The Commission reiterates its commitment in holding the State accountable for implementing the ICERD, and its provisions on special measures. In its parallel report to the CERD, the Commission expressed concern with the persistence of inequality in South Africa. In repeating its position contained in the SAHRC’s 2017/18 Equality Report, the Commission noted that measures, such as the Employment Equity Act, are not being effectively implemented. Specifically, the omission by the State to amend the definitions of designated groups in the Act to include more nuanced factors that aid the assessment of multiple forms of disadvantage that vulnerable groups continue to experience, as previously recommended by the SAHRC, formed part of the Commission’s parallel report to the Committee. To this extent, the Commission informed the Committee that the State was still not in compliance with the CERD concluding observations. The Commission has therefore not deviated from its position.

The Commission’s consistent position about the continued need for special measures to achieve real transformation has not been altered. Achieving real transformation will entail the application of mechanisms such as the Employment Equity Act and it is within this context that the proposed introduction of numerical targets has been welcomed. However, the numerical targets alone will not achieve transformation and it remains a concern for the Commission that they should not have the ultimate effect of creating new imbalances and patterns of inequality. This was also expressed by the Commission in its legislative submissions to the Employment Equity Amendment Act.

The Commission highlights that in 2019, the Labour Court, in the case of Solidarity v Minister of Labour and Others (2019), dismissed Solidarity’s application, finding that their interpretation of the SAHRC’s 2017/18 Equality Report was incorrect. The Court provided that there is no statutory or other regulatory provision that “renders the Equality Report binding on government or any other party.”

The Commission is keen to ensure that its position on special measures should be understood by all. In order to address this and other matters, the SAHRC will engage directly with Solidarity in the new year to discuss the Commission’s stance on affirmative action and other issues. In the meantime, the Commission eagerly awaits the CERD Concluding Observations on South Africa’s implementation of ICERD.

Ends

Issued by the South African Human Rights Commission

Wisani Baloyi – Acting Communications Coordinator Tel: 081 016 8308 This email address is being protected from spambots. You need JavaScript enabled to view it.