Sunday, 20 October 2013 12:42

Correctional Services Ruling - What The Fuss Should Really Be About

Written by Ryan Swano
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There were some ecstatic celebrations after the ruling in the Labour Court against The Department of Correctional Services (DCS) and we all should be seeing it as a victory.
We should all be saluting those pioneers who set out to challenge the DCS for incorrectly interpreting  Affirmative Action by creating implementation policies which are unconstitutional.
We should however ask ourselves what this victory really means and what aspects of the victory do we hail as a contribution to the improved quality of the lives of the Coloured community. Are some people misinterpreting this victory?
The judgment, delivered in the Labour Court on Friday 18 October 2013 by Judge Hilary Rabkin-Naicker, ruled that regional demographics had also to be taken into account in setting equity targets and that nine of the complainants, all Coloured, had sufferd unfair discrimination. The tenth complainant was White.
Their case had been taken to the Labour Court by the trade union Solidarity.
Had Affirmative Action been properly implemented by the DCS, there would not be this court case.
It would also perhaps have taken us much longer to look at what the Real issues are surrounding the Act and its implementation. 
Many people are foolishly excited that the ruling against the Employment Equity policies of the DCS is a victory against Affirmative Action (AA), against Employment Equity (EE) and / or against Black Economic Empowerment (BEE).
That is furthest from the truth.
The judgement is not a ruling against any of the above Acts but in simple terms, the ruling directs the DCS to follow the correct implementation of Affirmative Action.
What is of concern is that there is still the misguided perception, amongst Coloured working class people, especially in the Western Cape, that the problems they face in the job market and which they have to deal with on a daily basis, not only in the public sector, but sometimes more so in the largely white-owned private sector, is a direct consequence of the existence of Affirmative Action.
The real (and perceived) problems that so many people have with AA and the other related Acts lies not in their mere existence, but it lies with the large scale misinterpretation, incorrect implementation and wholesale deliberate side-skirting of the guidelines, the intentions and the spirits of these Acts.
The (natural?) knee-jerk reaction of people who either have a direct negative experience of AA or who have been over time influenced to see AA as wrong or unnecessary, is to call for its scrapping altogether.
There seems to be with South Africans, not only regarding these laws, but many other laws that are intended to correct imbalances of the past, a tendency to call for the scrapping of those laws, especially by voices in minority groups including Coloureds, a population group of which I am also a part of.
There are many kinds of laws, in this country and in many others, that are usually well intended and well written, but in all societies laws have to be implemented by state organs, the business sector and civil society who could misinterpret those laws. 
We should be asking whether the faults lie with those laws or do they lie with the incorrect implementation of those laws.
In South Africa we have the right to challenge laws which are incorrectly implemented by approaching our courts up the the highest level, which is the Constitutional Court. In fact, one could say that we as citizens have a duty to challenge any law we perceive to be unconstitutional.
Having said all this, it begs the question; Should we as a minority population group, as Coloureds, fight against Affirmative Action or should we not rather be fighting for the correct implementation thereof.
According to the 2011 census and 2011 Commision for Employment Equity Statistics, the hierarchy in the private sector, and even sometimes in the public sector, in the Western Cape especially, but all over the country, is still heavily skewed towards Whites. Those imbalances need to be corrected and in the Western Cape those corrections should be favourable to Coloureds who make up 54% of the population in the province.
The recent Black Economic Empowerment Summit discussed how white-owned companies "Front" and wilfully side-skirt the law thus making ineffective the intentions of the law. Perhaps there should be such an Affirmative Action Summit too.
When looking at the Western Cape corporate world and looking at the WC demographics, one should be asking why there is a constant outflow of Coloured managerial talent to other provinces and yet most WC companies seem to be almost lilly-white in their upper echelons?
It can be considered fact that there is a subversive drive to scrap AA and other related Acts by white-owned companies. Would it not be reasonable to assume that those companies would want to prevent Coloureds from climbing the corporate ladder and would go as far as doing "window-dressing" sometimes willfully (and against the demographic guidelines) appointing a Black African in a created position giving him or her no real executive powers above a Coloured and saying that they are forced to when they are not, and thus they "prove" the point that AA is against Coloureds?
These are of course excluding the companies where AA is indeed effectively and correctly applied in terms of demographics and where in some cases a Black African is appointed above Coloured candidates because that person is by far the better candidate.
Instead of fighting against Affirmative Action, would Coloureds not perhaps benefit more, as shown in this milestone case, from working towards the correct implementation of AA and other related laws and especially holding not just organs of state but also white-owned companies that side-skirt the law accountable?