Along colour lines: a challenge to transformation in South African sports

Earlier this year the Minister of Sports and Recreation banned four of South Africa’s major sporting federations from hosting or bidding for international tournaments based on their alleged failure to meet transformation targets. Civil rights group AfriForum and trade union Solidarity claim that the Minister’s decision is contrary to law. They cite the Employment Equity Act, 1995 (EEA) and the National Sports and Recreation Act, 1998 in support of their argument.

The two groups recently announced that they would seek relief from the Labour Court to set aside the South African Rugby Union’s (SARU) Strategic Transformation Plan as well as the Transformation Charter for South African Sport, which contains government’s transformation targets for sport (the Charters), alleging that these amount to a quota system and are accordingly prohibited by the EEA. While it is always difficult to predict the outcome of legal challenges of this nature, it is still possible to discuss the approach that the courts are likely to adopt to determine whether the Charters offend the letter and spirit of the EEA. This can be done by reference to the EEA itself and, most importantly, to judgments in which the courts have had to grapple with similar challenges.

Starting with the EEA itself, its purpose is to achieve equality in the workplace by promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination and the implementation of affirmative action in favour of designated groups. Section 15(3) of the EEA provides that while affirmative action measures applied by employers may include preferential treatment and numerical goals, quotas must be excluded from such measures. However, the EEA does not define “quotas”.

The Constitutional Court in SAPS v Solidarity obo Barnard declined to provide a definition of quota but it noted that quotas amount to job reservation and it for this reason that they are prohibited by section 15(3) of the EEA. The Court went on to hold that affirmative action measures must be carefully formulated so as not to impugn the dignity of all concerned. Measures ought not to be punitive or retaliatory. It was further held that whether a restitutionary measure complies with the Constitution is dependent on whether it targets a class of people who have been subjected to unfair discrimination, whether it is designed to protect or enhance such people and whether it promotes the achievement of equality. In these circumstances, plans which serve the purpose of advancing previously disadvantaged individuals and which are applied flexibly would pass constitutional muster.

The Labour Appeal Court grappled with the meaning of “quota”. In Solidarity & others v Department of Correctional Services & others it held that the key distinction between a quota and numerical targets for purposes of the EEA is based on the flexibility of a particular mechanism. In this regard it held that an employment equity plan containing an inflexible set of numbers which an employer would be required to comply with “come what may” would constitute a quota. This would therefore be in breach of section 15(3) of the EEA and be subject to being struck down.

This definition of “quota” was confirmed by the Labour Court in the recent judgment of Solidarity obo Pretorius v City of Tshwane Municipality and another. It was held that by its nature, equality presupposes a measurable result and that simply relying on numbers without a measurable goal constitutes a subjective barrier or form of quota which is to the exclusion of persons from the relevant designated or non-designated group.

SARU’s Strategic Transformation Plan specifically provides that its transformation targets are based on the Department of Sport and Recreation’s target that at least 50% of a team must be Black in order for it to be regarded as having been transformed. Half of this 50% representation must be Black African to meet the set targets. The government’s Transformation Charter, on the other hand, does not explicitly set out such numerical targets but rather notes that the quota system still has a role to play in the transformation of South African sport. It goes on to state that retaining the principles of the quota system will be based on a holistic and developmental approach across sports and that the system will be reviewed annually.

In order for AfriForum and Solidarity to succeed with their quota challenge in the Labour Court they will need to focus on the nature of implementation of the Charters by SARU and the government. It will have to be shown that the Charters are so inflexible that they cannot rationally be applied without being inherently discriminatory. The two groups may also decide to rely on the fact that Minister’s ban against the four sporting federations is punitive and retaliatory in nature and is therefore contrary to the purpose of the EEA. Whichever avenue AfriForum and Solidarity take in challenging this issue, the outcome of the process is likely to have a dramatic effect on the landscape of South African sport.