A court case which could mean the end of affirmative action based on race in South Africa begins in the Labour Court on Wednesday.

Trade union Solidarity will ask the court to force the government to implement the recommendations of the South African Human Rights Commission (SAHRC) on equality.

According to the SAHRC, certain parts of the Employment Equity Act (EEA) do not comply with the Constitution and international conventions.

“The employment Equity Act’s definition of designated groups is not in compliance with constitutional or international law obligations,” the SAHRC equality report states.

As affirmative action is currently applied, it favours qualified people from designated groups to make the workplace more representative and fair.

In South Africa, the designated groups are black people – black, coloured, and Indian people – women, and people with disabilities.

Solidarity believes this court case will change the race-based classification of designated groups and signal the end of affirmative action as it currently stands.

SAHRC Equality Report

The SAHRC recommended that the Employment Equity Act be amended and said the government must give feedback on this amendment within six months after the release of its report.

According to Solidarity, the government has not complied with the SAHRC’s recommendations, which is why it is asking the court to ratify the SAHRC’s recommendations.

Solidarity COO Dirk Hermann said the gist of the SAHRC report is that affirmative action should be applied in a more nuanced way.

Hermann said that the way in which affirmative action is currently applied gives rise to the practice of race quotas, which Solidarity is opposing.

CERD report

The SAHRC report followed a 2017 request by Solidarity to formally investigate black economic empowerment and affirmative action legislation.

This request came after the United Nations’ Committee on the Elimination of all forms of Racial Discrimination (CERD) had criticised South Africa’s racial classification system in a report.

According to the report, CERD was concerned that South Africa is making use of apartheid-era racial classification in its employment policies.

CERD recommended that the South African government report on the impact affirmative action has on labour, education, public, and political matters.

The government also had to report on the impact of affirmative action on those persons affected by it.

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