# Regulatory Compliance Category > BEE and Employment Equity Forum >  Its constitutional to have a blacks only policy?

## Marq

Code of good practice......mmmmm.

Is this a case of police harassment  :Roll Eyes (Sarcastic): , or is this just standard practice in the workplace? 

Story about the constitution vs equity act here.

The test is here and one can guarantee a sweep under the carpet reaction from the legal profession and a step to the right from the political arena.

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## sterne.law@gmail.com

> Code of good practice......mmmmm.
> 
> Is this a case of police harassment , or is this just standard practice in the workplace? 
> 
> Story about the constitution vs equity act here.
> 
> The test is here and one can guarantee a sweep under the carpet reaction from the legal profession and a step to the right from the political arena.


No it is not and the Employment Equity Act also does not say or allow this. First point - The Constitution is the supreme law however the EE and such acts which might be against the Constitution are allowed due to the neccessity to correct past errors and are mentioned in the Constitution, thus giving it credence.
However no company may have an exclusion type policy. EE and such policies and the practice should be where there are similiar candidates a company may elect a "black" person as  part of a EE policy. It is also clear that this need not be a deciding factor all that is required is that the person is deemed competent and capable of doing the job. Hence the argument that the white male is far better qualified and his non appointment is discriminatory is not relevant. The "Black" person need only be considered competent. A further point, relevant experience is also not neccessary, per se, as this is a form of discrimination against previously disadvantaged.

So a policy of exclusion is not allowed but the practice of employing a previously disadvanteged person, as, very important, part of an EE strategy, is not discrimination or unconstitutional.

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## Marq

OK - thats what the act says....but then....

1. Why are we seeing this court case and a test of the act?

2. Are we not just playing with words? Here is an Act that talks about Affirmative action, Designated Groups and Equity plans that ensures specific numbers are met for the designated group (black only). Then put some words in that says we can lower the standards and employ anybody who looks like they can do the job. Then put some words that seem to be ambiguous when it comes to...oh - did you mean designated group or excluded group? The result and the practice and the reality is plain and simple - apartheid job reservation disguised in legalese.

3. You cannot have a constitution which is supreme and says equal stuff for all and then say its ok to have other acts that override the supreme act because we are trying to correct the past. It makes a mockery of the supreme act and the whole scenario subjective.

4. The past should be corrected through mechanisms that naturally raise the disadvantaged up - It cannot be corrected by stomping on or excluding the previously advantaged and making a race group as a whole guilty of an offence that the majority left in this country were probably not responsible for.

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## Marq

And if you have another view on this......thats fine ...but have a look at the latest rant from Manyi and the BMF.

article here.




> He said "in general", however, that "everything is about racism" in South Africa.
> "In South Africa you are naive if something happens out of [the context of] racism," he said.
> "It is the lens through which we all see. It is a given."


If thats not promotion of blatant racism, then I dont know what is. And coming from the BMF, I guess when they talk about affirmative action, they are talking about nailing the white folk. 

I suppose the constitution protects him in his right to freedom of speech, but then who is protecting the side being attacked. Should one turn a blind eye to the obvious and bring out the fancy sentences and words in defense of people like Manyi, and put head in sand? Should one be putting up a defense and rolling out a plan of action to eliminate racism and black apartheid that includes removing Black only associations that are getting more and more active as they gain confidence that there is no opposition to their actions? Should there be White Management Forums and the like started up to defend what is left from being decimated, as seems to be the objective of Black Management Forums?

As it stands at the moment, the constitution is overwritten by other acts that are creating only one loser and that is South Africa. Revenge is creating a shadow, shading the vision of the future, if the current ruling party actually has one? (a vision or a future that is)

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## Muzi Oscar

Marq: BMF is about race. To them race is important, its the very reason they started their organization. There is a need to support black managers. WMF, what will be its purpose, most managers are white already.

And your blacks only quote is not correct as EE includes white women too.

You know getting worked out about BMF talking race all the time is like getting worked out about COSATU burning labour brokers - I mean for COSATU, if employers can not easily access skills they don't wanna keep (e.g. boiler makers and fitters in construction) quickly through labour brokers, they will start keeping a certain number of permanent employees which will join the union and create more income for COSATU. So why are we suprised. Everyone is out to fullfill their mandate to those paying for his bread.

So no matter how much noise we make, the mandate of the BMF is to promote development of black managers, period.

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## Marq

I cannot find any part of any act that states that white women are part of the 'designated groups' as defined in the employment equity act. Further if one looks at the presentation of this police captains case as mentioned at the start of this thread, no where from either side was this even mentioned. The reason given by the police commission was 


> A reason advanced by then national police commissioner Jackie Selebi was that Barnard's appointment was not representative of the police's employment equity goals, a senior superintendent who testified on behalf of the police told the court on Monday.
> "He [Selebi] wanted to ensure that all units adhered to the Employment Equity Act, in line with equity plans of the South African Police Service," said Senior Superintendent Johannes Phetolo Ramothoka.
> 
> "The appointment of the candidate [Barnard] was not going to be in line with guidelines provided by the equity guidelines. White females were over-represented by five at salary level nine so her appointment would have meant an over-representativity on that level," he said.


Does not look like white women qualify as a designated person given this argument and the prosecution did not offer it up as a reason either.

Muzi: Perhaps you can point us to the part where the act has been changed.

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## Marq

I dont know that its still true that most managers are white these days- Most management material guys I come across seem to have been retrenched, are self employed, early retired, sitting waiting for a management position that they will never get or hunting for a position somewhere. I would guess that the mix is at least 50/50 but thats my guess based on what I see within my surrounds. The stats also show that there are 20% white management in the Government sector. The only white guy I know in that sector is Mike Sutcliff - Oh and theres also a guy up in Utrecht that seems to run some things after their town clerk and financial guy were caught with hands in the till.

The common practice these seems to follow this trend:-



> "There is currently a practice in the Saps, for the sake of the ideology of representation, to rather leave posts vacant or scrap them instead of appointing experienced white police members in the posts," he said at a news conference.
> 
> "Representation has become the most important driver for the Saps, instead of pursuing their main objective, namely to protect all South Africans."
> 
> Nine cases have been filed against the Saps and one against the prison service alleging white members were being denied promotion or not being re-hired because of the colour of their skin.
> 
> The police service could not be reached for comment.
> 
> - Reuters


It also appears to be a trend in general government departments, municipalities and black empowered companies. Funny how these areas seem to be having so many management and financial problems at the moment.

I do believe in a ying yang principle to balance the world - and as long as we have a BMF promoting black managers, there should be a WMF promoting white managers. In actual fact we should just have a MF - and promote South Africa and our business as a solid unit, but as said this is a race thing and is likely to be there for as long as there are different race groups on this earth.

Sure there is supposed to be some form of proportional representation and sure there should be a balanced scorecard and all those things, but the reason its not happening and the reason Manyi and Mdladlana are now throwing racial comments and playing the blame game is that the act and policies in place are not working. As I keep saying *there has to be a better way of going about this*. Now with comments from Mdladlana, saying things like 


> "Comply with the law instead of manufacturing a revolution that is not going to take us anywhere ... You better touch our hand whilst we are still giving it," 
> "I want to warn them that the revolution will be a revolution of all black people.


and from Manyi saying things that are not true and cannot be backed up..



> Manyi said in recruitment and promotions the trend showed that white people were generally favoured.
> "The job market is pro-white people ... we don't have the facts to back up the story that employment equity is anti-white."


This shows lack of control and a situation that is getting out of hand. There is nothing wrong with having a BMF, but when it turns revolutionary and political, then its reason for being should be questioned. There appears to be an underlying frustration with the intended results of the Acts and policies which are in effect showing that the Act and its methodologies do not work on the ground.  Force has never worked and neither will a forced sharing/taking scenario work without a fair result for both parties. There has to be an alternative put on the table that is balanced for all. 

No one has answered the question as to where the white man is expected to go after he no longer has this management position. Is he now expected to not have an income, join the UIF q's, give up his lifestyle and his family? What is the alternative - the only one on offer, seems to be the ultimate aim, which is to ensure that all whites leave the country. Is that the true intention and end result of this  Equity Act that we say is balanced, fair and constitutional?

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BBBEE_CompSpec (22-Nov-09)

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## Marq

Heres another reason that I do not believe white women are ok within the definitions of designated groups:-



> Mda pleads guilty to racism Friday, November 20, 2009 
> [ Reads:223 / Comments:0 / 3225 ]
> 
> Cope youth leader Anele Mda has apologised to deputy general
> secretary Deidre Carter for calling her a "stupid, token white
> bitch", the Dispatch Online reported on Friday.
> 
> "I... wish to extend an unconditional apology to Ms Carter for
> any prejudice my utterances might have caused," Mda said.
> ...


The true feelings of the majority people? And then its ok because we just say sorry and it all goes away?

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BBBEE_CompSpec (22-Nov-09)

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## Dave A

> When recommendations of three officers, with Barnard's name at the top were sent to then National Commissioner Jackie Selebi's office, he decided not to appoint anyone to the position.


Is anyone seriously trying to justify that under EE legislation? I look forward to hearing the ruling.



> "In South Africa you are naive if something happens out of [the context of] racism," he said.
> "It is the lens through which we all see. It is a given."


What Manyi is saying is that he is an unrepentant racist - *he* sees racism in everything and can't believe that there might be people who don't. But fair racism is OK so what's the problem? As long as a white person doesn't criticize anyone who happens to be black, everything's cool.

I'm afraid the allowance of "fair" racial discrimination in our constituton is something that is going to haunt us for many years, perhaps decades to come. The concept of what is fair and what is not is subjective; certainly no absolute.

Manyi will believe he is fair, just as Verwoed, Vorster, Hitler, the Klu Klux Clan and so many other bigots who have gone before.



> No one has answered the question as to where the white man is expected to go after he no longer has this management position.


I've noticed an under-representation of white male garbage collectors. I'm sure the BMF wouldn't have a problem placing a few there.  :Stick Out Tongue: 

Anyway, not a black manager's problem so who cares.

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BBBEE_CompSpec (22-Nov-09)

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## sterne.law@gmail.com

The SAP has previously run foul for this exclusionary type of practice. The relevant case was where the only qualified applicants, I believe bomb squad, were white male. the SAPS did not appoint them. The 4 men did win the matter and were subsequently appointed.
I want to refer to my earlier post - any form of exclusionery practice is not allowed. 
As to the argument of why have a constitution that advocates fairness etc, etc but then another part that allows what is affectively discrimination albeit EE or AA we must look at the reasoning. The aim is obviously to have one set of rules that are fair to all. We do however need to address the past wrongs. It would be lovely to believe that over time they will be corrected as education flows through the system and such forth but there are still too many barriers that need to be removed. 
EE and affirmative actions are defences or justification for what is essentially discrimination. 
The EE does refer to white woman under the definitions section. What I find most apalling is that Chinese people, follwoing a constitutional bid, now fall under the definition of previously disadvantaged.

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BBBEE_CompSpec (22-Nov-09)

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## sterne.law@gmail.com

Perhaps the biggest draw back and I refer particulalry to some of Marq posts is the practice of using EE as a cover or excuse. Just as there are barriers from a white perspective I believe that there are barriers being created by Black people. White people are prejudiced in varying degrees based on 100 years of past history and black people have a feeling that they must revenge the past inequaliites. It si a difficult balance to strike and I do not believe it is possible. America still ahs problems with their AA policies and practices. We are seeing the same circle. Black person gets advanteged, white person feels aggrieved and becomes angry towards balck etc, etc.
The original BEE had the same results. Someone is appointed to some big position. Is not qualified the denied white people say see told you so and the circle goes around.
Where the SAPS is looking like falling short is the practice of not appointing. i want to once again re-iterate that no act allows for a non exclusionary policy. The SAPS decisions to not appoint some one becuase the only available person is white is a non exclusionery one. The case is certainly based on this, there was no one qualified, otehr tahn Barnard, so the SPAS did not appoint anyone, that is exclusionery. Had some one else been appointed and the appointment defended with the EE policy it might have had more substance.
The importance of this case is the challenging of a company's EE policy. The hiding behind the policy, which is what the SAP seem to be doing, could be the undoing. Just because a policy exists or a rule exists does not make it lawful.

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BBBEE_CompSpec (22-Nov-09), Dave A (22-Nov-09)

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## Dave A

I definitely agree.

Look, there is no doubt we've got to take extra measures so that the previously disadvantaged can catch up and assume their rightful place. I would hope no-one objects to a balanced society, and in fact hope people actively support us getting to that point.

But in the same breath we can't be just chucking talent and ability to one side to achieve this. The original thinking behind affirmative action is we would increase balance by expanding on top of what was in place already. To expect balance to be achieved by purely "expanding the market" was perhaps wishful thinking, but the greater the expansion, the less the pain.

The question comes - are we seeing this expansion at all? In some areas we seem to be losing skills that are not even being replaced, let alone seeing the pool expanded on.

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BBBEE_CompSpec (22-Nov-09)

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## BBBEE_CompSpec

COSATU shocked at employment equity findings

The Congress of South African Trade Unions is disgusted at the findings of the 2008/2009 report of the Commission for Employment Equality (CEE), which showed that white men still occupy 61% of all top management positions.

48% of all those recruited at this level and 45% of all employees promoted to this top level are also white males, while the equivalent figures for black men are 10% in top management positions, 13% of those recruited and 13% of those promoted to this level.
Indian men represented 5% and coloured men 4%, while white women represented 12%, black women just less than 4%, and Indian and coloured women each just more than 1%.

This is despite the fact that in government the picture is very different. There 61% in top management are black, 12% coloured, 5% Indian, 21% white and under 1% foreigners. Although that still falls short of the target of matching the demographics of the country, the government is making good progress.

On the other hand if you take the private sector alone, virtually no progress has been achieved. White people hold 74% of the top positions, followed by black people with 13%, Indians with just less than 6%, coloureds with 5% and foreigners accounting for about 3%.

This is a shocking indictment of the private sector, which has done virtually nothing to transform the demographic structure inherited from apartheid.

The report totally demolishes the argument that black economic empowerment is now redundant because we now live in an equitable non-racial society and that BEE and affirmative action are ‘anti-white’. On the contrary we still live in a society in which wealth and power remains heavily biased in favour of the white minority.

The federation agrees with the CEE Chairperson, Jimmy Manyi, that the government's approach of persuasion was not having the desired effect, that black and coloured people were bearing the brunt of it, and that the present law “is very forgiving”.

We welcome his statement that “the department and the commission are going to take a much less conciliatory view”, that “those who are not playing ball we will name and shame” and that there are going to be a lot more prosecutions.

His report powerfully reinforces COSATU’s view that BEE is as necessary as ever, and the federation backs the Department of Labour’s proposed amendment to the Employment Equality Act which would penalise companies not abiding by racial diversification in the workplace. 

COSATU concurs with Labour Minister Membathisi Mdladlana’s opinion that to remove legislation dealing with the lack of racial diversity - a legacy of apartheid - was tantamount to "throwing away the Constitution" and that “previously disadvantaged people would soon get frustrated with extending an olive branch to people who had formerly oppressed them during the violent apartheid era.

The minister spoke of an “impending revolution” and warned employers "that the revolution will be a revolution of all black people".

COSATU will back to the hilt attempts to enforce the existing legislation but will also continue to argue for a far broader form of BEE which benefits the majority of the formerly disadvantaged and not just a small elite minority. Much more needs to be done to empower the workers and to establish and sustain worker and community co-operatives.

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## tec0

I am sorry but no. Despite the numbers one must consider wealth. When you look at our government structure you see that government is extending loans to particular race groups and totally deny access to other race groups. These loans only have to be paid back within the next 3 years.

The loans are used to create a foundation for business creation and these businesses must be favoured when it comes to vendors and contract allocation. Thus the free enterprise system itself becomes moderated and controlled by government.  

The second reason why contractors are basically âwhiteâ orientated is because it is the only way to generate an income. Permanent jobs at Telkom or Eskom are none existent and the same was true with our military system and is focused on the Caucasian groups.    

The mining groups is are external assets and cannot be counted because the owners like Anglo American has a basic admin structure that is local however the upper management structure is located in America. Also little to no training is extended to South Africans âI stand to be correctedâ

Lastly one must understand that government has basically manipulated existing structures and created laws to facilitate there need to empower. It is of note that there is not a single ânewâ job creation inactive that materialized or worked successfully. Despite the mentioned numbers of successful endeavours done by government one must look at the failure rate and the costs that were involved.

All of this mentioned there is a second more concerning problem. When you look at job creation the labour broker is becoming the alternative system thus a hidden tax on the people that use labour brokers to get work. This system is really unacceptable and must be eliminated because the citizen must now pay both the labour broker and the government just because she or he is working.

The fact is we are burdened to the point where jobs are becoming inaccessible and this will lead to future recessions that will quantify within the next 5 years. If jobs are to become inaccessible, the TAX ratio will diminish to the point where government will be unable to generate money. It is a self-defeating system and by its nature there will be no future for all races involved.

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BBBEE_CompSpec (23-Nov-09)

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## sterne.law@gmail.com

Perhaps it is an indictment of the private sector BUT the private sector reports to shareholders and IS the economy. Government is not a business, though it should be, there in board no accountability and they start with budgets that are negative anyway so underperforming and shareholder value are not criterie now are they?

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BBBEE_CompSpec (23-Nov-09), Dave A (24-Nov-09)

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## tec0

Despite all arguments South Africa is facing a total skills loss within the next 5 years. No matter what training system is emplaced it will not be able to function due to corruption and funding. So what is wrong with the Mining Community, Steel Manufacturing Community, Eskom, Telkom, and Government?

I know for a fact that power-players are forcing people to work for less money because of the economic instability factor. Still skills development bodies will only accept applicants that is sponsored by companies and mining groups. They will NOT allow individuals to do their trade. âTo my knowledge this is still true to this day.â 

I must also mention that skills development programs that are sponsored by Government remains race based... So equality is a commercial fallacy and exploitation from the companyâs side is clearly visible to every single employee! Now how can there be a future? 

The answer is simple; I predict that we will see more outsourcing to the point where all high paying jobs will be contracted-out to other countries. Again this will reflect negatively on our economy thus I cannot see the upside of this system but this IS the system that is enforced right now and we can only wonder what the outcome will be...  :No:

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## sterne.law@gmail.com

News out on this case is that the Captain has one the case and been re-instated retrospectively with back pay in her new position.
 :Thumbup:

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Dave A (01-Mar-10)

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