|5 The recent amendments to the EEA
The Employment Equity Act was recently amended for the first time since its inception in 1998, by means of the Employment Equity Amendment Act 47 of 2013 (which came into force on 1 August 2014 – nearly to the hour exactly one month before the handing down of the Constitutional Court's judgment in Barnard). The amendments brought changes to various important provisions of the Act, ranging from substantive matters (such as the definition of the designated groups under Chapter III and both the definition of prohibition on unfair discrimination and the burden of proof in claims of unfair discrimination in terms of section 6) to procedural ones (such as the assessment of compliance with the Act and the reporting requirements). For the present purposes, the most relevant of the amendments relate to the assessment of compliance with the provisions of the affirmative action chapter, specifically in respect of the contents of section 42 of the Act. Earlier in this piece I briefly recounted the (pre-amendment) provisions of this section, and I made the point that its scheme facilitated (and, indeed, gave definition to) the Act's concept of the pursuit of "equitable representation" with reference to the foremost compliance criterion in respect of affirmative action target-setting – demographics. The amendments to section 42 are, in this respect, extremely significant. For the present purposes I will focus only on these, very briefly and extremely superficially.86
I will not mention all of the amendments to this section but, judged holistically, the most important is that of the scrapping of most of the criteria previously listed for the assessment of compliance by a designated employer. It should – at this stage of reading this piece – come as no surprise that the legislature has opted to retain only one of the previous criteria (with the wording slightly altered) as contained in the section, namely the "extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational level in that employer's workforce in relation to the demographic profile of the national and regional economically active population".87 The Amendment Act has, thus, removed all of the workplace-related factors referred to earlier as contained in the section. Note, of course, that in the earlier discussion of quotas and the illegitimacy of the rigid pursuit of numerical targets, these were the only reality-based factors that a designated employer could raise in order to ensure flexibility and consideration of its actual requirements and circumstances (if it came to a failure to reach numerical targets). While including a number of new factors (all relating to "reasonable steps taken by a designated employer" to do certain things), as well as a catch-all ("any other prescribed factor"), the overwhelming and inevitable conclusion is that the legislature has clearly decided to tighten up the demographic representivity agenda pursued in terms of the Act by making it clear for everyone to see that demographics are, and will remain, first prize. Designated employers are now left with little doubt (if any remained) about the purpose of the Act and the objective of the legislature in its conception of the numbers game and what is expected in its implementation.
These amendments, obviously, did not feature in the litigation in Barnard. If we will see any future litigation under the Act - as we must - they will doubtless play a role in further cementing the illegitimate agenda of the Act and our apparent, inevitable, slide into a situation where the term "affirmative action" (as understood by ordinary South Africans) might, as more and more signs seem to suggest, equate to the pursuit and condonation of what may very well come down to little more than institutionalised racism under a gossamer veil of "transformation". To go old school for a moment: in the words of Johnny Mercer, when accentuating the positive and eliminating the negative, we need to "latch on to the affirmative" - but "don't mess with mister in-between".88 The judges of our Constitutional Court, it would seem - when casting their votes over the legitimacy of the Employment Equity Act in this whole scheme of things – may very well have briefly lost sight of this last warning. In our constitutional equality paradigm, I would characterise this Act as the very personification of a rather shifty-eyed Mr In-Between – caught somewhere between the constitutional principle of affirmative action and the governmental ideology of the numbers game. It is worthy, if nothing more, of constant and very critical watch; and someone should have the intestinal fortitude to mess with it, sooner rather than later.
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