A GREAT TRIUMPH PAR EXCELLENCE FOR NON-RACISM IN OUR JURISPRUDENCE Solidarity v Department of Correctional Services 2016 (5) SA 594 (CC)

Abstract

The applicants in this seminal judgment of the Constitutional Court were both Coloured males and females. As such they were denied promotion by the Department of Correctional Services in the Western Cape, a province in which there is a Coloured majority, on the basis that this population group was overrepresented in employment, in terms of the said Department’s national demographics-based 2010 Employment Equity Plan (EE Plan).
Both the Labour Court and the Labour Appeal Court held that the Department’s EE Plan was unlawful because it set numerical employment targets for the different racial groups that were based exclusively on the national demographic profile, without therefore taking into account the regional demographic profile, as it was obligated to do by virtue of section 42(1)(a) of the Employment Equity Act 55 of 1998 (EE Act), as it read at the time.
However, neither of the abovementioned Courts set aside the EE Plan as invalid, nor did they grant the remedies applied for. As a result, the applicants sought in an appeal to the Constitutional Court for appropriate relief.