Strong arm of the executive in the adjudication of affirmative action disputes. Dirk Groenewald Head of Solidarity’s Centre for Fair Labour Practices The trial in the Western Cape of Solidarity obo its members vs the Department of Correctional Services (“DCS”) has sparked much debate on the implementation of affirmative action and the limits thereof. For those who are not familiar with the facts surrounding the case it, in short, relates to ten applicants (nine of whom are termed coloured and one termed white in terms of the Employment Equity Act), who have all been recommended for promotion by interviewing panels but who have been denied promotion purely because the positions they applied for were earmarked for persons from other race groups. The “DCS” defended its actions by stating that it is a national department and therefore the department’s human resources in each province need to reflect the national demographics of the population of South Africa. In the court action, Solidarity not only attacks the validity of the affirmative action measures taken in relation to each applicant but also the validity of the employment equity plan of the “DCS”. The arguments presented by the Applicants include, among others, the following: - the employment equity plan of the “DCS” amounts to nothing but race norming in that it even includes white men and therefore has nothing to do with correcting the injustice of the past but that it rather sets out to establish some form of racial representivity. - The use of national racial demographic representivity is not sanctioned by the Constitution or the Employment Equity Act (No.55 of 1998) - The plan fails to comply with the requirements of the Employment Equity Act in that it is nothing but a quota system. - The plan fails to comply with the provisions of section 42 of the Employment Equity Act in terms of which employers are obliged to consider a number of factors when setting their numerical goals. - The plan differentiates unlawfully between members of the designated group. - The plan fails to comply with section 195 of the Constitution, in that the affirmative action measures the “DCS” takes are not based on objectivity, ability and fairness, but are only focussed on establishing national demographic representivity. I can elaborate on a number of other factors and arguments. However, after perusal of the respondent’s heads of argument I found that the issue of the doctrine of “separation of power” to the court is of great importance. The arguments presented by the Respondent is clearly an attempt to illustrate when the courts may/may not interfere and/or review decisions taken by the executive authority and, for that matter, by the legislative authority. Due to the far-reaching consequences this argument can have for minority groups or even just for those who are not in power, I consider it relevant to analyse the argument of the Respondent in more detail to establish exactly what the Department of Correctional Services believes the role of the courts should be in our democratic society. Before one attempts to explain the relevance of the Respondent’s submission, I think it is important to briefly explain the doctrine of “separation of power” as well as that of “checks and balances” so that the consequences of the Respondent’s argument can be fully understood. The theory of separation of powers can be attributed to the constitutional theory of John Locke (1632–1704). In his Second Treatise of Civil Government he made the following remark: It may be too great a temptation for the humane frailty, apt to grasp at powers, for the same persons who have power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from the law, both in its making and execution to their own private advantage. The French jurist Montesquieu (1689–1755) made the following point with regard to the need for the separation of power: When the legislative and executive powers are united in the same person, or in the same body of magistrates there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were joined to the executive power the judge might behave with violence and oppression. The need for a division of the state’s powers was thus identified and the three pillars of state authority, namely a legislature, an executive and a judiciary, were developed as a result. In terms of this principle, the functions of making law, executing the law and resolving disputes through the application of law should be kept separate and, in principle, they should be performed by different institutions and persons. In terms of Constitutional Principle VI, our 1996 Constitution is required to ensure a separation of power between the legislature, the executive and the judiciary, with appropriate checks and balances being in place to ensure accountability, responsiveness and openness. Although one will not find any express reference to these principles in the Constitution, the Constitutional Court in the matter of South African Association of Personal Injury Lawyers v Heath confirmed that there ‘can be no doubt that our Constitution provides for such a separation [of powers], and that laws inconsistent with what the Constitution requires in that regard, are invalid’ . The purpose of checks and balances is to ensure that the different branches of government control each other internally (checks), and serve as counter weights to the power possessed by the other branches (balances). Although the definition can certainly be elaborated on, the above is briefly what the doctrine of the separation of powers is all about. The Respondent made the following point about the court’s right to interfere with the “DCS’s” Employment Equity Plan (EEP): 155. Moreover, in determining the rationality of a decision of the executive, the Court should not take over the function of the government to formulate and implement policy. This principle is illustrated in Merafong Demarcation Forum v President of the RSA, where the Court stated that, The fact that rationality is an important requirement for the exercise of power in a constitutional State does not mean that a court may take over the function of Government to formulate and implement policy. If more ways than one are available to deal with a problem or achieve an objective through legislation, any preference which a court has is immaterial. There must merely be a rationally objective basis justifying the conduct of the legislature. Provided a legitimate public purpose is served, the political merits or demerits of disputed legislature are of no concern to a court. In Pharmaceutical Manufacturers Chaskalson P made it clear that the rationality standard does not mean that courts can or should substitute their opinions for the opinions of those in whom the power has been vested. A court cannot interfere with a decision simply because it disagrees with it or considers that the power was exercised inappropriately. 156. In light of the aforegoing, we submit that the EEP is rational and interference with the EEP by the Court is neither warranted nor necessary. The Respondent further concurred with the views of the Labour Appeal Court (“LAC”) , insofar as it pointed out that it is not open to a court to “second guess” a decision to the effect that by not filling a post, it will or will not compromise service delivery. The Respondent also made it pertinently clear that it supports the views of the LAC insofar as it has indicated that by rendering the implementation of restitutionary measures subject to the right of an individual’s right to equality would be incorrect. Considering these arguments, it is clear that the Respondent is of the view that restitutionary measures are a constitutional and legislative imperative and are not secondary to the right to equality and dignity of any individual. Therefore, any measure (i.e. plan) which has as its objective the achievement of such restitutionary measure will be constitutionally compliant and will effectively be a form of policy in order to give effect to legislation. The formulation of an employment equity plan, therefore, is regarded as a form of policymaking which is reserved for the executive authority, and the courts should thus not be allowed to interfere with such decisions. This argument is not only alarming but, for a number of reasons, it also poses a threat to the principle of the separation of powers and the enforcement of the Bill of Rights. If this argument were to stand it would effectively mean that any government department that can indicate that the policy which it has formulated has as its aim the achievement of some or other constitutional objective, the courts will be barred from reviewing those policies, notwithstanding the possibility that the measures which these policies sanction, are unconstitutional and illegal. When reading the arguments of the Respondent, I cannot help but recognise a remarkable resemblance between the arguments of the Respondent and the strategy of the apartheid government in the 1950’s when it established the “High Court of Parliament”. The role of the “High Court of Parliament” was to review court decisions and to limit the courts’ powers. Clearly, the independence of the judiciary, as well as its functioning within our constitutional democracy are under attack. This is apparent not only from the Respondent’s heads of argument but also from the numerous comments on the functioning of the courts made by members of the ruling party. The executive authority is clearly imposing its authority when it comes to the execution of affirmative action measures and it clearly wants to limit the courts’ involvement in the adjudication of affirmative action disputes. One can only hope that the courts will see this argument for the unwarranted political interference it is and that it will be met with a judgment sanctioned and supported by the constitutional democracy we are.
Posted on: Tue, 29 Oct 2013 05:34:09 +0000
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