Legal battle scrutinises South Africa’s affirmative action policies

Written by Yazeed Kamaldien
Trade union Solidarity’s campaign challenging affirmative action policies in the Western Cape have been dismissed as “falsehearted” by the provincial ANC.
Marius Fransman, the party’s provincial chairperson, called the union “right-wing” and said its campaign was “merely a ploy to make it relevant in a province (where) it had no stronghold.”
The ANC has also accused Solidarity for stirring a “divisive media circus”, pitching blacks against coloureds in a court matter dealing with race issues.
Fransman said Solidarity was a “papered over and rebranded version of the old White Mineworker Union.”
“It is still fed by the same right-wing Conservative Party roots and on which the Freedom Front Plus and Afri-Forum had been grafted as branches to the same trunk and bearing much of the same fruits of resistance to change,” he said.
Solidarity is challenging the national correctional services department at the Labour Court in Cape Town over its affirmative action quota system to employ staff.
The union argues that the department cannot use national quotas in the Western Cape. It says the national quota secures more jobs for blacks, but coloureds are the majority in the province and thus do not get department jobs they apply for.
The court case has been running last week and continues on July 29 to August 9.
Solidarity is acting on behalf of employees who have applied for correctional services jobs but were unsuccessful because they are not black.
Dirk Hermann, the union’s deputy general secretary, blamed the department for having a “blatant policy of absolute racial representation (which) is unfair, irrational and unlawful.”
“Solidarity is not merely going to ask for a ruling that its members be promoted, but also that the affirmative action plan of the department be declared unlawful in its entirety,” said Hermann.

More information about the respective applicants is given here below (Source: Solidarity trade union)

Linda-Jean Fortuin: Linda is a coloured female with 26 years’ service. She applied for three posts, but as a result of affirmative action, was passed over for all three. She was later appointed to one of the posts, that of Area Coordinator at Polsmoor, with effect from 1 June 2012.

Pieter Davids: Davids is a white employee with 26 years of service. He applied for the position of Assistant Director: Human Resources Administration. He was the best candidate and was recommended for the post. The Area and Regional Commissioners recommended that the affirmative action plan be waived and that he be appointed. The recommendation even stated that it would be to the detriment of service delivery if Mr Davids was not appointed. The National Commissioner, however, rejected the recommendation on the grounds of the DCS’s affirmative action plan, and the post was re-advertised and filled by a black candidate.

Christopher February: February applied for the post of Senior State Accountant and was recommended as the best candidate. However, the Director for Equitable Employment argued that the recommendation was not in line with the affirmative action plan, and the second best candidate, a black female, was recommended for the position. She, however, had already accepted another position, and the post was re-advertised. February is a coloured employee with 16 years’ service.

André Jonkers is a coloured employee with 17 years’ service. He has already acted twice in the post of Manager in the Training Division. The position was advertised and he applied for it. However, a black female was appointed. She accepted another post and Mr Jonkers was requested to act in the post again. He has already applied four times for posts, but each time a black person was appointed.

Geo-nita Baartman is a coloured woman with 13 years’ service. She applied for a position of assistant director. The other four candidates were black females. She was the best candidate and was recommended for the position. It was nevertheless decided that the second best candidate should be appointed. This person was however appointed to another position and it was then recommended that the third best candidate be appointed. This recommendation was not implemented, rather leaving the position vacant. Ms Baartman is still acting in the position.

Desiree Merkeur
Merkeur applied for the position of Secretary: Area Commissioner, Breede River Management Area, Western Cape. An interview panel selected her as the best candidate for the position. However, the position was left vacant due to the DCS’s affirmative action plan. Merkeur referred a case to the Commission for Conciliation, Mediation and Arbitration (CCMA) on 22 August 2012 after she had exhausted all internal grievance procedures. The case was referred to the Labour Court on 12 September 2012.

Teresa Abrahams
Abrahams applied for the post of Senior Correctional Officer (SCO): Unit Manager, Breede River (Warmbokveld) Management Area, Western Cape. An interview panel selected her as the best candidate for the position. However, she was not appointed in the post as she is coloured and her appointment would not have been in line with the targets of the DCS’s affirmative action plan. Abrahams referred a case to the CCMA after she had exhausted all internal grievance procedures. The case was referred to the Labour Court on 10 September 2012.

Deidre Jordaan
Jordaan applied for the position of Employee Assistance Practitioner (EAP) at the Brandvlei Prison. An interview panel selected her as the best candidate for the post. However, she was not appointed, as she is a coloured person and her appointment would not have been in line with the targets of the DCS’s affirmative action plan. Jordaan referred a case to the CCMA on 22 August 2012 after she had exhausted all internal grievance procedures. The case was referred to the Labour Court on 12 September 2012.

Jan Kotze
Kotze applied for the post of Acting Head: Medium A at the Drakenstein Correctional Centre. He was the acting head from 2009 until early in 2012. On 20 August 2012 Kotze referred a case to the CCMA after he had exhausted all internal grievance procedures. The case was referred to the Labour Court on 10 September 2012.

Derick Wehr
Wehr applied for the post of Workshop Manager in the Drakenstein Management Area. He is currently acting in the position. A panel of interviewers identified him as the best candidate for the job. However, he was not appointed since his appointment would not be in line with the targets of the DCS’s affirmative action plan. On 17 August 2012 Wehr referred a case to the CCMA after he had exhausted all internal grievance procedures. The case was referred to the Labour Court on 10 September 2012.

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About Yazeed Kamaldien

Self-employed journalist and photographer from South Africa.

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