The government has said the president intends to sign the amended Employment Equality Act into law in early September, but the Solidarity trade union movement says it will go to court to force a review of the Act. “The proposed amendment to the Act that racial targeting would be imposed on sectors would have disastrous consequences for our economy. In many cases, this would deprive those lucky enough to keep their jobs of promotion. This will mean that the outflow of skills to other countries will only accelerate, and South Africa’s economy – like its public service – will become increasingly trapped in a spiral of inefficiency, cutbacks and inevitable collapse. The state’s obsession with race must be resisted at all costs. We simply cannot afford not to do this,” says Dr. Dirk German, executive director of Solidarity. This article was first published by Politicsweb.- Sandra Lawrence

Solidarity to sue if president signs new race law

Anton van der Beil

Solidarity has warned President Cyril Ramaphosa in a letter not to sign the amended Employment Equality Act and to send it for revision. But if the president signs the law, Solidarity says it will have to go to court to once again force the government to do the right thing and revise the law. This happened after the government announced that the president intends to sign the amended law in early September.

Solidarity believes that this law is unconstitutional and, moreover, directly contradicts a previous finding by the South African Human Rights Commission (SAHRC) that racial legislation in South Africa, even in its current form, is unconstitutional and appears inconsistent with international norms and values.

“It’s incredible to see how far this government is willing to go to deliver on its agenda. This Act, as amended, goes against the Constitution and what is good for South African society,” said Dr. Dirk Herman, Solidarity’s Executive Director. “It ignores established international conventions to which South Africa is a party and even calls into question the mandate of the President to act in accordance with the Constitution.”

Solidarity further states that the president has the authority to question the constitutionality of the proposed law and has the right to refer it to parliament. According to “Solidarity”, this is indeed not only the power of the president, but also the responsibility according to the Constitution to every citizen of South Africa.

“The proposed amendment to the Act that racial targeting would be imposed on sectors would have disastrous consequences for our economy. In many cases, this would deprive those lucky enough to keep their jobs of promotion. This will mean that the outflow of skills to other countries will only accelerate, and South Africa’s economy – like its public service – will become increasingly trapped in a spiral of inefficiency, cutbacks and inevitable collapse. The state’s obsession with race must be resisted at all costs. We just can’t afford not to do that,” Herman said.

Solidarity also makes it clear that it will not hesitate to sue if this amended racial law is passed in its current form.

“If there is no intervention, this government will continue the policy of inefficient centralization and will even go so far as to take over HR functions in organizations. This letter to the President is a last resort that should not be necessary in a functioning democracy. If the president does not meet our demands, “Solidarity” will sue him in order to enforce the constitutionality through the court,” Herman concluded.

Serfontaine Viljoen and Swart

Lawyers, lawyers and notaries

Our reference: Mr. Klaassen/Mr. Venter/fb/CS0541

Date: August 23, 2022

TO: THE PRESIDENT OF THE PARISH REPUBLIC

Attention: PRESIDENT CYRIL RAMOPHOSA

UNION BUILDING

GOVERNMENT AVENUE

PRETORIA

BY EMAIL:

Dear Mr. President,

AT ISSUE: CONSIDERATION OF THE EQUAL EMPLOYMENT AMENDMENT BILL [B14 —

20201

1.  We refer to the above matter and confirm that we act herein on behalf of Solidarity, a

trade union duly registered in accordance with the relevant provisions of the LRA (Solidarity).

2.  We understand from Parliament’s website that the Employment Equity Amendment Bill,

2020 [B14-2020] (Bill) which seeks to amend the Employment Equality Act 55 of 1998 (EEA) has been submitted to you for signature. Purpose of this correspondence:

2.1. bring to the President’s attention concerns about the constitutionality of the bill;

2.2. emphasize that the President has the right to challenge the constitutionality

the bill presented to him for signature, pursuant to his duty to support, protect and respect Act 108 of the Constitution of the Republic of South Africa 1996 (the Constitution); and

2.3. call on the President to exercise his powers under Section 79 of the Constitution.

3. Regarding the constitutionality of the draft law, we attach the following comments

“Solidarity” was introduced to the Committee on Employment and Labor (Committee) as a precursor to the Bill’s Committee consideration. We do not intend to debunk the material presented here, but we do ask that you take the analysis presented seriously.

4. The submissions emphasize the importance of a balanced approach to affirmative action in order to withstand constitutional scrutiny, and they discuss in some detail the problems with the Bill from an international law perspective, and in particular concerns regarding South Africa’s compliance with the International Law Convention on the Elimination of All Forms of Racial Discrimination (CRPD), which South Africa ratified on December 10, 1998.

In addition, the submissions examine a report by the South African Human Rights Commission (SAHRC), which opined that the EAW is unconstitutional and recommended amendments not reflected in the bill. Indeed, the bill moves in the opposite direction from what was proposed for consideration by the SHRC, as fully discussed in the submissions. Introduction of sectoral moves of “targets”. The EEA is closer to adopting quotas, and the proposed Section 15A of the EEA appears to give the Minister of Labor unlimited powers, which is problematic from a constitutional point of view.

5. “Solidarity” not only made these written statements, but also made an oral statement to the Portfolio Committee. As far as Solidarity can find out, the applications were rejected and the bill passed through parliament without amendment.

6. The President is the last resort. Under Section 79(1) of the Constitution, the President must either assent to and sign the Bill as passed, or “If the President has objections to the constitutionality of the bill, refer it to the National Assembly for reconsideration”: We call on the President to consider the submissions on the constitutionality of the draft law, which are attached to this document, and to send the draft bill for reconsideration taking into account the expressed problems. To do otherwise would be to shrug off the constitutional duty in section 79(1).

7. We hope you find everything above in order

Sincerely yours,

SERFONTAIN, VILLOEN AND SWART

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