The recently proposed amendments to the Employment Equity Act (‘EEA’) created much discussion and concern. The concern arose from both the substance of some of the proposals and the poor manner in which they were drafted. For now it would appear that the proposed changes (as well as proposed changes to the LRA and the BCEA) will not be promulgated in their current form. We are likely to see, at some point in the not too distant future, better considered and drafted proposals for change. One can expect that greater emphasis would be placed on employers’ obligations regarding affirmative action in terms of Chapter 3 of the EEA. The main focus of this article is to give a brief overview of what the courts have said to date about affirmative action, its limits and its implementation. But first, it might be useful to provide some context.

Statistics from last year’s Employment Equity report by the Employment Equity Commission, established under the EEA, suggest that while good progress has been made in terms of representation of designated groups at most levels in the private sector, there has been slow progress at the more senior levels. While some (including people in the Department of Labour) have blamed business for being ‘anti-transformation’ or at least tardy in their commitment to affirmative action, there is reason to believe that our skills shortage at those senior levels is real and could provide at least part of the answer to the lack of transformation at the top of the organisational pyramid. A report in Sake24 dated 11 May 2011, quoting statistics from Adcorp’s Recruitment Index, states that roughly 829 800 vacancies existed in SA  for ‘highly skilled’ employees. This includes positions in management , accounting, medicine, engineering, law, specialised technicians and artisans. This contrasts with unemployment figures of roughly 967 000 and 247 400 among entry level job  seekers and domestic workers, respectively.

Since 2000, the shortage of highly skilled employees has resulted in an inflation adjusted increase of 286.4% in the salaries of people in that category – scarce skills simply became more expensive. Meanwhile, the National Skills Fund is reportedly sitting on roughly R3.5 billion for skills development which it has yet to distribute.

What all of this means is that employers in the private sector will have to contend with two opposing pressures, one coming from organised labour and government for quicker transformation and the other from the labour market. This is likely to result not only in greater and more frequent demands from trade unions in particular, but probably also an increase in the Department of Labour’s vigilance and in litigation around affirmative action issues.

So what have the courts said so far about affirmative action? The following is a summary of the principles the courts have developed in the numerous cases over the years dealing with affirmative action:

• Those acting in a higher position do not have a right to be promoted to that position, but must be treated fairly;
• Where internal applicants are involved, the decision not to appoint them must comply with internal procedures and be based on rational grounds, e.g. suitability, skills or promotion of representivity;
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