Recent weeks have seen a spate of ‘swart gevaar’-type tactics against the Employment Equity Bill due to come before Parliament soon.
Listen to the hysterical tirades: “the job-killing demographic provision”; “existing jobs in jeopardy … stifles the creation of new ones”; “massive racial realignment of employment quotas”; “huge and unfeasible social engineering”; “would require massive population shifts” and so on ad nauseam.
All of this is hyperbolic rubbish.
The only thing that is massive about this proposed amendment is the ignorance of many critics who have been spouting their mouths off about it.
What is the real position?
The section the polemics refer to is section 42(a)(i) of the Employment Equity Act. At present, it provides that, when the Director General of Labour assesses whether an employer is complying with the Act, he “must” take into account the demographic profile of the “national and regional” economically active population.
The controversial proposed amendment is to remove the words “national and regional”.
According to the critics this has the effect of “replacing the regional criterion with a national benchmark”, an allegation that is simply incorrect.
Following on from this, they argue, Western Cape employers will not be able to employ coloureds above the group’s national average as opposed to their 54.8% representation in the Western Cape. The remainder of coloured employees will have to move to the rest of the country to be employable. Indians and even blacks will be similarly affected. Massive population shifts will result.
Why is this line of reasoning perverted and misinformed?
First, note that the proposed amendment will delete both “national” and “regional” as criteria. If the government wishes to replace regional demographics with national demographics, why does it propose deleting “national”? That they are proposing this deletion indicates quite the opposite of wanting to make national demographics the criterion. If the amendment goes through, the employer will be able to apply any area’s demographics, provided it is relevant, as the Labour Department has confirmed.
Secondly, the Director General will be given a discretion as to whether to pay attention to this criterion at all. The existing act says he “must” consider demographics. The proposed amendment says he “may” consider demographics. So he can ignore the whole issue if he deems it appropriate.
Thirdly, the definition of a “designated group” in the Act is “black people, women and people with disabilities”. One critic has declared that “the proposals invalidate the concept of ‘black’ as defined in the Act”. He says that coloured and Indian South Africans are “written out of the group”. But the definition of “black people”, if he had cared to read it, is and will remain “a generic term meaning Africans, Coloureds and Indians” in both the Act and the proposed amendments.
This fact also gives the lie to picking on Coloureds and Indians. One critic completely misreads section 42 where it refers to “different designated groups” by assuming that this means Blacks, Coloureds and Indians. However, applying the definitions given in the Act, the phrase refers to “black people (including Africans, Coloureds and Indians), women and people with disabilities”.
This means that in assessing BEE quotas, there is no distinction between “Africans Coloureds and Indians” (ACI). The balance that needs to be struck with reference to various factors including, in the Director General's discretion, the demographics of the economically active public population, is between ACI, women and disabled people on the one hand and non-blacks, men and the non-disabled on the other.
Fourthly, the critics have lambasted the proposed amendments to section 42 (as interpreted by them of course) by saying that they are absurd, unfeasible and unrealistic.
Precisely. And that is why no court will interpret the amended section in the way that the hysterical critics are claiming. It is a fundamental principle of the interpretation of statutes that if a provision would lead to an absurdity the court should adopt a construction, if possible (and it is probable), that would avoid the absurdity.
As the above makes clear, the fact that the legislator is proposing to delete “national” as well as “regional” shows clearly that it could not have been the intention of the legislator to make national demographics the obligatory criterion.
All this misguided criticism has had a pernicious effect. They are bound to create a sense of unease amongst Coloureds. Memories of District Six and other travesties will resurface. Needless and unnecessary worry and concern will have been sown in the hearts of other citizens as well.
That’s what makes all this irresponsible clamour so shameful.