Solidarity and Others v Department of Correctional Services and Others

The Department of Correctional Services adopted an Employment Equity Plan for 2010-2014 (2010 EE Plan) setting numerical targets based on mid-year population estimates from Statistics South Africa. The targets were: 9.3% White, 79.3% African, 8.8% Coloured, 2.5% Indian. In 2011, the Department advertised posts in the Western Cape. Individual applicants (employees of the Department and Solidarity members) applied for various posts. Except for one applicant who was not recommended, all others were recommended by interview panels. However, except for one female applicant who was later appointed, the applicants were denied appointment. Males were denied on the basis that Coloured persons were already overrepresented at the relevant occupational levels. Women were denied on the basis that women were already overrepresented. The Department's decision was based on the 2010 EE Plan which used only national demographic statistics and did not take regional demographics (Western Cape) into account. The Plan provided for deviations by the National Commissioner in certain circumstances (scarce skills, operational requirements), but no deviations were authorized for these applicants.

• Whether the 2010 Employment Equity Plan complied with section 42 of the Employment Equity Act
• Whether the numerical targets in the Plan constituted quotas (prohibited) or numerical targets (permitted)
• Whether the principle in Barnard applies to African, Coloured, and Indian candidates as well as to White candidates
• Whether the principle in Barnard applies to gender as well as race
• Whether the Department's refusal to appoint the individual applicants constituted unfair discrimination
• Whether the 2010 EE Plan should be declared invalid
• What remedy should be granted to the individual applicants

Appeal upheld in part. The decisions not to appoint the individual applicants (except Davids, Jonkers and Fortuin) were set aside as constituting unfair discrimination and unfair labour practices. Individual applicants who applied for posts still vacant must be appointed to those posts with retrospective remuneration and benefits. Individual applicants who applied for posts subsequently filled must be paid the remuneration and accorded the benefits of those posts with retrospective effect. No order as to costs.

(1) The Barnard principle applies to all designated groups: an employer may lawfully refuse to appoint an African, Coloured, or Indian person, or a woman, on the basis that persons of that race or gender are already adequately represented or overrepresented at the relevant occupational level, provided the determination of representation is based on a proper legal basis. (2) Section 42 of the Employment Equity Act requires that both the demographic profile of the national and regional economically active population be taken into account when setting numerical targets and determining the extent of representation of designated groups at various occupational levels. (3) Numerical targets that provide for deviations in defined circumstances (such as scarce skills or operational requirements) are flexible and therefore constitute permissible numerical targets rather than prohibited quotas. (4) Where an employment equity plan fails to comply with section 42 by not taking regional demographics into account, decisions to refuse appointment based on over-representation determined by reference to that defective plan lack a lawful basis and constitute unfair discrimination under section 6(1) of the EE Act.

The majority judgment noted: (1) It is not warranted to invalidate an entire employment equity plan that has expired where specific unlawful decisions can be identified and set aside. (2) The EE Act must be interpreted consistently with the Constitution and seeks to achieve a workforce broadly representative of the people of South Africa, which requires equitable representation of all groups (African, Coloured, Indian, White) within all occupational levels - it is insufficient to have high representation of one or two groups compensating for absence of others. (3) The fact that only the National Commissioner could authorize deviations and that managers could be sanctioned for non-compliance does not itself make targets rigid or turn them into quotas - such provisions are contemplated by section 24 of the EE Act. (4) Protective promotion (paying an employee at the level of a post they should have been appointed to while they remain in their current position) can be an appropriate remedy under section 50(2) of the EE Act. The minority judgment (Nugent AJ) observed: (1) The Department's Plan reflected only cold arithmetic based on racial ratios without the thoughtful, empathetic, textured approach required by constitutional transformation that respects the rights and dignity of all. (2) True flexibility in a plan means discretion in applying targets to the posts to which the plan applies, not merely exceptions for special categories - excluding doctors from a plan does not make the plan flexible for administrators and warders. (3) The demographic profile of a population necessarily includes its regional distribution, and using only national proportions without accounting for where people actually live produces irrational anomalies (e.g., restricting almost half the Western Cape population to 8.8% of posts while extending 8.8% of Limpopo posts to 0.3% of that province's population). (4) Reducing people to arid statistical ratios having no normative content does not serve the Constitution's demand for a public service broadly representative of South Africa's vibrantly diversified people.

This case is significant in South African employment equity jurisprudence because: (1) It clarifies that the Barnard principle (allowing refusal of appointment based on adequate representation) applies to all designated groups (African, Coloured, Indian persons, and women), not only to White persons. (2) It establishes that employment equity plans must take into account both national and regional demographic profiles of the economically active population when setting numerical targets and determining representivity, as required by section 42 of the EE Act. (3) It distinguishes between quotas (rigid, prohibited) and numerical targets (flexible, permitted), finding that provision for deviations can make targets flexible. (4) It emphasizes that determinations of over-representation or adequate representation must be based on the correct statutory benchmark - failure to use the proper benchmark undermines justifications for race or gender-based employment decisions. (5) It affirms that designated employers must comply with all requirements of the EE Act, and that national departments are not exempt from the requirement to consider regional demographics. (6) The minority judgment provides an alternative analysis emphasizing that true flexibility requires discretion in applying targets to ordinary posts, not merely exceptions for special cases, and that demographic profiles must account for regional distribution to be rational. The case reinforces constitutional values of substantive equality while requiring careful, lawful implementation of affirmative action measures.