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[2020] ZAWCHC 51
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Cape Bar v Minister of Justice and Correctional Services and Others (9435/19) [2020] ZAWCHC 51; [2020] 3 All SA 413 (WCC); 2020 (6) SA 165 (WCC) (10 June 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No.: 9435/19
and
IN THE EQUALITY COURT
OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.: EC12/2019
In
the matter between:
THE
CAPE BAR
Applicant
and
MINISTER
OF JUSTICE
AND
First
Respondent
CORRECTIONAL
SERVICES
LEGAL
PRACTICE COUNCIL
Second Respondent
WESTERN
CAPE PROVINCIAL
LEGAL
PRACTICE COUNCIL
Third
Respondent
JEREMY
JOHN GAUNTLETT SC QC
Fourth
Respondent
KARRISHA
PILLAY
Fifth
Respondent
LOUISE
BUIKMAN SC
Sixth
Respondent
ANDRE
CLIVE
PARIES
Seventh
Respondent
REHANA
KHAN PARKER
Eighth
Respondent
MEERUSHINI
GOVENDER
Ninth
Respondent
GODWIN
THEO BOSSR
Tenth
Respondent
MENDEL
YRIEL SASS
Eleventh
Respondent
ODETTE
HELENA GELDENHUYS
Twelfth Respondent
GEORGE
MORRISON VAN NIEKERK
Thirteenth
Respondent
NCUMISA
THOKO MAYOSI
Fourteenth Respondent
THE
NATIONAL BAR COUNCIL OF
First Amicus Curiae
SOUTH
AFRICA
SAKELIGA
NPC
Second
Amicus Curiae
NATIONAL
ASSOCIATION OF
Third Amicus Curiae
DEMOCRATIC
LAWYERS
LAW
SOCIETY OF SOUTH AFRICA
Fourth
Amicus Curiae
BLACK
LAWYERS ASSOCIATION
Fifth Amicus Curiae
Coram
:
Mabindla-Boqwana and Papier JJ
Delivered
electronically by email to the parties and amici, and released to
SAFLII on 10 June 2020.
JUDGMENT
MABINDLA-BOQWANA and
PAPIER JJ
Introduction
[1]
The case before us concerns questions of
equality, transformation, restructuring and representation in the
provincial governing
structures of the legal profession. The
applicant (“the Cape Bar”) challenges the
constitutionality of the Regulations
and Rules published under the
new Legal Practice Act 28 of 2014 (“the Act”),
legislation that ushers in a new dispensation
of transforming,
unifying, governing and regulating the legal profession in South
Africa.
[2]
In the Preamble, the Act records the
reality of the legal profession before its coming into operation.
The profession was
fragmented, regulated by different laws
applicable in different parts of the country, and it was divided.
The legal profession
is not broadly representative of the
demographics of South Africa. Opportunities for entry into the legal
profession had been for
decades restricted by the legislative
framework, and social and educational constraints that existed. Most
importantly, access
to legal services is still not a reality for most
South Africans. In order to deal with these challenges, and
others, a single
statutory dispensation provides a legislative
framework geared at,
inter alia
,
transforming and restructuring the governance and regulation of the
legal profession, that is broadly representative of the demographics
of South Africa, under a single national regulatory body, the South
African Legal Practice Council (“the Council”).
At
provincial level the Act provides for Provincial Councils. It
is the provisions relating to the composition of Provincial
Councils
that are the subject of attack by the Cape Bar.
[3]
It is without dispute that both the
advocates’ and the attorneys’ professions have been, and
are still, dominated by
white men. Transformation of the legal
profession has been a goal that has eluded the South African society
since the dawn
of our democracy, and is an area of challenge that our
society has struggled to make significant strides in. The first
respondent
(“the Minister”), sets out the detailed
statistics showing the lack of transformation, which do not reflect
well on
the profession. He also gives a historical account of
gender and racial composition in various Bar Councils since the early
1980s to 2000s, to illustrate the slow pace of change.
[4]
The Cape Bar has fairly accepted this
account and the criticism levelled against it for the skewed
representation. It however
contends that it is committed to
seeing that changing, and this application is necessarily brought
with that in mind. This
being so, it contends that the
Regulations and Rules which were introduced as measures to enable the
transformation of the profession,
are inimical to that very
objective.
[5]
The Cape Bar is a constituent member of the
General Bar Council of South Africa (“the GCB”) and a
voluntary association
of practising advocates in the Western Cape.
It brought the challenge of unfair discrimination in the
Equality Court under
the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000 (“the Equality Act”),
and simultaneously
a review under the Promotion of Administrative
Justice Act 3 of 2000 (“PAJA”), alternatively in terms of
the doctrine
of legality. If the former is found not to apply,
it seeks an order for the respective provisions to be declared
unlawful
and invalid, to the extent they impose inflexible quotas for
the composition of the third respondent (“the WC Provincial
Council”) on the basis of gender and race. Parties agreed
to consolidate the matters and we accordingly sit as both
the
Equality Court and the High Court respectively.
[6]
Save for the Minister, the second
respondent (“the LPC”) and the seventh respondent, Mr
Paries, who oppose the application,
all other respondents abide the
decision of the Court. For convenience we collectively refer to
the opposing respondents
as “respondents”. Various
amici
participated in the proceedings by agreement between the parties.
The majority of them support the case of the respondents,
but
for the Black Lawyers Association (“the BLA”) and
Sakeliga NPC (“Sakeliga”).
[7]
The matter was brought as an urgent
application, but the parties requested for it to be postponed on
various occasions for numerous
reasons, including for the further
filing of papers, written argument and readiness. By the time
the matter was argued before
us, urgency was no longer a live issue.
[8]
The Cape Bar challenges two sets of
provisions governing the elections of Provincial Councils of the
Council, namely, Regulations
4 (3) and 4 (4) of the Regulations under
section 109 (1) (A) of the Act, as published under GNR. 921 in GG
41879 dated 31 August
2018 by the Minister (“the Regulations”),
as well as Rule 16.15.3 of the Rules published in terms of sections
95 (1),
95 (3) and 109 (2) of the Act under GN 401 in GG 41781 dated
20 July 2018 and substituted by General Notice 812 on 21 December
2018 (“the Rules”), read with the ballot paper which is
attached to the Council’s rules as Schedule 1B. The
Regulations require 50% of the Provincial Council to be male and 50%
to be female. It also sets out a table of how composition
of
Provincial Councils will be structured in each province. In
essence the provisions create 6 seats for attorneys (8 in
Gauteng)
and 4 seats for advocates in each Provincial Council. The 4
seats for advocates, in terms of the Rules, must be
composed of one
white male, one white female, one black male and one black female.
[9]
The Cape Bar submits that these provisions
comprise a formula which is rigid and, while it is ostensibly aimed
at affirming black
and female representation in order to rectify past
and present discrimination, it caps such representation, which is
inimical to
that well-intentioned objective. By having this
sort of capping, so argues the Cape Bar, one lands up protecting
positions
for white and male advocates. In this case a white
man received the majority of votes. Had he received the least
votes
of the other candidates who are not white males, but the most
in his category, he would have displaced female and black candidates
who obtained more votes, something that has happened in other
provinces. The Cape Bar objects to a rigid formula that
reserves
a seat for a white man regardless of the outcome of the
votes and what the electorate says. It must be stated at the
outset
that the Court is not required to choose the best electoral
system available. It is not for the Court to impose a measure
that it deems would have been the most appropriate or which it would
prefer in the circumstances. The Court is called upon to assess
whether the electoral scheme chosen passes constitutional muster.
If the Court were to do the former, it would be trenching
impermissibly into the province of another arm of the state.
Legal and regulatory
framework
[10]
The purpose of the Act is, inter alia to:
“
(a)
provide a legislative framework for the transformation and
restructuring of the legal profession
that embraces the values
underpinning the Constitution and ensures that the rule of law is
upheld; …
(b)
broaden access to justice by putting in place –
…
..
(iii)
measures that provide equal opportunities for all aspirant legal
practitioners in order
to have a legal profession that broadly
reflects the demographics of the Republic;
(c)
create a single unified statutory body to regulate the affairs of all
legal practitioners
and all candidate legal practitioners in pursuit
of the goal of an accountable, efficient and independent legal
profession; ...”
[11]
The
Act establishes the Council as a body that exercises jurisdiction
over all legal practitioners and candidate legal practitioners,
including advocates and attorneys.
[1]
Its objects, as listed in section 5, are, among others, to:
“
(a)
facilitate the realisation of the goal of a
transformed
and restructured legal profession
that is accountable, efficient and independent;
…
(i)
promote access to the legal
profession, in pursuit of a legal profession that broadly reflects
the demographics of the Republic;
…
(l)
give effect to the provisions of
this Act in order to achieve the purpose of this Act, as set out in
section 3.”
(Own
emphasis)
[12]
In terms of section 7 (1) the Council
consists of the following members:
“
(1)
….
(a)
16 legal practitioners, comprising
of 10 practising attorneys and six practising advocates, elected in
accordance with the procedure
prescribed by the Minister –
(i)
in terms of section 97(1)(a)(i)
[2]
or
(ii) in terms of this
section, in consultation with the Council, if the procedure referred
to in subparagraph (i) requires revision
after the commencement of
Chapter 2;
(b)
two teachers of law, one being a
dean of a faculty of law at a university in the Republic and the
other being a teacher of law,
designated in the prescribed manner;
(c)
subject to subsection (3), three fit
and proper persons designated by the Minister, who, in the opinion of
the Minister and by virtue
of their knowledge and experience, are
able to assist the Council in achieving its objects;
(d)
one person designated by the Legal
Aid Board; and
(e)
one
person designated by the Board
[3]
,
who need not necessarily be a legal practitioner.
(2) When constituting
the Council the following factors must, as far as is practicable, be
taken into account:
(a)
the racial and gender composition of South Africa
;
(b)
the objects of the Council;
(c)
representation of persons with disabilities;
(d)
provincial representation; and
(e)
experience and knowledge of –
(i)
the provision of legal services;
(ii)
the principles of promoting access to justice;
(iii)
legal education and training;
(iv)
consumer affairs;
(v)
civil and criminal proceedings and the functioning of the courts and
tribunals in
general;
(vi)
the maintenance of professional standards of persons who provide
legal
services;
(vii)
the handling of complaints; and
(viii)
competition law.
…
.”
(Own emphasis.)
[13]
Section 23 deals with the establishment of
Provincial Councils, and provides that:
(1) The Council must
establish Provincial Councils the areas of jurisdiction of which must
correspond with the areas under the jurisdiction
of the Divisions of
the High Court of South Africa as determined by the Minister, from
time to time, in terms of section 6 (3)
of the Superior Courts Act,
2013 (Act No. 10 of 2013), and may delegate to the Provincial
Councils such powers and functions which,
in the interests of the
legal profession are better performed at provincial level.
(3)
The Provincial Councils must carry out any powers and perform any
functions as may
be determined by the Council or set out in this Act.
(4)
Provincial Councils must be elected in accordance with a procedure
determined by the
Council in the rules.
(5) Provincial
Councils must be constituted in such a manner so as to reflect the
proportion of attorneys and advocates in the area
of jurisdiction of
the Provincial Council concerned.”
[14]
Section 97 embodied the terms of reference
of the National Forum, and in terms of section 97 (1) (a) (ii) and
(iii), the National
Forum was obliged to make, inter alia, the
following recommendations to the Minister:
“
(ii)
the establishment of the Provincial
Councils;
(iii)
the composition, powers and
functions of the Provincial Councils
;
…
.”
(Own emphasis.)
[15]
In terms of section 97 (1) (c), the
National Forum (an interim body established in terms of section 96 of
the Act) was empowered
to make rules as provided in section 109 (2)
for publication in the Government Gazette within 24 months after the
commencement
of Chapter 10, and also in terms of section 109 (3) of
the Act prior to the commencement of Chapter 2. In terms of section
96 of
the Act, the National Forum would comprise, amongst others, 16
legal practitioners drawn from a prescribed number of both attorneys
and advocates, a teacher of law, a person from Legal Aid, a person
from the Legal Practitioners Fidelity Fund Board (“the
Fidelity
Fund”), and persons designated by the Minister. Most
importantly the National Forum was required to reflect the
racial and
gender composition of South Africa, representation of persons with
disabilities and provincial representation.
[16]
Section 109 (1) (a) empowers the Minister
to make regulations, in consultation with the National Forum, within
six months after
receiving recommendations from the National Forum in
terms of section 97 (1) (a). As previously mentioned, Regulations
under section
109 (1) (a) were duly published on 31 August 2018.
Regulation 2 deals with the election procedure for election of
legal practitioners
for purposes of constituting a Council.
[17]
Instructively, Annexure B of Regulation 2,
dealing with the ballot paper in respect of the advocates for the
election of members
of the Council, contains the following
inscription:
“
Please
note that in order to comply with section 7 (2) (a) of the Legal
Practice Act, 2014 (Act No. 28 of 2014) and subject to the
availability of the candidates,
two
black women, two black men, one white woman and one white man with
the highest number of votes in their respective categories
will constitute the six advocates who will serve as members of the
South African Legal Practice Council (‘Council’).”
(Own emphasis.)
[18]
It further repeats the factors listed in
section 7 (2) to be considered when the Council is constituted.
The term ‘Black’
is given the same meaning as in section
1 of the Broad-Based Black Economic Empowerment Act 53 of 2003
(“BBEEA”), read
with the Broad-Based Economic Empowerment
Amendment Act 46 of 2013, and that generically refers to Africans,
Coloureds and Indians.
[19]
Regulation 3 deals with the establishment
of Provincial Councils, while Regulation 4 provides for the
composition of Provincial
Councils. In terms of Regulation 4
(1) Provincial Councils in each of the provinces, except for Gauteng,
must consist of
ten legal practitioners each. Gauteng will
consist of twelve (Regulation 4 (2)).
[20]
The impugned Regulations 4 (3) and 4 (4)
stipulate the following:
“ …
(3)
The composition of the Provincial Councils is as set out in the table
below.
(4)
Fifty percent
of the legal practitioners serving on any
Provincial Council must be
female
and
fifty per cent must
be male
.
Table:
Composition of Provincial Councils
Eastern Cape
Provincial Council
Free State Provincial
Council
Gauteng Provincial
Council
KwaZulu-Natal
Provincial Council
Limpopo
Provincial Council
Mpumalanga
Provincial Council
Northern Cape
Provincial Council
North
West
Provincial Council
Western Cape
Provincial Council
Attorneys-Black
4
4
4
4
4
4
4
4
4
Attorneys-White
2
2
4
2
2
2
2
2
2
Advocates - Black
2
2
2
2
2
2
2
2
2
Advocates - White
2
2
2
2
2
2
2
2
2
Total Legal
Practitioners
10
10
12
10
10
10
10
10
10
(Own
emphasis.)
[21]
The powers and functions of the Provincial
Council are stipulated in Regulation 5 (2). They are mainly
administrative and
procedural in nature and need not be repeated.
[22]
As contemplated in section 23 (4), read
with section 95 (1) (j), the Council devised a procedure for the
election of Provincial
Councils. Rule 16 contains such a
procedure. Rule 16.15.3 is the Rule that is being challenged.
It states the
following:
“
16.15
If the number of eligible candidates who are nominated exceeds the
number to be elected as attorney members or as advocate
members, as
the case may be, the Council must, within 10 days after the last day
on which nominations are required to be lodged
in terms of rule 16.9,
publish on the Council’s website and send by email to every
legal practitioner eligible to vote, to
the legal practitioner’s
email address or, where the legal practitioner has not appointed an
email address, by telefax –
…
16.15.3
a ballot paper, substantially in the form of Schedule 1A (in the case
of the election of attorney members) or
Schedule
1B (in the case of the election of advocate members)
,
containing the surnames and forenames in alphabetical order by
surname of the nominated candidates and providing the information
indicated in Schedule 1A or Schedule 1B, as the case may be, and
nothing more; …
”
(Own
emphasis.)
[23]
Schedule 1B reads thus:
“
Every
advocate who is on the roll of practising advocates and who practises
within the area of jurisdiction of the Provincial Council
may
vote
for a maximum of four candidates from the candidates listed below
.
Please note, however, that
in
order to achieve an appropriate balance of race and gender in
relation to the composition of the Provincial Council
,
and subject to the availability of candidates, the following
individuals will constitute the four advocates who will serve as
members of the Provincial Council:
1 the
black woman
with the highest number of votes in this category;
2 the
black male
with the highest number of votes in this category;
3 the
white woman
with the highest number of votes in this category;
4 the
white male
with the highest number of votes in this category
…
When voting, please
take into account the following considerations in relation to the
constitution of the Provincial Council:
(a)
the racial and gender composition
of South Africa
;
(b)
representation of persons with disabilities; and
(c)
experience and knowledge of
—
(i)
the provision of legal services;
(ii) the
principles of promoting access to justice;
(iii) legal
education and training;
(iv) consumer
affairs;
(v) civil
and criminal proceedings and the functioning of the courts and
tribunals in general;
(vi) the
maintenance of professional standards of persons who provide legal
services;
(vii) the handling of
complaints; and
(viii)
competition law.
…
Black
is used as defined in
section 1
of the
Broad-Based Black Economic
Empowerment Act 53 of 2003
, read with the Broad-Based Black
Economic Empowerment Amendment Act 46 of 2013
as a generic term which means Africans, Coloureds and Indians who are
citizens of
the Republic of South Africa by birth or descent, or who
became citizens of the Republic of South Africa by naturalisation
before
27 April 1994 or on or after 27 April 1994 and who would have
been entitled to acquire citizenship by naturalisation prior to that
date and such other persons as may be categorised as black persons
for purposes of that legislation.
”
(Own emphasis.)
[24]
Of interest, from the above mentioned
Regulations and the respective Rules in the case of Provincial
Councils, is that they impose
quotas in both the composition of the
Council and Provincial Councils. The Cape Bar, however, does
not attack the Regulations
insofar as they create categories, place a
cap on the Council based on gender and race and guarantee a seat for
white men. It
only challenges the provisions relating to
Provincial Councils.
[25]
Chapter 2, which deals with the
establishment, powers and functions of the Council, commenced on 31
October 2018 (except for section
14). The bulk of the Act came
into force on 1 November 2018. The Council, referred to as the
“LPC” in this
judgment, was elected and constituted.
Shortly after its institution it commenced with the process of
establishing Provincial
Councils.
The process leading to
the challenge
[26]
On 11 November 2018, the LPC advised the
legal practitioners that it had resolved to proceed with elections
immediately. In
January 2019 it invited nominations for
election to the Provincial Councils. On 25 February 2019, the
LPC provided the legal
practitioners with the final list for
nominations, advising that voting would be conducted online through
an electronic platform
and would commence on 28 February 2019.
According to the Cape Bar, this electronic link did not include
instructions about the
quotas in the Rules and Regulations. This
contention is refuted by the LPC and also does not make sense,
because the ballot
paper itself contains the instructions. The
Cape Bar also states that the guidelines that were distributed about
the voting
process also did not refer to quotas.
[27]
On 28 February 2019, legal practitioners
were notified that the voting platform would be kept live until 15
March 2019. They
were also advised that “
composition
of the Provincial Council will [be] as per Regulation 4…Gazette
41879
”. The Cape Bar
queries that no explanation was given as to what that meant and that
it did not mention Rule 16.
The LPC extended the voting date to
16 March 2019. The Cape Bar was advised, after making
enquiries, that some members could
vote manually, but the LPC had not
communicated this to members. The Cape Bar is however not
challenging the process.
[28]
On 13 March 2019, the Cape Bar Council had
sent a notice to its members reminding them about the election for
the WC Provincial
Council. It advised its members, inter alia,
as follows:
“
Considering
the experience and knowledge of the candidates, the need for the LPC
to reflect the racial and gender composition of
South Africa
(s 7
(2)
(a) of the
Legal Practice Act 28 of 2014
) and the interests of the
members of the Cape Bar in coordinating their voting, the Bar Council
endorses the following four candidates:
1.
Jeremy Gauntlett SC QC
2.
Louise Buikman SC
3.
Karrisha Pillay
4.
Ncumisa Mayosi
The Bar Council cannot
bind its members to vote a certain way and does not presume to do so,
but we can play a coordinating role
which is the reason for this
endorsement.
…
.
”
[29]
On 18 March 2019, the LPC sent the results
to the practitioners, indicating that in respect of advocate
nominees, the fourth respondent,
Mr Gauntlett SC QC, had received the
most votes with the total of 164 votes; the fifth respondent, Ms
Pillay (recently appointed
as SC), had received the second most votes
with a total of 162 votes; the sixth respondent, Ms Buikman SC, had
received the third
most votes with 149 votes; the fourteenth
respondent, Ms Mayosi, had received the fourth most votes with 138
votes; Mr William
John Downer SC had received the fifth most votes
with 44 votes; and Mr Paries had received the sixth most votes with
30 votes.
[30]
The elected candidates were announced as Ms
Pillay in the first place, Mr Paries, second, Ms Buikman, third, and
Mr Gauntlett in
the fourth place. This, according to the Cape
Bar, was done without any explanation, but upon closer scrutiny of
the Rules
and Regulations they realised that this result flowed from
the application of the Rules, which had never been mentioned at any
stage before, and had been referred to in passing in communication
from the LPC about the Provincial Council elections.
[31]
Ms Pillay was declared elected as the black
woman (category 1) with most votes in that category, Mr Paries was
declared elected
as the black man (category 2) with most votes
(albeit according to the Cape Bar he only received 30 votes), Ms
Buikman was declared
elected as the white woman (category 3) with
most votes in that category, and Mr Gauntlett was declared elected as
the white man
(category 4) with most votes in that category.
The Issue
[32]
According to the Cape Bar, while it
welcomes the mechanism to ensure representation of black people and
women on the Provincial
Council and the intention behind the Rules
and Regulations, following the elections, the practical consequence
of the impugned
provisions was a perverse one. Instead of
increasing representation of categories of people who have
historically and continue
to suffer disadvantage, the effect was to
limit their participation and to ensure representation by categories
of people who have
suffered no similar disadvantage.
[33]
Counsel
for the Cape Bar stressed the point that if the purpose of the
measure is to encourage transformation and representation,
then it
has to be a measure targeted at the problem, and the problem is not
the disadvantage of white men, they therefore do not
need positions
protected for them. The problem is particularly acute for black
women who suffer the most – the intersection
of both race and
gender. Therefore, to say that Ms Mayosi, who got far more
votes than the persons who came fifth and below,
cannot be elected
because she is a black woman and there is already one other black
woman, is both irrational and discriminates
unfairly against her.
The Cape Bar queries the election of Mr Paries, who only received 30
votes but displaced Ms Mayosi,
who had overwhelming support of her
colleagues and got overlooked because she was a black woman and not a
black man. It contends
that by capping the number of
representatives in relation to Black people and women and reserving a
seat for a white man, the electoral
scheme is unfairly discriminatory
and fails the test devised by the Constitutional Court in
Van
Heerden
[4]
.
We deal with this issue shortly.
[34]
With regard to the review, the Cape Bar
argues that the Minister’s decision to promulgate the
Regulations, the National Forum’s
decision to promulgate the
impugned Rules and the LPC’s application of the Rules, all
constitute administrative action under
PAJA. If PAJA applies,
condonation is sought under
section 7(1)
of PAJA, for challenging the
Regulations and Rules more than 180 days after they were promulgated.
The Cape Bar contends
that the scheme is irrational,
unreasonable and arbitrary, because it does not ensure representation
of Black people and women
but instead acts as job reservation for
White people and men. Lastly, the Regulations are
ultra
vires
because the Minister had no power
to determine an election procedure for the Provincial Councils, that
power fell to the Council
itself in terms of
sections 23
(4) and
95
(1) (j). The Cape Bar is of the view that as for the remedy,
the court should declare the impugned Regulations and Rules
to be
unconstitutional and unlawful; find that the latter order does not
affect the validity of the decisions taken by the Council;
and that
Ms Mayosi should replace Mr Parries, as it would reflect the actual
democratic mandate of the advocates who voted in the
election. It
would reflect an order to make specific opportunities and privileges
unfairly denied in the circumstances, available
to Ms Mayosi.
[35]
While the BLA questions the Cape Bar’s
motives in bringing this application, and is critical of its posture
on transformation
in general, as well as the remedy it pursues
insofar as it seeks the replacement of Mr Paries by Ms Mayosi, the
BLA is of the view
that the Regulations and the Rules as they stand,
perpetuate white male dominance, they do not advance transformation
by capping
the black and women representation at 50%. The BLA
asserts that the quota should be at 75% of black people and women to
truly
reflect the demographics of the Republic, which is what the Act
seeks to achieve.
[36]
The Minister, on the other hand, contends
that the Regulations promote Black practitioners who constitute a
minority in the legal
profession, and Black women who constitute an
even a smaller minority. They guarantee that Black women will
take up a seat
on the Provincial Council. The Minister argues
further that Ms Mayosi was not denied a seat because she is black
women. She
did not secure a seat because of the votes.
Furthermore, there is no preservation of seats for White men.
White men
only have one seat despite being an overwhelming
majority of the legal profession. According to the Minister,
the Cape Bar’s
case is not about protecting White men to the
disadvantage of Black women, it is about removing a Black man in
place of a Black
female. The Regulations ensure equitable
representation across racial and gender lines.
[37]
As to the discrimination point, the
Minister contends that the case should not be about how Ms Mayosi was
treated as an individual,
but about whether black women as a class
have been unfairly discriminated against. In the Minister’s
submission, black
women in the scheme are not victims of
discrimination, the Regulations do not single them out in favour of
white men, but rather,
they apply across the board to all races and
genders. Mindful of the fact that black people are in the
minority and women
in particular in the legal profession, the
Regulations seek to benefit them. In the absence of mandatory
obligations for
their representation, they would have been left out.
Ms Mayosi was not denied an opportunity to campaign and canvass
for
votes. She was permitted, as was anyone, to stand for
election. Her inability to make the Provincial Council, does
not mean black women as a group have been unfairly discriminated
against. Only four seats were available and one of those
was
for a black woman, which was secured by Ms Pillay, who got the most
votes in that category. Mr Paries secured a seat
not because as
a black man he displaced Ms Mayosi, but because he secured the
highest number of votes of the black men that contested.
The
Minister therefore submits that the measure meets the
Van
Heerden
test.
[38]
A point was strongly made by Counsel for
the Minister in oral argument that the measure had multiple
objectives in fulfilling the
aims of the Act, which included
transformation and restructuring of the legal profession. The
Regulations and the Rules are directed
at dislodging white dominance,
but at the same time white practitioners are to remain as part of the
solution to contribute towards
the enhancement of the transformation
process. White men also constitute a significant segment of the
legal profession. Transformation
cannot be served without
having them at the table.
[39]
The objectives of diversity and
inclusivity, amongst others, were raised by the LPC in its papers.
According to the LPC the
issue confronting this Court does not
relate to the broad transformation mandate under the Act. It is
restricted to and concerned
with the governance of the profession and
in particular how that governing structure (Provincial Council) is to
be populated. The
balance between race and gender, which the
Rules say must be considered when voting, is not aimed at promoting
or advancing the
broader mandate of equality within the profession,
it relates to the composition or governance of the Provincial
Council.
[40]
In its view, the Equality Act and section 9
(2) of the Constitution are not implicated at all, and therefore the
Van Heerden
test has no relevance. It contends that in the first instance,
the definition of discrimination as set out in the Equality
Act is
not met by the Cape Bar, because populating a Provincial Council can
never be an imposition of a burden, obligation or disadvantage,
or
withholding of benefits, opportunities or advantages from any person.
Persons are elected to govern the profession collectively
by
discharging their mandate in terms of Regulation 5.
Van
Heerden
concerned a classical
discrimination issue as to how a particular scheme affected members
of the legislature, pre-1994 and post-1994.
In this case the
scheme does not distinguish one advocate from the other. It has
everything to do with composition.
It further contends that the
right to vote and to stand for elections is given to every advocate
in the province. Rules
and Regulations are not about equality
under the law of unfair discrimination. They are about a chosen
electoral system for
the composition of the governance and regulatory
structures of the profession, of which the impugned Rules and
Regulation are part.
The electoral scheme is intended to
achieve fair representation of all groups with a stake in the legal
profession, with
the goal of infusing structures of the profession
with a diversity of views, reflective of the South African
demographics, as the
Act requires it to do. For that reason,
the scheme provides for men and women of all races, teachers of law,
a person from
Legal Aid, the Fidelity Fund and persons designated by
the Minister, among others.
[41]
Counsel for the LPC made the point that the
argument about the minima and maxima as to number of votes, is
misplaced, because one
can have neither of such when the system only
has one vote per category. There are only four seats, and in
respect of each
category only one seat to work with.
[42]
Mr Paries’ argument is aligned to
that of the Minister. The attorneys’ profession as
represented by the Law Society
of South Africa, makes common cause
with the Minister and the LPC, as do the rest of the
amici
,
except for Sakeliga and the BLA, as mentioned earlier.
Discussion
[43]
Two issues we deal with upfront. The
first is that this case is not and should not be seen to be about Ms
Mayosi and Mr Paries.
It is about the Regulations and the
Rules, and the two advocates happen to be affected by the application
of the impugned
provisions, following the results of the WC
Provincial Council elections.
[44]
The second issue, although not germane to
the legal issues to be decided in this case, relates to the Cape
Bar’s contention
that it did not know what was contained in the
Regulations and Rules before the results were announced. The
submission that
it only realised after the election that the results
were to be allocated according to categories mentioned above cannot
be accepted.
The advocates were represented on the National
Forum by an
equal to
the number to attorneys who also served on the National Forum, even
though there are many more attorneys than advocates
practicing in
South Africa. The advocates and attorneys all participated in the
process, including the work done by the National
Forum since its
inception on 1 February 2015. The National Forum oversaw the
transitional process, and formulated the provisions
of the
Regulations and the Rules, that assisted the Minister in the process
of promulgating the Regulations on 31 August 2018 and
the National
Forum promulgating the Rules on 20 July 2018.
[45]
In addition, the Cape Bar via the GCB
participated in the National Forum, and commented on the Regulations
and the Rules prior to
their promulgation. Furthermore, the Rules and
Regulations are unambiguous. It does not avail the Cape Bar to blame
the LPC for
not having spelt out the system in correspondence when
the Regulations and the Rules stipulated it in black and white.
Moreover,
one of the notices from the LPC advised that the
elections would be held in accordance with Regulation 4. Legal
practitioners
could simply consult the relevant Regulation if they
were not familiar with its content. It therefore begs the
question why
the Cape Bar participated in a process with requirements
that stood in stark contrast to its view and that would produce a
definite
objectionable outcome. It elected not to propose or endorse
a black man among the candidates it endorsed as required by the Rules
and Regulations. It does not assist the Cape Bar to say its
Council or members did not read the Rules. Leaving that
issue
aside and turning to the impugned provisions.
[46]
It
seems to us the case turns on the determination of the objectives of
the electoral scheme. It is apposite to start by quoting
the
following passage by Moseneke J (as he then was) in
Van
Heerden
[5]
:
“…
the
long term goal of our society is a non-racial, non-sexist society in
which each person will be recognised and treated as a human
being of
equal worth and dignity. Central to this vision is the
recognition that ours is a diverse society, comprised of
people of
different races, different language groups, different religions and
both sexes. This diversity, and our equality
as citizens within
it, is something our Constitution celebrates and protects. In
assessing therefore whether a measure will
in the long term promote
equality, we must bear in mind this constitutional vision. In
particular, a measure should not constitute
an abuse of power or
impose such substantial and undue harm on those excluded from its
benefits that our long-term constitutional
goal would be threatened
.”
[47]
The Act charges that when the composition
of Council is considered, the racial and gender composition of South
Africa is a factor
to be considered. The Cape Bar agrees with
this, but the point it makes is that the manner in which the Rules
and Regulations
go about implementing this purpose offends the
objects of the Act and, more importantly, the transformational
imperatives of the
Constitution. It does so, by (a) capping the
seats black people and women can occupy to 50%, and (b) reserving a
seat for
white men who are not historically disadvantaged, thereby
blocking opportunities for groupings who suffer from continuing
disadvantage.
It therefore lends itself to irrationality,
arbitrariness and unreasonableness.
[48]
It matters not what motivates the Cape
Bar’s applications. Sceptical as the respondents may be,
the applications must
be scrutinised carefully on merit. We
must examine whether the scheme put in place to govern the provincial
structures in
the legal profession passes constitutional muster.
The Equality challenge
[49]
The
first question is whether a
prima
facie
case
of discrimination has been established.
[6]
The Equality Act defines discrimination as:
“…
any
act or omission, including a policy, law, rule, practice, condition
or situation which directly or indirectly –
(a)
imposes burdens, obligations or
disadvantage on; or
(b)
withholds
benefits, opportunities or advantages from, any person on one or more
of the prohibited grounds.
”
[50]
The Cape Bar asserts that it has
established a
prima facie
case
of discrimination. It contends that the Rules and Regulations
plainly meet the general definition of discrimination in
their
application to Ms Mayosi, and fit squarely within the practices
stipulated in the Equality Act as unfair discrimination.
They
further constitute direct discrimination on the intersecting grounds
of race and gender as envisaged in sections 7 and
8 of the Equality
Act, as they deny access to opportunities on the basis of race or
gender, because they depart from the ordinary
and standard democratic
position of a person with the most votes being the one to serve on a
body (in this case the Provincial
Council). The Rules and
Regulations and their application constitute discrimination because
they are laws, rules, or policies
that withhold a benefit,
opportunity or advantage on grounds of gender and race. The
rule or policy has withheld a benefit
or an opportunity from black
women because they can only hold one seat. The same could be
said about the position of black
people in general, which include
black men and women in general and white women.
[51]
It further submits that this departure from
the electoral system constitutes discrimination which requires
justification. The
intent and effect of the Rules and
Regulations, according to the Cape Bar, mean that the person who
receives the most votes will
not be elected because they are a wrong
race and a wrong gender. In other words, because Ms Mayosi is a
black woman (a category
whose vacancy had already been filled by Ms
Pillay, another black woman who got the highest number of votes in
the designated category),
she cannot be elected, even though she
received more votes than Mr Paries (who is a black man).
[52]
There is doubt as to whether occupying a
seat in the body seized with the administration of the legal
profession such as the Provincial
Council constitutes a “benefit”,
it may perhaps be viewed as an “opportunity”, not in the
employment or
commercial sense, but in the sense of an “opportunity”
to serve the profession or applying one’s skills and experience
in making a difference. The Cape Bar says it is a prestigious
position, which affords one with a professional advantage and/or
sincere desire to serve the profession.
[53]
While that is so, it is also important to
note, that in the context of the Act, the appointment of a Council
member (by extension
a Provincial Council member) does not give rise
to a contract of employment, or access to work, briefs or
instructions. Nor
does a council member earn a salary;
employment benefits and the like as would an employee. Council
members are appointed to execute
their statutory and fiduciary duties
and obligations to transform, restructure and regulate the legal
profession, in accordance
with the values, rights, obligations and
aspirations contained in our Constitution and the Act.
[54]
Restricting
advocates to competing in silos of race and gender, according to the
Cape Bar, constitutes differentiation. The
seats are not open
for everyone to contest, in other words one cannot contest outside
their pre-determined category. Assuming on
behalf of the Cape Bar
that a case of
prima
facie
discrimination, which is a low threshold
[7]
,
has been met, it is for the Minister and the LPC to show that
discrimination did not take place as alleged, or that the conduct
is
not based on prohibited grounds.
[8]
The occurrence of discrimination is denied by the respondents
on the basis that everyone has been treated equally. It
can be
assumed on behalf of the Cape Bar that the requirement of different
races and genders competing in different categories
constitutes
discrimination, not only of black women, but of both races and
genders.
[55]
If discrimination occurred on a prohibited
ground, the Minister and the LPC may defend it on grounds that it is
permissible under
section 14 (1) of the Equality Act, or it is fair
under section 14 (2) of that Act. Section 14 (1) provides:
“
It
is not unfair discrimination to take measures designed to protect or
advance persons or categories of persons disadvantaged by
unfair
discrimination or the members of such groups or categories of
persons
.”
[56]
This is largely similar to section 9 (2) of
the Constitution which states, inter alia, that:
“…
To
promote the achievement of equality, legislative and other measures
designed to protect or advance persons, or categories of
persons,
disadvantaged by unfair discrimination may be taken
.”
[57]
Section
14 (2) serves as a defence to a claim of unfair discrimination in the
same way as section 9 (2). That is where the
test devised in
Van
Heerden
finds application. The Court in
Van
Heerden
said that when a measure is challenged for violating an equality
provision, its defender may meet the challenge by showing it as
that
which is contemplated in section 9 (2)
[9]
of the Constitution “
in
that it promotes the achievement of equality and is designed to
protect and advance persons disadvantaged by unfair discrimination
.”
The test to determine whether a measure falls within section 9
(2) is threefold: (a) whether the measure
targets
persons or categories of persons who have been disadvantaged by
unfair discrimination; (b) whether the measure is
designed
to protect or advance such persons; and (c) whether the measure
promotes
the achievement of equality (at para 37). According to the Cape
Bar none of these are fulfilled.
[58]
The case in
Van
Heerden
was about whether a rule in the
Political Office-Bearers Pension Fund, providing for lower employer
contribution rates in respect
of a certain category of
parliamentarians, was unconstitutional for being discriminatory and
offending equality rights. According
to Moseneke J, who penned
the majority judgement, the legal efficacy of the scheme should be
judged by whether an overwhelming
majority of members of the favoured
class are persons designated as disadvantaged by unfair exclusion.
The existence of a
tiny minority of those who were not unfairly
discriminated against in the past, but who benefited from the
differential scheme,
did not affect the validity of the scheme.
Secondly, the remedial measures adopted must be reasonably
capable of attaining
the desired outcome. If they are not
reasonably likely to achieve the end of advancing or benefiting the
interests of those
who were disadvantaged by unfair discrimination,
then they would not constitute measures contemplated by section 9
(2). There
is no necessity to predict the precise outcome of
the future. Such would defeat the object of section 9 (2).
Thirdly,
to determine whether the measure will promote the
achievement of equality requires an appreciation of the effect of the
measure
in a broader society (at paras 40 to 44).
[59]
The Court was satisfied that the evidence
in
Van Heerden
showed a clear connection between the membership differentiation made
by the scheme, and relative need for each category for increased
pension benefits. It found the scheme was designed to
distribute pension benefits on an equitable basis, with the purpose
of diminishing the inequality between privileged and disadvantaged
parliamentarians. It promoted the achievement of equality,
reflected a clear and rational consideration of the need of the
members of the fund, and served the purpose of advancing persons
disadvantaged by unfair discrimination.
[60]
The
uniqueness of the present case is that it is characterised on the
terms that the measure put in place discriminates against
those it
was meant to serve or advance (i.e. blacks and women) similar to what
was held in
Insolvency
Practitioners
[10]
. This is unusual
because in other cases, including
Van
Heerden,
the complainants were from a class that was previously favoured or
individuals within that class who felt excluded by measures
sought to
advance those previously excluded. Ironically, in this case, the
chosen scheme seeks to include those individuals.
[61]
We disagree with the LPC that questions of
equality and
Van Heerden
are not implicated in this case. Once race and gender
composition are to be employed as factors to be considered in how a
body is constituted, transformational measures are implicated.
[62]
In
Van
Heerden
, Moseneke J found that a
measure will fall under section 9 (2) of the Constitution if “
an
overwhelming majority of members of the favoured class are persons
designated as disadvantaged by unfair exclusion
.”
(at para 40).
[63]
Three of the seats in the Provincial
Council are reserved for members of groups disadvantaged by unfair
discrimination, or the members
of such groups or categories of
persons, in the form of a black woman, a black man and a white
woman. It may be argued that
the overwhelming majority (i.e.
75%) of the members targeted by the scheme are black people and
women. The scheme appears
to be targeted at a disadvantaged
group at least in the main. It guarantees three seats for black
people and women (together)
in a profession that is overwhelmingly
dominated by white men. As the Minister puts it, without
regulatory interference,
white practitioners may likely choose their
white colleagues, particularly men, which may lead to undue
preferences and disadvantage
other blacks and women.
[64]
A point can be made thus, that as in
Van
Heerden,
while the scheme favoured
persons designated as previously disadvantaged by unfair exclusion,
white men also benefit by gaining
a seat, but that should not
invalidate the scheme concerned. They do not benefit unduly
because of the sheer numbers they
enjoy in the profession, but are
given one seat despite being a majority. In other words, they
do not benefit because of
being a larger group in the profession in
comparison to others.
[65]
The
Cape Bar says white men must not be guaranteed a seat at all, because
they do not need protection, the system has always protected
them.
It is instructive that in
Insolvency
Practitioners
[11]
a policy with a category that included white men was found to be
targeting persons who were disadvantaged by unfair discrimination,
but fell short on the second and third
Van
Heerden
requirements.
[66]
As to the second requirement in
Van
Heerden
, the scheme is designed to
ensure that black people and women have a seat in the Provincial
Council. In an open contest they
may be outvoted by white men.
Clearly, the Regulations and Rules advance or benefit the
interests of those who have been
disadvantaged by unfair
discrimination. They cannot be viewed as arbitrary or
displaying naked preference. The scheme
is designed to allocate
seats on an equitable basis. The advancement of minority groups
within the profession is no doubt
promotion of the achievement of
equality.
[67]
In
Insolvency
Practitioners
it was not the inclusion
of white practitioners that invalidated the policy, but it was found
from the information on record, that
the policy was unlikely to
transform the insolvency industry (at para 40). It was paucity
of information as to how the list
would be applied that made the
policy fall foul of the second
Van
Heerden
requirement. The policy
also did not pass the second and third
Van
Heerden
requirements because in
“
appointing one practitioner in
alphabetical order it entrenches the status quo. Since white
males are in the majority, most
appointments would go to them
”
(at para 41). Because disadvantaged groups in their respective
category (category D), were lumped with white men who
constituted a
large majority in the industry, affording everyone equal opportunity
in that context would not be meaningful.
The measure there also
discriminated against other black people on the basis that they
became citizens on or after 27 April 1994.
Effectively also
punishing young people, by placing all those born on or after 27
April 1994 in category D (which is not
the case in the present
matter). It is in that context we read the statement by the
Court in paragraph 42 of
Insolvency
Practitioners
that “[
a
]
section 9 (2) measure may not
discriminate against persons belonging to the disadvantaged group
whose interests it seeks to advance.
”
[68]
Perhaps we should pause to mention that as
the LPC has submitted, what the Court is concerned with in these
proceedings, is not
the broad transformational goal of the legal
profession that the Act is aimed at, but rather the composition of
the governing structures
of the profession. Indeed, the ideal
goal of the legal profession reflecting the demographics of South
Africa is directed
at the population of the broader legal profession
and not directly at the governing structures,
per
se
. That is not to say the
governing or regulatory bodies should not be structured as such. The
question is whether that
is the mandatory necessity of the Act,
invalidating any other racial and gender composition devised.
[69]
Mokgoro J (in one of the minority
judgments) differed as to the applicability of section 9 (2) in
Van
Heerden
, although she also found that
the measure was not unfairly discriminatory and agreed that the
appeal be upheld. She did so
for different reasons, which we
propose to explore. Sachs J in a separate judgment found the
majority and minority judgments
(including that of Ngcobo J) as
mirroring each other and being virtually identical in relation to
philosophy, approach, evaluation
of relevant material and ultimate
outcome (at para 135). Mokgoro J notably observed in
Van
Heerden
:
“
If
the aim of the section is to advance persons or groups previously
disadvantaged by unfair discrimination, the section should
be used
for that purpose alone. To do otherwise would be to allow the
section to be used to enact measures which should not
be tested under
section 9 (2) because they benefit persons who do not belong to
groups previously disadvantaged by unfair discrimination.
”
This seems to be
consistent with the Cape Bar’s view.
[70]
Although she left open the question whether
every person who benefits from the scheme must be from the previously
disadvantaged
group, she was of the view that the evidence in that
case did not show that the advanced group was in the overwhelming
majority
(at para 88 and 93). She raised a point that section 9
(2) cannot be used to advance a purpose other than to remedy
disadvantage
caused by past unfair discrimination. She observed
that “
a measure might resemble a
restitutionary measure because it is aimed at creating equity between
groups of persons but falls short
of protection in terms of section 9
(2). This could be the case when any of the three requirements
identified by Moseneke
J are not fulfilled. In
view of the approach I take of the group
targeted for disadvantage in the past, the inclusion of those not so
targeted affects the
group in a way that disqualifies it for
advancement under a s 9 (2) remedial measure. Such a
measure may, generally
on the basis of justification in terms of s 9
(3) and particularly in view of the objective of the measure, pass
muster. The evidence
for advancement of the group or for
justification may be the same or it may be different, depending on
the circumstances of each
case. It would be untenable to strike
the measure down only because it does not fall under s 9 (2) when it
could be decided
under s 9 (3). Doing so would frustrate any
programme designed for the achievement of equity.
[71]
A
point was also made by Ngcobo J, in
Van
Heerden
that the fact that a remedial measure does not come under section 9
(2), does not mean it violates the equality clause. Principles
underlying remedial equality do not operate only in the context of
section 9 (2), the constitutional validity must still be determined
in light of the equality guarantee.
[12]
[72]
Having
found that the pension fund rule involved in that case fell short of
the requirements of section 9 (2), Mokgoro J went on
to test the
measure against section 9 (3)
[13]
of the Constitution, referring to
Harksen
[14]
,
as to the factors to be considered in determining whether
discrimination is unfair
[15]
:
“
(
a)
[T]he position of the complainants in society and whether they have
suffered in the past from patterns of disadvantage,
whether the
discrimination in the case under consideration is on a specified
ground or not;
(b)
the nature of the provision or power and the purpose
sought to be achieved by it. If its purpose is manifestly
not
directed, in the first instance, at impairing the complainants in the
manner indicated above, but is aimed at achieving a worthy
and
important societal goal, such as, for example, the furthering of
equality for all, this purpose may, depending on the facts
of the
particular case, have a significant bearing on the question whether
complainants have in fact suffered the impairment in
question. In
Hugo, for example, the purpose of the Presidential Act was to benefit
three groups of prisoners, namely, disabled
prisoners, young people
and mothers of young children, as an act of mercy. The fact
that all these groups were regarded as
being particularly vulnerable
in our society, and that in the case of the disabled and the young
mothers, they belonged to groups
who had been victims of
discrimination in the past, weighed with the Court in concluding that
the discrimination was not unfair;
(c) with due regard to (a) and (b)
above, and any other relevant factors, the extent to which the
discrimination has affected the
rights or interests of complainants
and whether it has led to an impairment of their fundamental human
dignity or constitutes an
impairment of a comparably serious
nature.”
[73]
Assuming
that we were wrong as to the
Van
Heerden
test being met, section 14 (2)
[16]
of the Equality Act remains available to the Minister and the LPC.
Indeed the Cape Bar accepted this in its written argument,
but
asserted that the scheme fails the test on that score too.
[74]
In this case, the complaint is brought by
the Bar, of which 75% are white men, who did not suffer from patterns
of disadvantage
as a group. They bring the complaint
challenging the scheme which they say did not favour black women,
(which they cannot
be barred from doing) because it capped their
representation to one seat whilst also guaranteeing white men a seat.
We have
assumed on behalf of the Cape Bar that there is
discrimination based on race and gender. Whilst the capping of
race and gender
is 50% each, when white women are included as part of
the disadvantaged group, that disadvantaged group as a unit holds 75%
of
the seats of the provincial governing bodies.
[75]
The Cape Bar submits that Ms Mayosi’s
dignity was impaired because after having received overwhelming
votes, she was told
that she could not serve because she was a woman.
As submitted by the LPC, it is noteworthy that Ms Mayosi is not a
complainant
in these proceedings. She is merely cited as a respondent
who abides the decision of the Court. It is not fair and correct to
focus
on Ms Mayosi as a person. What the Court should be
concerned with is whether black women as a group are being impacted
in
the manner suggested by the Cape Bar. Ms Mayosi is indeed a
well-respected advocate at the Bar and she would undoubtedly have
been a valuable member of the WC Provincial Council, particularly in
a province where there are only 14 African black women advocates
at
the Cape Bar, a lamentable situation, in urgent need of remediation.
[76]
The fact that black
women, white women and black men made themselves available for
election on the basis of the published impugned
Regulations and
Rules, cannot in our view, amount to the impairment of human dignity
or the infringements of any constitutional
rights, in circumstances
where any candidate was not elected in their specific category of
participation. There was only one seat
for each category and not
more.
[77]
The Council of the Cape Bar knowingly
recommended and endorsed two black women to compete against each
other. They should
have known that only one of them would
qualify for a seat, as clearly stipulated in the Rules. Something
that ought not to
have been done given the fact that the Cape Bar did
not agree with the Rules, and the result would clearly have left out
one of
the black women. This is not something that should have
come as a surprise. It is not clear why no black male candidate was
endorsed from the ranks of the members of the Cape Bar in compliance
with the Rules.
[78]
While it is so that the impugned provisions
guarantee a seat for a white man, one has to also look at the other
objectives that
the Act seeks to achieve, as articulated by Counsel
for the Minister, which include both transformation and restructuring
of the
legal profession. In this regard, black people and women
are not denied seats, but seats are designated to each category for
an important societal goal. The measure is not aimed at
impairing black and women advocates. It is aimed at creating
equity within a body or provincial bodies that regulate the
profession. The scheme was instituted to benefit a group of
diverse advocates in terms of race and gender as one component of the
composition of the Provincial Council, in a new era, which
the Act
seeks to advance. The LPC in its papers makes this point.
[79]
One objective is to diminish dominance of
the governing structures by white male advocates, by guaranteeing a
seat for black and
women advocates regardless of their numbers in the
profession, and another is to recognise that white men constitute an
important
segment of the legal profession. As correctly submitted by
Counsel for the Minister, they relatively speaking, have the
advantage
in terms of work, skills and resources, among others, owing
to opportunities afforded to them in the past to the exclusion of
others
and accordingly need to be part of the governing structures of
the legal profession, not by luck but by design. Reconciliation is
also, in our view, an ongoing imperative that diversity is intended
to encourage and advance. In other words, by ensuring
that as
all other significant partners in the profession, they remain at the
discussion table. This is amongst others a recognition
of the
contribution they can make and role they can play as part of society
in bringing about the aims of the Act. Indeed,
the issue of a
transformed profession is one which everyone talks about, but results
are few and far between, especially in the
Western Cape.
[80]
The
scheme is not intended to prefer white men at all, but designed to
make them equal contributors and partners in the governance
of the
legal profession. All councillors have an equal opportunity to
foster the aims, objectives and aspirations of the
Act and
Constitution, which promotes transformation and restructuring of, and
reconciliation in the legal profession. This
is a legitimate
objective, in our view, in terms of section 14 (2) of the Equality
Act read with section 9 (3) of the Constitution.
The electoral
scheme in no way unjustifiably or disadvantageously targets black
people and women, nor does it seek to impair
them. We take note
of the LPC’s view that the Provincial Council’s powers
and functions are very much administrative,
as articulated in the
Regulations, unlike the Council, which has a broad mandate of
facilitating “
the
realisation of the goal of a transformed and restructured legal
profession that is accountable, efficient and independent
.”
[17]
It must be remembered that the Council “
may
delegate to the Provincial Councils such powers and functions which,
in the interests of the legal profession are better performed
at
provincial level
”,
as per section 23 (1) of the Act.
[81]
The goals of diversity, inclusivity and
ongoing reconciliation are for the societal good. White male
practitioners are part
of the profession and a large segment in it.
For transformation to succeed they should collectively
participate in, and contribute
towards the achievement of our
constitutional and statutory objectives. It cannot be inimical
for a regulatory body tasked
with fulfilling the aims of the Act,
which include transforming of the profession, to include white men as
a category crucial to
fulfilling that task, given the situational
context of the stubborn realities of the legal profession. Diversity,
inclusivity,
and reconciliation are also crucial elements of
transformation.
[82]
It is striking that insofar as the capping
is concerned, Regulation 4 and the Rules that deal with the election
of the Provincial
Councils, are largely similar to Regulation 2 that
is concerned with the election procedure of legal practitioners for
purposes
of constituting the Council itself. Annexure B-Ballot
Paper of the Regulations, dealing with advocates, notably states,
inter
alia, that the Council will be constituted by two black women,
two black men, one white woman and one white man with the highest
number of votes in their respective categories as already stated.
[83]
The same requirement applies to attorneys
as per Annexure A. It therefore appears that even the Council
is elected in the
same way as Provincial Councils, in that a number
of candidates in accordance with their race and gender are specified
and those
with the highest number in their categories will constitute
the Council, and this according to the Annexure is to comply with
section
7 (2) (a) of the Act, doubtless the requirement that race and
gender composition should be taken into account. Curiously,
this is not impugned.
The use of quotas
[84]
We
do not read the judgments from our courts to have prohibited quotas
in all situations. As Madlanga J observed (in the minority
judgment) in
Insolvency
Practitioners
,
the Constitutional Court, “
has
in the past pointed towards the possibility of the use of quotas
being constitutionally impermissible under certain legislation
.”
[18]
Having found it unnecessary to engage in a debate as to whether under
section 9(2), quotas are similarly outlawed, he referred
to the words
of Moseneke J in
Van
Heerden
[19]
where
he emphasised a “situation-sensitive” approach.
Madlanga J cautioned that... “
before
invalidating a measure meant to achieve substantive equality for
being rigid, it must be looked at in context or in a
‘situation-sensitive’
manner
.
It
can never be a one-size fits all.
”
[20]
[85]
The
Constitutional Court has spoken extensively in a number of decisions
with regard to the achievement of substantive equality,
a
constitutional obligation in terms of section 9(2) of our
Constitution. It is important to note that none of the
authorities
we have been referred to, dealt with the application of
section 9(2), in the context of the appointment of a council member
to
a statutory body to perform the function of administering,
transforming, restructuring and regulating a profession.
That
is a crucial distinction between this matter and those other
considered authorities. It must be remembered that the scheme
is directed at the governing structures of the legal profession and
is not about the distribution of work and briefs to individual
practitioners.
Insolvency
Practitioners
[21]
dealt with the appointment of practitioners to generate fees and earn
a living, the
Van
Heerden
[22]
matter as already stated related to certain political office-bearers’
pension fund, which provided for differentiated employer
contributions in respect of members of Parliament and other political
office-bearers between 1994 and 1999
[23]
.
[86]
The
matter of
Barnard
[24]
dealt
with a decision of the national commissioner of the police service
(“the national commissioner”), who refused
to promote an
employee of the police service, Captain Renate M Barnard (“Ms
Barnard”).
It
is noteworthy that Ms Barnard was interviewed by a racially diverse
panel
[25]
.
The case related to the promotion of an applicant in the context of
an existing employer and employee relationship
[26]
.
The
national commissioner’s decision not to appoint Ms Barnard was
found to be rational and reasonable.
[27]
Moseneke
ACJ went on to say that the national commissioner “
exercised
his discretion not to appoint Ms Barnard, even though she had
obtained the highest score, because her appointment would
have
worsened the representivity in salary level 9 and the post was not
critical for service delivery. Again, in his discretion,
he
chose not to appoint Mr Mogadima or Captain Ledwaba (Mr Ledwaba) even
though their appointment would have improved representivity.’
I cannot find anything that makes his exercise of discretion
unlawful
.”
[28]
A
point missed by the Cape Bar and notably significant, in our view, is
that,
in
Solidarity
[29]
the majority judgment held a view that the
Barnard
principle
was not limited to white candidates but could also apply to black
candidates. It also emphasised the importance of achieving
inclusivity of all racial groups and both genders in the workplace.
In
that case it was found that the overrepresentation argument relied
upon by the Minister lacked a proper basis because the Department
only used the national demographic profile and did not take into
account the regional active population, as it was obliged to do
in
terms of the Employment Equity Act 55 of 1998 (“the EE Act”).
It is however important to distinguish the
Barnard
and
Solidarity
decisions from this case as their context was based on the EE Act,
which specifically prohibits the use of quotas. The importance
of
inclusivity and diversity, albeit in the workplace, is underscored in
Solidarity
.
Administrative Action/
Exercise of public power
[87]
It
will be recalled that the Cape Bar argued that the Minister’s
decision to promulgate the impugned Regulations, the National
Forum’s
decision to issue the impugned Rules, and the LPC’s application
of the impugned Rules, all constitute administrative
action which is
subject to review under PAJA. Because this question has limited
practical consequences, we will not spend
much time on it; this is
because, as the Cape Bar contended, if the impugned actions are found
not to be administrative action,
they remain an exercise of public
power which may be reviewed under the legality principle. We
accept that in certain instances
regulation-making power may
constitute administrative action.
[30]
The resolution of this question is not straightforward. Counsel for
the Cape Bar argued that while there are aspects of the Regulations
which are policy based, most parts are prosaic in nature, dealing
with matters of process, i.e. the running of elections. The
same is argued as regards the Rules. The Minister however holds
the view that from their plain reading, Regulation 4 (3)
and
Regulation 4 (4), which regulate the composition of the Provincial
Council, displays nothing administrative in nature.
[88]
In
Grey’s
Marine
[31]
,
the Supreme Court of Appeal (“the SCA”) held that:
“
Administrative
action is … in general terms, the conduct of the bureaucracy
(whoever the bureaucratic functionary might be)
in carrying out the
daily functions of the State, which necessarily involves the
application of policy, usually after its translation
into law, with
direct and immediate consequences for individuals or groups of
individuals.
[32]
”
[89]
The SCA further held that:
“
In
making that determination ‘(a) series of considerations may be
relevant to deciding on which side of the line a particular
action
falls. The source of the power, though not necessarily
decisive, is a relevant factor. So, too, is the nature
of the
power, its subject-matter, whether it involves the exercise of a
public duty and how closely it is related on the one hand
to policy
matters, which are not administrative, and on the other to the
implementation of legislation, which is.’”
[33]
[90]
As
stated in sections 6 (1) (b) (ii) and 6 (5) (h) of the Act for
example, the Minister, receives advice, annual reports,
recommendations
from the LPC, among others. The LPC and statutory
structures established in terms of the Act exercise administrative
functions
in carrying out the application of policy, not the
Minister. The LPC sources its power to make the Rules from the Act.
In
our assessment both Regulations 4 (3) and 4 (4) which relate to
the composition of the representative advocates to be elected to
the
Provincial Councils do not appear to be dealing with matters that are
administrative in nature. It may be argued that
the Rules on
the other hand by the mere fact of regulating the voting process
involve implementation of policy. This being
so, PAJA may well
be applicable insofar as the Rules are concerned. However, due
to their being closely related to the impugned
Regulations, and the
fact that upon scrutiny the impugned Rule16.15.3 read with Schedule
1B seems to contain matters not purely
prosaic but policy related.
It categorises voting based on race and gender and also replicates
policy requirements, we are
therefore not persuaded that PAJA is
applicable in this instance. The effect of this finding is that
the Cape Bar does not
have to concern itself with its application for
condonation for its non-compliance with the provision in section 7
(1) of PAJA,
for the late filing its application. Notwithstanding our
misgivings as regards the application of PAJA in these circumstances,
the Minister and LPC exercised public power, reviewable in terms of
section 2
[34]
of the
Constitution. It is trite that the exercise of public power must be
in compliance with all constitutional requirements.
Ngcobo J, in
Affordable
Medicines,
stated the following:
“
The
exercise of public power must therefore comply with the Constitution,
which is the supreme law, and the doctrine of legality,
which is part
of that law. The doctrine of legality, which is an incident of
the rule of law, is one of the constitutional
controls through which
the exercise of public power is regulated by the Constitution.”
[35]
(Footnotes
omitted.)
[91]
We now turn to deal with contentions raised
under the topic of legality.
Ultra vires
[92]
The Cape Bar contends that the Minister
acted ultra vires his powers, as the Regulations create a framework
for an election procedure,
which is impermissible. His powers,
according to the Cape Bar, were limited to “
establishing
the Provincial Councils
”, but not
the “
election procedure
”.
This power, so the argument goes, fell to the LPC in terms of Section
23 (4) and 95 (1) (j) of the Act.
[93]
With
regard to the
ultra
vires
principle, Ngcobo J in
Affordable
Medicines
[36]
,
stated:
“…
If,
in making regulations, the Minister exceeds the powers conferred by
the empowering provisions of the [relevant Act], the Minister
acts
ultra vires (beyond the powers) and in breach of the doctrine of
legality. The finding that the Minister acted ultra
vires is in
effect a finding that the Minister acted in a manner that is
inconsistent with the Constitution and his or her conduct
is
invalid.”
(Footnote
omitted.)
[94]
In
terms of section 94 of the Act, the Minister is empowered to make
Regulations. Section 95 empowers the LPC to make Rules,
while
section 97 empowered the National Forum to make recommendations to
the Minister as regards, among others, “
the
composition, powers and functions of the Provincial Councils
[37]
”.
The
Minister was obliged to act on the recommendations made to him by the
National Forum, within six months of receiving the recommendations,
in consultation with the National Forum
[38]
.
The
Minister promulgated the impugned Regulations as was required to
“
give
effect to the recommendations of the National Forum
”
[39]
.
In the circumstances
of
this case, and based on the legislative provisions referenced above,
we are of the view that the Minister acted within the confines
of the
Constitution and the Act, and his powers and functions were
accordingly executed intra vires.
Arbitrariness
[95]
For
arbitrariness to be established there must be an absence of reasons
or reasons which do not justify the action taken.
[40]
The Cape Bar contends that the electoral system cannot justify
measures which have as their effect the capping of positions
available to black people and women, and a system of ‘job’
reservation for white people and men. It relies on
the
Insolvency
Practitioners
decision, where the Court observed that though the measure had the “…
laudable
purpose of transforming the insolvency industry, which everyone
agrees needs to be transformed, the implementation of the
policy
contains arbitrary terms”.
[41]
[96]
The
arbitrariness referred to in the
Insolvency
Practitioners
matter related to the fact that the impugned transformation policy
only applied to those black people who became citizens before
27
April 1994, who therefore enjoyed the benefits of the policy.
No reasons were advanced for such restriction. Black
people who
became citizens on 27 April 1994 and thereafter were denied such
benefits for no apparent reason. The unequal
application of the
policy (the emphasis being the differential treatment of black people
simply based on the date they became citizens)
was consequently found
to be arbitrary and led to impermissible differentiation.
[42]
[97]
Same cannot be said for this case - the
Minister and LPC provided reasons to justify the promulgation of the
Regulations and the
Rules. There is no unequal treatment of
persons similarly placed. Similarly, there is no naked
preference of white
men.
Rationality
[98]
Rationality
is a standard lower than arbitrariness.
“
All
that is required for rationality to be satisfied is the connection
between the means and the purpose. Put differently,
the means
chosen to achieve a particular purpose must reasonably be capable of
accomplishing that purpose. They need not
be the best means or
the only means through which the purpose may be attained
.”
[43]
The
choice as to the suitable means belongs to the executive. This
injunction was appositely set out by Ngcobo CJ
in
Albutt
[44]
,
in the following terms:
“
The
Executive has a wide discretion in selecting the means to achieve its
constitutionally permissible objectives. Courts
may not
interfere with the means selected simply because they do not like
them, or because there are other more appropriate means
that could
have been selected. But, where the decision is challenged on
the grounds of rationality, courts are obliged to
examine the means
selected to determine whether they are rationally related to the
objective sought to be achieved.
What
must be stressed is that the purpose of the enquiry is to determine
not whether there are other means that could have been
used, but
whether the means selected are rationally related to the objective
sought to be achieved
. And
if, objectively speaking, they are not, they fall short of the
standard demanded by the Constitution
”
.
(Own emphasis.)
[99]
As
Sachs J stated in
Van
Heerden
“
[t]he
fact that the same remedial purpose could be achieved in different
ways, even if there are better ways, would not be sufficient
to
invalidate it
[45]
.”
In this case, the election of candidates to a Provincial Council is
part of the establishment of the statutory body
for the governance,
administration, regulation and transformation of the legal
profession. Counsel for the Cape Bar argued that
there was divergence
between the Minister and the LPC as to the rationale for the Rules
and Regulations. The Minister explained
the purpose of the Act
and Regulations as follows:
“
The
purpose of the Act is to change a stubbornly untransformed profession
through legislative intervention.”
and
“
The
Regulations are necessary to ensure continued representation of Black
women and men, a minority at the Bar, on the respective
Provincial
Councils. The reality is that Black advocates are a minority at
the Bar and in the absence of mandatory obligations
for their
representation on the Provincial Councils, history informs us that
they will simply be left out.”
[100]
The LPC on the other hand explained the
purpose of the electoral scheme for the election of the Provincial
Council as follows:
“…
the
electoral scheme devised for the constitution of the LPC and the
Provincial Councils is intended to achieve the fair representation
of
all groups with the goal being to infuse the regulatory structures of
the profession with a diversity of view, reflective of
the South
African demographics, …
.”
[101]
Schedule 1B (Part B) of the Ballot paper
for the election of legal practitioners to the Provincial Council
records on the Ballot
paper that the reason is “[
i
]
n
order to achieve an appropriate balance of race and gender in
relation to the composition of the Provincial Council, …”.
[102]
We do not read the stated objectives as
contradicting each other, nor is the one explanation mutually
destructive of the other.
They both talk to the objects the
Act. As we have already indicated, we disagree with the LPC
that the Rules and Regulations
do not implicate issues of equality.
While that is so, the purpose it attributes to the scheme is
consistent with the purpose
of the Act.
[103]
There can be no doubt, as conceded by the
Cape Bar, that the profession is untransformed and “
that
the electoral system is an attempt to take steps to address
disadvantage and accommodate diversity”
(at
least in part according to it). Given our history, it is a
matter of fact that black people and women have been excluded
and
marginalised
for
decades, and we are yet to reach the stage where we need not have to
rely on legislation to ensure representivity, inclusivity
and
diversity on structures of governance.
In
our view, what is hardwired into the electoral system is 75%
representation of historically disadvantaged groups of advocate
members in terms of race and gender, to serve on the WC Provincial
Council, with the objective of, among others, inclusivity. Black
women are not being denied or excluded from participating, they are
included and guaranteed one out of four seats. Had it
not been
for the measure they would have had a limited chance of
participating, given that they are in the minority in the legal
profession. Further, the Regulations and the Rules were
intended to ensure that there was equitable representation of all
races and genders, and that was achieved.
[104]
The
creation of a transformed and diverse Provincial Council, in our
view, is manifestly part of building and restructuring the
legal
profession, a microcosm of the broader South African society, ravaged
by a system of apartheid. As stated by Froneman
J in
Albutt
,
[46]
ours is
a
participatory democracy and a project aimed at achieving national
unity. Transforming and restructuring the governing structures
of the profession in a manner representative of all races and
genders, we venture to say, does promote the ongoing constitutional
goal.
The
Council of the regulator and councilors are obliged and have a
fiduciary duty to give meaning, form, and content to their statutory
and constitutional mandate.
We
appreciate the fact that the Cape Bar attacks the lawfulness of the
impugned provisions as they stand. While they cannot be estopped
from
doing so, it is significant that the rationale of the impugned
provisions is the product of the deliberations of which they
were
part.
[105]
Nonetheless, a rational link has been amply
demonstrated, in our view, between the purpose and the means chosen
to achieve that
purpose.
The impugned
Regulations, Rules, and the application thereof rationally achieve
representivity in terms of race and gender, embrace
inclusivity and
entrench diversity for the WC Provincial Council that has been
established for the purpose of administering and
contributing towards
the transformation of the legal profession.
Reasonableness
[106]
To
be successful on this ground the Cape Bar must show that the issuance
of the Regulations and the Rules was so unreasonable that
no
reasonable decision maker could have reached the same decision
[47]
.
This ground must also fail, in our view, for the same reasons
articulated above. It is not unreasonable that a decision
maker, seeking to give expression to the aims of the Act, which
include the taking into account of race and gender as factors in
the
composition of the Provincial Council, would adopt the impugned
Regulations and Rules to do so. It must also be remembered
that
there are only four positions to work with. Within those
parameters it is not unreasonable to designate 50% of the seats
to
each gender and each race, most importantly, to assign majority of
those seats to legal practitioners who were previously disadvantaged.
Conclusion and Costs
[107]
Considering
all the factors mentioned above in respect of both the equality
challenge and the review, we are of the view that both
applications
must fail. This is a matter of constitutional importance. The
Minister and the LPC did not quarrel with
the applicability of the
Biowatch
[48]
principle if the Cape Bar were to be unsuccessful. Accordingly,
each party would be responsible to pay its own costs.
[108]
As a concluding remark, it is perhaps
fitting for all to be reminded that the election of black women to
the governing structures
of the profession is not in and of itself
sufficient to fulfil the transformation objective of the legal
profession. Transformation
is an imperative that that must extend
beyond that, to addressing matters that include briefing patterns,
attraction, retention
and offering support to black and women legal
practitioners, among others.
Order
[109]
For
the reasons outlined above, the followed order is made:
1.
The application brought under case number
9435/19 in the High Court is dismissed.
2.
The application brought under case number
EC 12/2019 in the Equality Court is dismissed.
3.
There is no order as to costs in respect of
both applications.
______________________________________
N P
MABINDLA-BOQWANA
Judge
of the High Court and Equality Court
______________________________________
T
PAPIER
Judge
of the High Court and Equality Court
APPEARANCES
For the
applicant: Adv
D Borgstrom SC with Adv
M Bishop, N Khan and K Ngqata
Instructed
by:
Riley
Incorporated, Cape Town
For the 1
st
respondent: Adv T Ngcukaitobi with Adv L
Rakgwale and Adv T E Ramogale
Instructed
by: State
Attorney
For the 2
nd
respondent: Adv I A M Semenya SC with Adv F J Nalane
and Adv L Makapela
Instructed
by: Bisset
Boehmke McBlain, Cape Town
For the 7
th
respondent: Adv D J Jacobs SC
Instructed
by: CMB
Attorneys, Bellville
C/O Erasmus Ranchod &
Associates, Cape Town
1
st
Amicus
curiae Adv
D Johnson with Adv D
Petersen and Adv F Rodriques
Instructed
by: Daryn
Thomas & Associates, Cape Town
2
nd
Amicus
curiae Adv
M Oppenheimer
Instructed
by:
Kriek
Wassenaar &
Venter, Pretoria
C/O Welgemoed Attorneys,
Cape Town
3
rd
Amicus
curiae Mr
A Mahomed of Ashraf
Mahomed Attorneys,
Claremont
4
th
Amicus
curiae Adv
Z Cornelissen
Instructed
by:
Etienne
Barnard Attorneys, Cape Town
5
th
Amicus
curiae Adv
M
Donen SC
Instructed
by:
Dentons
Attorneys, Cape Town
[1]
Section
4 of the Act.
[2]
In
terms of section 97 (1) (a) (i) of the Act, the National Forum had
to, within 24 months after the commencement of Chapter 10
of the
Act, make recommendations to the Minister on an election procedure
for the purposes of constituting the Council. The
National
Forum was a body created in terms of section 96 of the Act, whose
duration was for a period of three years and would
cease to exist
upon the commencement of Chapter 2 of the Act, which among others
established the Council.
[3]
In
terms of section 1 of the Act “
Board”
means
“
the
Legal Practitioners’ Fidelity Fund Board established in terms
of section 61
”.
[4]
Minister
of Finance and Another v Van Heerden
[2004] ZACC 3
;
2004 (6) SA 121
(CC)
[5]
Id.
fn.4, at para. 44.
[6]
Section
13 of the Equality Act.
[7]
See
Social
Justice Coalition and Others v Minister of Police and Others
2019
(4) SA 82
(WCC) at paras 67 and 68. This was also confirmed in
the decision of
Manong
and Associates (Pty) Ltd v City Manager, City of Cape Town, and
Others
2009
(1) SA 644
(EqC) at para 12, where Moosa J stated that “[
i
]
n
terms of s 13 of PEPUDA all complainant is required to do in order
to discharge its onus is to make out
a
prima
facie case of discrimination based on race. In that event the
burden of proof shifts to the respondents who must show
either
discrimination did not take place or that the impugned conduct is
not based on race... [T]he rebuttable presumption of
unfair
discrimination which is an evidential burden assists complainant to
cross the hurdle from prima facie proof to proof on
the balance of
probabilities.”
(See
also
Osman
v Minister of Safety and Security and Others
2011 JDR 0228 (WCC) at p24.
[8]
Section
13 (1) (a) and (b) of the Equality Act.
[9]
Id.
fn 4 at para. 37.
[10]
Minister
of Justice and Another v SA Restructuring and Insolvency
Practitioners Association and Others
2018
(5) SA 349
(CC) at para 42.
[11]
Id.
fn. 10 at para 40
[12]
Id. fn 4 at para 109.
[13]
Section
9 (3) of the Constitution of the Republic of South Africa, Act 108
of 1996, provides:
“
The
state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender,
sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language and birth.”
[14]
In
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998
(1) SA 300
(CC) at para 51.
[15]
Id.
fn 4 at para 99.
[16]
Section
14 (2) provides that: “
In
determining whether the respondent has proved that the
discrimination is fair, the following must be taken into account:
(a) The context; (b) the factors referred to in subsection (3); (c)
whether the discrimination reasonably and justifiably differentiates
between persons according to objectively determinable criteria,
intrinsic to the activity concerned
.”
[17]
Section
5 (a) of the Act.
[18]
Id.
f
n
10 at para 79
.
Moseneke ACJ, writing for the majority in
South
African Police Service v Solidarity obo Barnard
2014
(6) SA 123
(CC), observed that the
“
distinction
between numerical targets and quotas lies in the flexibility of the
standard. Quotas amount to job reservation
and are properly
prohibited by section 15 (3) of the
[Employment
Equity]
Act.
The same section endorses numerical goals in pursuit of work place
representivity and equity. They serve as a
flexible employment
guideline to a designated employer.”
[19]
Id.
f
n
4 at para 27.
[20]
Id.
fn 10 at para 80.
[21]
Id.
fn 10.
[22]
Id.
fn 4.
[23]
Id.
fn 4 at para 1.
[24]
South
African Police Service v Solidarity obo Barnard
2014
(6) SA 123 (CC)
[25]
Id.
fn 24
at
para 8.
[26]
Id.
fn 24 at para 44.
[27]
Id.
fn 24 at paras 69-70.
[28]
Id.
fn 24 at para 62.
[29]
Solidarity
and Others v Department of Correctional Services and Others
2016
(5) SA 594
(CC) at para 40.
[30]
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as Amici
Curiae)
2006
(2) SA 311
(CC), read with
Mostert
NO v Registrar of Pension Funds and Others
2018 (2) SA 53
(SCA)
at
para 8.
[31]
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
2005
(6) SA 313 (SCA).
[32]
Id.
fn 31 at para 24, in which paras 136 and 146 in
President
of the Republic of South Africa v South African Rugby Football Union
2000
(1) SA 1
(CC) was referenced.
[33]
Id.
fn 31 at para 25.
[34]
The
Constitution of the Republic of South Africa, Act 108 of 1996 (as
amended) – Section 2:
“
This
Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed
by it
must be fulfilled”.
[35]
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006
(3) SA 247
(CC) para 49.
[36]
Id.
fn 35 at para 50.
[37]
Section
97 (1) (a) (iii).
[38]
Section
109 (1) (a).
[39]
Ibid.
[40]
Id.
fn 10 at para 55.
[41]
Id.
fn 10 para 50.
[42]
Id.
fn 10 at paras 50-52.
[43]
Id.
fn 10 at para 55.
[44]
Albutt
v Centre for the Study of Violence and Reconciliation and Others
2010
(3) SA 293
(CC) at paras 49 -51.
[45]
Id.
fn 4 para 153
[46]
Id.
fn 44
at
para 90.
See
also
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at para 121; and
Matatiele
Municipality and Others v President of the RSA and Others
(No
2)
[2006] ZACC 12
;
2007 (6) SA 477
(CC) at para 40.
[47]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at para 45.
[48]
Biowatch
Trust v Registrar, Genetic Resources, and Others
2009 (6) SA 232
(CC).