

The trade union’s Labour Court bid follows the president signing the Employment Equity Amendment Bill of 2020 into law on 12 April. The labour department anticipates that the new transformation laws will be effective from 1 September 2023.

Solidarity: Contempt of international labour conventions, Constitution

In its court papers, Solidarity states that the latest amendments to the Employment Equity Act do not adhere to international labour conventions. It further argues that by signing off on the amended laws, the government is guilty of being in contempt of such conventions, as well as South Africa’s Constitution.

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New BEE legislation gives minister ‘draconian powers’

• The new Employment Equity Act empowers the labour minister to set employment equity targets for economic sectors and prescribe targets for demographics in companies with more than 50 employees.

“This legislation gives the minister draconian powers regarding race. He can now in specific sectors commit race manipulation at a central level. This is the most radical race legislation in the world,” commented Solidarity CEO Dr Dirk Hermann.

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Legal penalties and fines

• It further obliges employers to present employment equity plans and yearly progress reports on their achievement of set targets.
• The Department of Employment and Labour has indicated that those who fail to comply, will face legal penalties, including fines.
• Companies seeking to do business with the government will also need a certificate of compliance from the department.

Solidarity: Main concerns in court papers

In its court papers, Solidarity raises the following concerns:

• The act entrenches the “categorisation of employees and applicants for employment according to race and reinforces apartheid-era race classification by essentially imposing a quota-based regime”.’
• The act over-empowers the labour minister by enabling him to enforce “top-down quotas, rather than to implement employment equity targets devised by employers after consultation with their workforce”.
• According to the union, these powers essentially undermines the nuanced approach to affirmative action as outlined in the country’s Constitution.
• Solidarity also argues that the law is inconsistent regarding the republic’s responsibilities in terms of international law.

New BEE and transformation laws: No flexibility in targets

Prior to the amendment, the act provided employers with some flexibility in setting their own targets in their employment equity plans.

According to the union, the new act removes this flexibility because the numerical goals set by an employer must now comply with the targets specified by the labour minister.

‘The government is race crazy’

Solidarity further noted that the act’s more aggressive employment equity framework is in contravention of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) under the United Nations (UN).

“The government is race crazy. This law has got nothing to do with equality. It is oppression. There is no need to be patient with the oppressors. We are loading the cannons. We will tackle this insane race law and Eskom’s black empowerment requirements in court before the end of the year and will appear before the United Nations,” Herman added.

International process could be big breakthrough

Solidarity revealed that it reported the government in terms of Convention 111 of the International Labour Organisation (ILO) in Genève, Switzerland, for what the union calls “race madness”. The ILO is an agent of the United Nations (UN).

“This will be a big breakthrough of enormous symbolic value and it will be the first time since 1994 that the government is subjected to an international process,” Herman concluded.

Take a look at the court papers HERE.