Quick summary
- Is there a difference between a target and a quota? Some have argued that the Employment Equity Amendment Act (EEAA) is not so problematic because it only calls for flexible “targets” not rigid “quotas”. Is this a valid defence of the EEAA?
- Section 15 (3) of the EEA (Employment Equity Act) explicitly prohibits quotas and inflexible targets in an employment equity plan, and the use of such rigid numbers could lead to a case where an employer’s employment equity plan is invalid and unlawful and in effect boils down to unfair discrimination.
- However, when failure to reach a target is accompanied by the threat of a devastating fine or penalty then the only reasonable conclusion is that it amounts, in effect, to a quota.
- Whereas the EEAA (Employment Equity Amendment Act) purports to set numerical targets, the penalty provisions within the legislation clearly amount to rigid quotas intended to be strictly enforced.
Introduction
The former military dictator of Uganda, Idi Amin is often cited as having proclaimed that under his regime “There is freedom of speech, but I cannot guarantee freedom after speech.” Such word games are not unlike the South African government’s attempt to convince us that the sectoral targets set by the Minister of Labour and Employment and their accompanying penalties do not amount to some form of quota.
As a brief guide for the uninitiated, racial or other quotas are strictly prohibited in South African law whereas numerical targets are seemingly acceptable. But is there a difference?
Legal position
A ‘quota’ refers to a requirement to hire or promote a fixed number of persons during a given period and/or the reservation of a certain number of vacancies for designated groups. By contrast, a goal or target is a numerical objective, fixed realistically in terms of the number of vacancies expected, and the number of qualified applicants available in the relevant job.
In South African Police Service v Solidarity obo Barnard (CCT 01/14) [2014] 11 BLLR 1025 (CC) (2 September 2014) the court explains – “Let it suffice to observe that the primary distinction between numerical targets and quotas lies in the flexibility of the standard. Quotas amount to job reservation and are properly prohibited by s 15(3) of the Act.”
Similarly in South African Restructuring and Insolvency Practitioners Association (SARIPA) vs the Minister of Justice and Constitutional Development (Case Number 4314/2014) we read that – “A quota would impose a fixed number or percentage which must be attained, or which cannot be exceeded, and would do so regardless of the number of potential applicants who meet necessary qualification.”
Whilst it is true that some judges have primarily referred to “flexibility” as being the key distinguishing feature, others have diminished its importance, stressing that as long as such a policy is not applied “overly rigidly” it’s fine – maybe. Further still, some have argued that the crucial distinction lies in the external (quota) vs internal (target) imposition of the measures. Then again, what does it mean to “impose something internally” other than to simply “choose to do it”?
Does this seem unclear to you? You are not alone. Despite the ostensible prohibition of quotas in section 15(3) of the EEA and Section 9(2) of the constitution as well as countless court cases in this regard, we still don’t have a clearly defined notion of how we ought to distinguish between the apparently laudable implementation of targets from the legally deplorable application of quotas.
For the most part judges, academics, politicians, and commentators have continuously struggled to maintain a workable distinction between these concepts without employing illogical word games. Yet, without a meaningful distinction, much government policy would be rendered ultimately unjustifiable. So, to justify targets, logic is sacrificed on the altar of the word games.
Conclusion
At the end of the day, there is little doubt that the so-called “numerical targets” proposed in the EEAA are intended to pave the way for a system with “freedom of compliance, but no guarantees of freedom after non-compliance.” They are the legal equivalent of a Trojan horse – only without any of the necessary subtlety or cunning.
So, when is a target a quota? Legally speaking, it can be difficult to tell, but it seems clear that, more often the case than most politicians would care to admit, a target is a quota trying to pass as lawful. This is especially so when failure to reach a target is accompanied by the threat of a devastating fine or penalty. In such a case, the only reasonable conclusion is that the target amounts to a quota.
The proposed EEAA, insofar as it is implemented, threatens to dismantle freedom of trade in South Africa and risks further jeopardising the international standing of businesses operating within its borders. It provides for racial and other employment quotas (called “targets”) proportional to the country’s population mix, and purports to give the Minister of Labour the option to fine and/or restrict the operations of businesses that do not comply.
Fortunately, the EEAA is impossible to implement, unconstitutional, and beyond the enforcement powers of a failing state. It has not taken effect and likely won’t any time soon. But litigation is crucial. The risks posed by the EEAA do demand coordinated resistance by business leaders and comprehensive legal action against its implementation.
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