Solidarity and Others v Department of Correctional Services and Others

Solidarity, a trade union, and several of its members employed by the Department of Correctional Services (DCS) challenged the Department’s Employment Equity Plan for 2010–2014. The plan set national demographic numerical targets for race and gender based on Statistics SA population figures. In 2011, posts in the Western Cape were advertised. Most individual applicants, mainly Coloured employees (and one White employee), were recommended for appointment but were not appointed because their race or gender groups were regarded as already overrepresented at the relevant occupational levels under the plan. The applicants alleged that the plan was invalid for failing to consider regional demographics as required by section 42 of the Employment Equity Act and that the refusals to appoint constituted unfair discrimination and unfair labour practices.

Leave to appeal was granted and the appeal was largely upheld. The orders of the Labour Court and Labour Appeal Court were set aside. The refusals to appoint most of the individual applicants were declared unfair discrimination and unfair labour practices and were set aside. The Department was ordered to appoint certain applicants to vacant posts or to grant retrospective remuneration and benefits where posts had been filled. The claims of Mr Davids, Mr Jonkers and Ms Fortuin were dismissed. No costs orders were made.

This case is a leading authority on the interpretation of section 42 of the Employment Equity Act and clarifies that both national and regional demographics must be considered in employment equity planning. It confirms that the Barnard principle applies across all designated groups and that employment equity measures must be applied flexibly, without rigid quotas. The judgment balances substantive equality with fairness in individual employment decisions.