Coloureds also faced discrimination during Apartheid: Solidarity

An argument over whether coloureds received the same discrimination as blacks during apartheid became emotional in the Labour Appeal Court in Cape Town.

The court, sitting in the Western Cape High Court, was hearing an appeal by the correctional services department, which argued that its Employment Equity (EE) plan was sound and constitutionally valid.

The department was appealing a 2013 Labour Court ruling that it consider both national and regional demographics in recruiting and promoting staff.

Trade union Solidarity had approached the court after 10 employees, nine of them coloured, were overlooked for appointment on the basis of affirmative action.

Martin Brassey, for Solidarity, argued that the EE plan was inflexible and could not fully rehabilitate past disadvantages.

He said the department's national commissioner could deviate from racial appointment targets. However, this was only in the case of scarce skills or critical positions and not for individual factors such as race or experience.

Marumo Moerane, for the department, said there were degrees of disadvantage and this needed to be factored into numerical targets for staff.

"In order to deal with those who were disadvantaged by apartheid laws, you often have to refer to those who were advantaged. It is part of the context," he said.

Judge Dennis Davis said dignity played a role in reaching the goal of a non-racial, non-sexist society.

He said he personally found it offensive and "gut-wrenching" to have to tell coloured people they were not treated as badly as black people, when in fact they had been subjected to all the brutality of apartheid.

Moerane said it was a reality that there were degrees of discrimination.

"I am not sure that takes away the hurt or offence to dignity to those who were unquestionably discriminated against, come what may," Davis replied.

The court resounded with murmurs of agreement from the benches, largely packed with coloured people.

Davis, as well as Judges Basheer Wagley and Nomonde Mngqibisa-Thusi concurred that the case presented difficult questions.

Moerane agreed that interests needed to be balanced.

"In the final analysis, the Constitution and the Employment Equity Act behove us and command us to do that balancing and in particular, to attempt to redress those imbalances," he said.

On regional demographics, he submitted the department was a national employer and should set targets based on national demographics.

The plan's rationality was that there was an over-representation of coloureds in the Western Cape.

Solidarity was cross-appealing the initial Labour Court judgment to the extent that it did not compensate its members who had been discriminated against.