Solidarity obo Barnard v South African Police Service (165/13) [2013] ZASCA 177; 2014 (2) SA 1 (SCA); [2014] 2 BLLR 107 (SCA); [2014] 1 All SA 319 (SCA); (2014) 35 ILJ 416 (SCA) (28 November 2013)

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[2013] ZASCA 177
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Solidarity obo Barnard v South African Police Service (165/13) [2013] ZASCA 177; 2014 (2) SA 1 (SCA); [2014] 2 BLLR 107 (SCA); [2014] 1 All SA 319 (SCA); (2014) 35 ILJ 416 (SCA) (28 November 2013)

IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 165/13
Reportable
In
the matter between:
SOLIDARITY
OBO MRS R M
BARNARD
........................................................
Appellant
and
SOUTH
AFRICAN POLICE
SERVICE
.............................................................
Respondent
and
VERENIGING
VAN REGSLUI VIR AFRIKAANS
....................................
Amicus
Curiae
Neutral
Citation:
Solidarity
obo Barnard v SAPS (165/2013)
[2013] ZASCA 177
(28 November 2013).
Coram
:
NAVSA ADP, PONNAN, TSHIQI & THERON JJA & ZONDI AJA
Heard
:
6 November 2013
Delivered
:
28 November 2013
Summary
:
Employment Equity Act 55 of 1998
- Employment Equity Plan devised in
terms thereof - white female police captain not appointed as
Superintendent despite being
evaluated as best candidate -
competing African male candidates not appointed - sought to be
justified by National Commissioner
of Police on the basis that there
was no discrimination because competing candidates had not been
appointed and that the appointment
of a white female would affect
representivity and militate against employment equity - also
contended that post not ‘critical’
- held that there had
been discrimination on the basis of race - that the SAPS had not
discharged the onus of showing that the
discrimination was fair -
that classifying the position as not being ‘critical’ was
contrived - that the Employment
Equity Plan could not be mechanically
and rigidly applied - not an absolute bar to appointment of the
complainant - discussion
of the difficulties attendant upon
transforming society.
ORDER
On
appeal from: The Labour Appeal Court, Johannesburg sitting as court
of appeal (Mlambo JP (Davis and Jappie JJA, concurring).
The
following order is made:
1.
The appeal is upheld with costs
including the costs of two counsel.
2.
The order of the Labour Appeal Court is
set aside and substituted as follows: ‘The appeal is dismissed
with costs.’
JUDGMENT
Navsa
ADP, (Ponnan, Tshiqi & Theron JJA and Zondi AJA concurring):
[1]
This appeal, which deals with the
application of the Employment Equity Act 55 of 1998 (EEA) and an
Employment Equity Plan (EEP)
devised in terms thereof, is a
peculiarly South African tale. It demonstrates the difficulties we
face in forging a future in which
everyone ultimately will have a
place in the sun. In our journey towards that end we have in
juxtaposition those who were previously
denied opportunities and
those who had them. In redressing the skewed situation created by our
racist past, and to recalibrate
and achieve a balanced society, there
has to be an accommodation and a scrupulous adherence to fairness. It
is that exercise that
has as a consequence difficult, awkward and
even acrimonious moments for those who find themselves in
contestation and for society
as a whole. Sometimes we get it right
and sometimes we get it wrong. We are, of course, dealing with the
legacy of an institutionalised
racially divisive past, the effect of
which continues to haunt us as a nation recently come to democratic
values. Put simply, we
are experiencing nationhood’s growing
pains.
[2]
The appeal concerns the grievance of an
erstwhile police captain, who twice applied unsuccessfully for a
promotion to the position
of Superintendent in a specialised unit of
the respondent, the South African Police Service (SAPS). It is the
second rejection
that is the subject of the present appeal. Her
grievance is that despite it being admitted that she was the best
candidate for
the position she was denied the promotion solely
because she was white and that such conduct on the part of her
employer, the SAPS,
constituted unfair discrimination. The question
is whether that claim is justified. The background is set out
hereafter.
[3]
The appellant is Solidarity, a
registered trade union, representing the interests of Renate Mariette
Barnard (Barnard), who at the
material times to the dispute was a
police captain. This court granted an application admitting the
Vereniging van Regslui vir
Afrikaans as amicus curiae. The amicus
presented written and oral argument in support of Solidarity’s
case.
[4]
At the time of the hearing of the appeal
Barnard was a Lieutenant-Colonel in the SAPS. The promotion position
that Barnard applied
for, which is at the centre of this dispute, no
longer exists and consequently her claim in the Labour Court, the
Labour Appeal
Court (LAC) and before us was limited to compensation
in the form of the difference in remuneration that she would have
received
had she been appointed to the position.
[5]
Barnard joined the police force in 1989.
Her father had been a policeman and as a child her only career
ambition had been to be
a policewoman. She worked her way through the
ranks and it appears that her single-mindedness and talents saw her
rise rapidly.
From 1996 to 2004 she was the branch commander at
Hartebeespoort Dam Detective Services where she was ultimately
responsible for
the investigation of all crimes in that particular
station area. She was promoted to the rank of captain in 1997. Due to
a restructuring
she was transferred to a bigger division, namely
Brits Detective Services, where she served as a section commander.
[6]
Nine months thereafter Barnard was
transferred to the complaints investigations division at head office,
which at that stage was
called National Evaluation Services (NES).
That displacement is called a lateral transfer, which meant that she
remained on the
rank of captain.
[7]
In her testimony in the Labour Court,
Barnard explained what the NES entailed. It dealt with complaints by
the public and by public
office bearers concerning the broad spectrum
of police services. NES staff scrutinised newspapers for negative
publicity. The majority
of complaints were about inadequate
investigations but they also included corruption and poor police
behaviour. Barnard was sometimes
required to accompany evaluation
teams when they paid visits to specialised units such as the Family
and Child Sexual Offences
unit. She had done a special course and had
served as a family and child sexual offences investigating officer
for quite some time
and her expertise in that regard was called upon
from time to time. Her duties at NES required extensive interaction
with members
of the public. She testified that complaints come from a
variety of sources including the offices of the President, the
Minister
of Police, the National Commissioner of the SAPS (the
National Commissioner) as well as from the public. She was of the
view that
her extensive experience as an operational officer ensured
that she was well-placed to understand the dynamics of daily life in

the SAPS, and her placement at head office made her aware that
sometimes perspectives differed.
[8]
During September 2005, whilst Barnard
was at the NES, a new promotion position of Superintendent was
advertised by the National
Commissioner, ostensibly acting in terms
of his powers set out in s 207 of the Constitution and ss 20 and 27
of the South African
Police Service Act 68 of 1995 (the SAPS Act).
The specific job description was to ‘evaluate and investigate
priority and
ordinary complaints nationally’. It was described
as post 6903. In her statement of case in the Labour Court, Barnard
took
the view that the National Commissioner, in advertising the
post, must have perceived the need to create a new post of
Superintendent
within the NES ‘aimed interalia at ensuring the
optimal utilisation of human, logistical and financial resources
allocated
to the post’. She went on to state: ‘The
position was furthermore created in order to ensure and improve
service delivery
by the Respondent to the public’. Those
assertions were uncontested.
[9]
Barnard’s
application to be appointed to post 6903 and its outcome is the
prelude
to the dispute that gave
rise to the litigation culminating in the present appeal. Barnard’s
case is an unfair discrimination
case based on the application of the
EEA. In essence, it is an equality driven complaint. Section 6 of the
EEA prohibits unfair
discrimination on listed grounds, as does s 9 of
the Constitution, the whole of which reads as follows:
‘
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2)
Equality includes the full and equal
enjoyment of all rights and freedoms. 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.
(3)
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.
(4)
No person may unfairly discriminate
directly or indirectly against anyone on one or more grounds in terms
of subsection (3). National
legislation must be enacted to prevent or
prohibit unfair discrimination.
(5)
Discrimination on one or more of the
grounds listed in subsection (3) is unfair unless it is established
that the discrimination
is fair.’
[10]
In Minsterof Finance & another v Van
Heerden
[2004] ZACC 3
;
2004 (6) SA 121
(CC) the Constitutional Court, in dealing
with the approach to be taken in relation to claims of unfair
discrimination based on
the equality clause in the Constitution, not
unlike complaints in relation to the application of the EEA, pointed
out that the
achievement of equality goes to the bedrock of our
constitutional architecture. Moseneke J explains why the achievement
of equality
preoccupies our constitutional thinking. Redress and
restoration are the driving force behind the positive duty to take
steps to
promote equality. It is necessary to quote at some length
from that decision:
‘
[23]
For good reason, the achievement of equality preoccupies our
constitutional thinking. When our Constitution took root a decade
ago
our society was deeply divided, vastly unequal and uncaring of human
worth. Many of these stark social and economic disparities
will
persist for long to come. In effect the commitment of the Preamble is
to restore and protect the equal worth of everyone;
to heal the
divisions of the past and to establish a caring and socially just
society. In explicit terms, the Constitution commits
our society to
“improve the quality of life of all citizens and free the
potential of each person”.
[24]
Our supreme law says more about equality
than do comparable constitutions. Like other constitutions, it
confers the right to equal
protection and benefit of the law and the
right to non­discrimination. But it also imposes a positive duty
on all organs of
state to protect and promote the achievement of
equality - a duty which binds the judiciary too.
[25]
Of course, democratic values and
fundamental human rights espoused by our Constitution are
foundational. But just as crucial is
the commitment to strive for a
society based on social justice. In this way, our Constitution
heralds not only equal protection
of the law and non-discrimination
but also the start of a credible and abiding process of reparation
for past exclusion, dispossession,
and indignity within the
discipline of our constitutional framework.
[26]
The jurisprudence of this Court makes
plain that the proper reach of the equality right must be determined
by reference to our history
and the underlying values of the
Constitution. As we have seen a major constitutional object is the
creation of a non-racial and
non-sexist egalitarian society
underpinned by human dignity, the rule of law, a democratic ethos and
human rights. From there emerges
a conception of equality that goes
beyond mere formal equality and mere non-discrimination which
requires identical treatment,
whatever the starting point or impact.’
[11]
In order for the reader to follow and
appreciate the remainder of the narrative it is necessary, at this
stage, to deal with:
(a)
material provisions of the EEA,
(b)
relevant parts of the EEP, and
(c)
applicable sections of a National Instruction (1/2004) issued by the
National Commissioner in terms of s 25 of the SAPS Act.
[1]
[12]
The EEA’s purpose is spelt out in
s 2:
‘
The
purpose of this Act is to achieve equity in the workplace by -
(a)
promoting
equal opportunity and fair treatment in employment through the
elimination of unfair discrimination; and
(b)
implementing affirmative action
measures to redress the disadvantages in employment experienced by
designated groups, in order to
ensure their equitable representation
in all occupational categories and levels in the workforce.’
That
purpose is given effect to inter alia through the provisions quoted
in the following paragraphs.
[13]
Section 5 of the EEA obliges employers
to take steps to promote equal opportunity in the workplace by
eliminating unfair discrimination
in any employment policy or
practice. Section 6(1) emphatically prohibits unfair discrimination:
‘
(1)
No person may unfairly discriminate, directly or indirectly, against
an employee, in any employment policy or practice, on one
or more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour,
sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language and birth.’
However,
s 6(2) recognises that: ‘(2) It is not unfair discrimination
to-
(a)
take affirmative action measures
consistent with the purpose of this Act; or
(b)
distinguish, exclude or prefer any
person on the basis of an inherent requirement of a job.’
Designated
groups is defined as meaning ‘black people, women and people
with disabilities’.
[14]
Section 11 of the EEA is important in
determining the outcome of this appeal. It provides:
‘
Whenever
unfair discrimination is alleged in terms of this Act, the employer
against whom the allegation is made must establish
that it is fair.’
[15]
Affirmative Action measures are dealt
with in section 15(1) of the EEA:
‘
(1)
Affirmative action measures are measures designed to ensure that
suitably qualified people from designated groups have equal

employment opportunities and are equitably represented in all
occupational categories and levels in the workforce of a designated

employer.’
[16]
Section 15(3) reads as follows:
‘
(3)
The measures referred to in subsection (2)(d) include preferential
treatment and numerical goals, but exclude quotas.’(My

emphasis)
[17]
Section
20 of the EEA obliges a designated employer,
[2]
such as the SAPS, to prepare and implement an employment equity plan
‘which will achieve reasonable progress towards employment

equity in that employer’s workforce’. Such a plan must
state the objectives to be achieved for each year; the affirmative

action measures to be implemented as required by s 15(2); and, where
underrepresentation has been identified, the numerical goals
to
achieve equitable representation of suitably qualified people from
designated groups within occupational categories and levels
in the
workforce. The plan must set out a timetable within which equitable
representation is to be achieved and the strategies
to that end.
Sections 20(2)(d)-(i) provide:
‘
(d)
the timetable for each year of the plan
for the achievement of goals and objectives other than numerical
goals;
(e)
the duration of the plan, which may
not be shorter than one year or longer than five years;
(f)
the procedures that will be used to
monitor and evaluate the implementation of the plan and whether
reasonable progress is being
made towards implementing employment
equity;
(g)
the internal procedures to resolve
any dispute about the interpretation of implementation of the plan;
(h)
the persons in the workforce,
including senior managers, responsible for monitoring and
implementing the plan; and
(i)
any other prescribed matter.’
Under
s 1 of the EEA, ‘black people’ is defined as ‘a
generic term which means Africans, Coloureds and Indians’.
For
purposes of representivity it appears, from the purpose and
provisions of the Act, that the distinctive population groups are

considered in relation to each other and in relation to white
persons.
[18]
The SAPS adopted and applies an EEP. The
foreword to the plan was written by the then Minister for Safety and
Security. The following
part is significant:
‘
Whereas
the focus of employment equity is on black people, women and persons
with disabilities, no employment policy or practice
will be
established as an absolute barrier to prospective or continued
employment or advancement of persons not from designated
groups.’
[19]
The executive summary of the SAPS’
Employment Equity Plan reads as follows:
‘
The
subsequent Employment Equity Plan of the South African Police Service
has been developed. It further commits itself to the implementation

of affirmative action measures to ensure that suitably qualified
persons from designated groups are equally represented in all

occupational categories and levels in the workforce. The tone and
ethos are set to identify and eliminate the artificial employment

barriers which adversely affect people from designated groups. The
transformation process will help to expedite the promotion of

diversity and the successful implementation of the Employment Equity
Plan based on equal dignity and respect for all, and ensuring

reasonable accommodation available for people with disabilities.
Effective procedures have been implemented to monitor and evaluate

reasonable progress towards Employment Equity in every sphere of
employment in the South African Police Service with the objective
of
achieving service delivery improvement which permeates across all
sectors of Human Resource practices.’
[20]
The
EEP had set itself the goal of achieving employment equity targets
agreed upon by the year 2004.
[3]
It is to be noted that the EEP was devised with due regard to the
different ‘business units’ into which the SAPS is

divided. The EEP records that the National Commissioner is
responsible for championing its implementation and is the ultimate
authority for its overall management.
[21]
The National Instruction (1/2004)
referred to earlier, in dealing with the advertising of vacancies
identified for promotion purposes,
states that the National
Commissioner may reserve any vacant post advertised for promotion
purposes, on the basis of:
‘
(a)
the employment equity and the strategic objectives of the Service;
(b)
a
prevailing lack of representivity that cannot be expected to be
addressed through normal promotion processes;
(c)
a
lack of applications received from candidates whose promotion or
appointment would enhance representivity; or
(d)
applications received from candidates
whose promotion or appointment would promote representivity, indicate
that they require further
development to make them suitably qualified
to fill the higher posts.’
[22]
The National Instruction sets out, in
some detail, the ‘[g]eneric functions of evaluation panels
(whether interviews are conducted
or not)’. The material part
is set out hereafter:
‘
(2)
A panel must, in considering the applications for promotion, promote
equal opportunities, fair treatment, employment equity
and advance
service delivery by the Service.’
[23]
Simply put, the EEA was designed to
assist in the national struggle to achieve an egalitarian society by
putting in place measures
to overcome historical obstacles and
disadvantages and providing equal opportunities for all. The most
virulent opponents of such
measures will be hard put to argue against
its noble purpose. Likewise, the most ardent supporters of such
measures, I venture,
would find it difficult to argue with any
conviction that the end result envisaged at the beginning of this
paragraph can be obtained
by the mechanical application of formulae
and numerical targets. Such an exercise would in any event fall foul
of s 15(3) of the
EEA, which prohibits quotas. The balance to be
achieved in our path to a noble end is what this case is all about.
[24]
I return to deal with the facts of the
case. It is significant that in advertising post 6903 the National
Commissioner had not reserved
the vacancy for a ‘designated
group’ as defined in the EEA. For present purposes it is not
necessary to take a view
on whether such a reservation, without more,
is legitimate. It is necessary to record that, in this appeal, the
validity of the
SAPS’ EEP is uncontested.
[25]
In response to post 6903 being
advertised, Barnard and six other applicants, four black and two
white persons, applied to be appointed.
On 3 November 2005 all the
applicants were interviewed. Six people constituted the interview
panel which was racially diverse.
It was made up of senior police
officers, including two Superintendents, presumably because they
would best understand the nature
and demands of the post being
applied for. Barnard received an average score of 86.67 per cent
which was the highest by far.
[26]
The interview panel recommended four
candidates for appointment in the following order of preference:
‘
(i)
Capt RM Barnard;
(ii)
Capt JF Oschmann;
(iii)
Capt Aschendorf;
(iv)
Capt Shibambu.’
The
expressions ‘interviewing panel’ and ‘evaluation
panel’ are used interchangeably.
[27]
There was a 17.5 per cent difference
between Barnard and Capt Shibambu. In its recommendation the
interviewing panel considered
that gap to be too great to warrant
recommending Captain Shibambu as a first choice candidate as it would
compromise service delivery.
The panel took the view that Barnard’s
appointment would not aggravate the current lack of racial
representivity at the Superintendent
level, which in levels of rank
in the police hierarchy is level nine, because the representivity of
the NES as a whole would not
be affected as Barnard, if appointed,
would remain part of it.
[28]
On 9 November 2005 the panel had a
meeting with Divisional Commissioner Rasegatla to discuss its
recommendation. This occurred in
accordance with the National
Instruction. The Divisional Commissioner was clearly troubled that
the SAPS’ directives were
not adequate in advising how
employment equity was to be weighed against the obligation within the
public service to provide efficient
services. In current jargon the
concern expressed by Commissioner Rasegatla involves ‘service
delivery’. This concern
is reflected in the minutes of that
meeting. The meeting wrestled with the problem experienced in the
NES, namely the under-representivity
of African males and females.
Commissioner Rasegatla noted that appointing any one of the first
three recommended candidates would
aggravate the situation. He
decided that the post should remain ‘unfilled’ for
employment equity reasons. Post 6903
was ultimately withdrawn. It is
plain that Barnard’s race was the reason she was not appointed
to post 6903.
[29]
It is necessary to record that three
months after post 6903 was withdrawn, a white male Superintendent was
‘laterally’
transferred to the NES presumably to fill-in.
[30]
During May 2006 the same vacancy now
called post 4701 was advertised as a ‘non-designated’
post and Barnard once again
applied for the position. She was
shortlisted and interviewed on 26 June 2006, this time with seven
other candidates, four African
males, one African female, one
Coloured male and one White male. The interviewing panel which once
again was racially diverse consist
ed of senior police
officers:
Asst Comm AJ Burger –
Chairperson
Dir Molaba - Member
Dir Rossouw - Member
Dir Mamogale –
Member
Snr Supt Netsera - Member
SPO A Smith - Secretary
S/Supt Jonker - Asst
Secretary
[31]
Three weeks before the interview, in a
letter dated 7 June 2006, addressed to all Provincial Commissioners,
Divisional Commissioners
and Deputy National Commissioners, the
Deputy National Commissioner clearly stated that interviewing panels
should focus, inter
alia, on the appointment of personnel who would
enhance service delivery.
[32]
The panel recommended for appointment
(one of) three candidates in the following order of preference:
(i)
Barnard (with an assessment score of
85.33 %);
(ii)
Capt Mogadima (with an assessment score
of 78%);
Capt
Ledwaba (with an assessment score of 74%).
Barnard’s
score was 7,33 per cent more than Capt Mogadima, the second choice
candidate.
[33]
The interviewing panel’s
considerations were as follows:‘
The
appointment of Captain Barnard will not enhance representivity on
salary level 9 but it will
not
aggravate the current Divisional Representivity figures as she is
already part thereof. Appointing the candidate on salary level
9 will
however enhance representivity on salary level 8 in respect of the
over-representation of white females on that level. Irrespective
of
the difference in percentage between the first and second choice
candidates, Capt Barnard was the only candidate that during
the
interview displayed an unique blend of passion and enthusiasm to deal
with members of the community that are unsatisfied with
the services
rendered by the South African Police Service. During the interview,
she also displayed a high level of commitment
towards the SAPS and an
eagerness to contribute towards enhanced service delivery.’(My
emphasis)
[34]
It is necessary to record that, after post 4701 was advertised, the
SAPS issued guidelines for equity targets for the 2006/2007
financial
year which were said to be in line with the EEP. It was agreed
between the parties that the table set out hereafter correctly
sets
out the SAPS employment equity targets and the race and gender
representivity levels at levels nine and ten:
A/M
A/F
I/M
I/F
C/M
C/F
W/M
W/F
Disabled
Vacant
Posts
(REP)
TOTAL
Current
6
6
1
0
1
1
8
6
29
EE
Target
13.9
9.2
0.5
0.4
1.6
1.1
2
1.3
0.6
1
Over/Under
Representation
-8
-3
0
0
-1
0
6
5
-1
Suggested
Allocation
1
The
table illustrates that, at level nine, white females were over
represented by five employees. By contrast African males were
under
represented by eight, African females under represented by three, and
Coloured males and the disabled were each under represented
by one.
Consequently, the suggested allocation of the positions at levels
nine and ten was one to be allocated to an African male.
African
males were the most under represented category.
[35]
On 30 June 2006 a meeting was once again
held between the interviewing panel and Divisional Commissioner
Rasegatla. This time he
supported Barnard’s appointment. His
motivation, as recorded in the minutes, is set out hereafter:
‘
[F]ailing
to recognize and appoint this candidate would really send a wrong
signal to the candidate. Appointments and promotions
are also made to
address service delivery, and if the candidate in two years
constantly applies for the post and is constantly
rated and
recommended as the best candidate, it clearly indicates that she is
the best candidate for promotion. Other candidates
who would have
improved representivity within the Division had approximately one
year to improve on themselves to compete with
the recommended
candidate. However, she still beat them.
The
panel strongly believed that in the interest of service delivery, and
having denied this candidate the opportunity for promotion
during the
previous promotion phase, that the candidate should be appointed as
recommended by the respective promotion panel.’
[36]
Rasegatla’s written recommendation
dated 10 July 2006 to the National Commissioner that Barnard be
appointed to post 4701
read as follows:
‘
The
candidate is recommended as the panel’s first choice candidate
for the post. She has proven competence and extensive experience
at
National level in the CORE functions of the post and was rated the
highest by the promotion panel. She obtained an average rating
of
85.33% whereas the second choice candidate, obtained a rating of 78%.
The appointment of the candidate will not enhance representivity
on
salary level nine but it will not aggravate the current Divisional
Representivity figures as she is already part thereof. Appointing
the
candidate on salary level nine will however create an opportunity to
enhance representivity on salary level eight in respect
of the
overall representation of white females on that level.
The
same post was advertised during 2005 (Phase 2/2005/6) but not filled
due to representivity. Capt. Barnard was rated in first
position in
the previous promotion phase and was
recommended
by the promotion panel and is again rated first by the promotion
panel during the current promotion phase.
In
terms of the provision of par 13(3) of National Instruction 1/2004
she was not promoted during the previous promotion phase despite
the
fact that she was the best candidate. As a result, the post was
withdrawn and was re-advertised during the current promotion
phase.
During the current promotion phase she was again among the
shortlisted candidates and was, once again rated the best candidate.
Failure
to recognize and appoint this candidate would really send a wrong
signal to the candidate. Appointments and promotions are
also made to
address service delivery, and if the candidate in two years
constantly applies for the post and is constantly rated
and
recommended as the best candidate, it clearly indicates that she is
the best candidate for promotion.
Other
candidates who would have improved representivity within the Division
had approximately one year to improve on themselves
to compete with
the recommended candidate. However, she still beat them.
National
Evaluation Service strongly believes that in the interest of service
delivery, and having denied this candidate the opportunity
for
promotion during the previous promotion phase, that the candidate
should be appointed as recommended by the panel.’
[37]
On 20 July 2006 a meeting was held
between Provincial Commissioners and Divisional Commissioners to
discuss the recommendations
for the promotional posts, including post
4701. In respect of post 4701 the following is recorded:
‘
The
Division: National Evaluation Services, explained why representivity
could not be achieved. The chairperson responded that candidates
with
potential should also be considered - the posts are not
critical/scarce skills.
The
chairperson concluded the meeting by saying that the recommendations
will be presented to the National Commissioner for consideration.’
[38]
Despite the
recommendations, the National Commissioner did not approve the
appointment of any of the
recommended candidates. In a letter dated 27 July 2006 signed on
behalf of the National Commissioner,
Divisional Commissioner
Rasegatla’s recommendation was responded to. The following are
the material parts of that letter:
‘
2.
After due consideration of your recommendations, the National
Commissioner has decided not to approve your recommendations, for

posts 4702/4701/4710 due to the following reasons:
*
your recommendations do not address
representivity; and
*
the posts are not critical and the
non-filling of the posts will not affect service delivery. The posts
should be re-advertised
during the phase 2-2006/7 promotion process,
during which process you should attempt to address representivity.’
[39]
It is to be noted that even though the
post for which Barnard applied has now been withdrawn due to
restructuring, that post was
in fact re-advertised after she had been
rejected for appointment to post 4701.
[40]
Now doubly aggrieved, Barnard filed a
complaint in terms of the SAPS’ grievance procedure. I consider
it necessary to reproduce
the written reply to her grievance in full:
‘
2.
The National Commissioner has decided not to approve the
recommendation for post 4701 due to the following reasons:
-
the recommendation did not address
representivity; and
-
the post is not critical and the
non-filling of the post will not affect service delivery.
3.
The National Commissioner further
directed that the post should be re-advertised during the next
promotion process, during which
process it should be attempted to
address representivity.
4.
Although the officer formed part of the
relevant Business Unit, representivity should be achieved at all
levels.
5.
With reference to the referral to the
lateral placement of a white male at the division, it has to be
mentioned that lateral placements
are not handled in terms of the
prescripts of National Instruction 1/2004 on Promotions.
6.
The officer’s attention is also
drawn to the fact that in terms of National Instruction 1 of 2004
(Promotions), the National
Commissioner is not obliged to fill an
advertised post.
7.
It has to be mentioned that the relevant
post was re-advertised in the phase 2-2006/7 (post 5101) promotion
process, but the post
was withdrawn and it was indicated that the
filling of the post will be dealt with once the restructuring of the
Division has been
finalized. This decision further confirms the
decision that the post is not a critical post and that the
non-filling of the post
will not affect service delivery.
8.
The status quo with regard to the
position of the officer is maintained.
9.
Please inform the officer accordingly.’
The
letter was signed by JJ van Rooyen, Director Section Head: Promotions
and Awards.
[41]
Barnard referred a dispute to the
Commission for Conciliation, Mediation and Arbitration (CCMA) which
remained unresolved. The dispute
was then adjudicated in the Labour
Court (Pretorius AJ). In the view of the Labour Court, an EEP must be
applied fairly with due
regard to the affected individual’s
constitutional right to equality and representivity must be weighed
against that right.
Pretorius AJ stated that the right to dignity of
affected individuals is also implicated. He reasoned that it was not
appropriate
to apply, without more, numerical goals set out in the
EEP. Such an approach, he said, was too rigid. At para 25.4 of his
judgment
the following is stated:
‘
Where
a post cannot be filled by an applicant from an under-represented
category because a suitable candidate from that category
cannot be
found, promotion to that post should not ordinarily and in the
absence of a clear and satisfactory explanation be denied
to a
suitable candidate from another group.’
[42]
In the three subsequent paragraphs
Pretorius AJ stated:
‘
[25.6]
There must be a rational connection between the provisions of the
Employment Equity Plan and the measures adopted to implement
the
provisions of that plan.
[25.7]
In appropriate circumstances at least, the efficient operation of the
Public Service or what is termed “service delivery”
is a
relevant factor to be taken into account in the implementation of an
employment equity plan.
[26]
The Respondent bears the onus to show
that the unfair discrimination alleged by the Applicant is fair. This
means that the Respondent
must allege sufficient evidence to show, on
a balance of probabilities, that its decision was fair. In order to
do so the Respondent
should place before the court sufficient
evidence to enable it to understand this reasoning behind and
justification for its decision
so that the court is in a position
properly to decide the matter.’
[43]
Based on the facts that the National
Commissioner has the power to make appointments of the kind in
question, and the recommendations
do not necessarily bind him or her,
the Labour Court had regard to what it considered to be scant
evidence on the reasoning and
justification for the National
Commissioner’s decision.
[44]
In this regard, it is to be noted that
the only witness who testified in support of the SAPS’ case in
the Labour Court was
Senior Superintendent Johannes Ramathoka. It is
not an exaggeration to say that the nature of his evidence was
peculiar. He had
no first­hand knowledge of the case or of the
various documents such as the EEP and the National Instruction which
were put
before him. He thus merely confirmed and sought to explain
their contents, and often appropriated to himself the right to
interpret
those documents. He explained the representivity table for
levels nine and ten. He was presented with the minutes of the
meetings
referred to earlier in this judgment and their contents were
read to him. It is difficult to discern the purpose of leading the

evidence in this manner. Much of his evidence was plainly
inadmissible. And that which was admissible carried little, if any,
evidential weight. What is clear is that apart from the cryptic
statement in the letter signed on behalf of the National Commissioner

and the minutes of the meeting at which he was present which mirrored
that statement, we have no insight into the National Commissioner’s

reasoning and for his failure to respond fully to the motivation by
the interviewing panel and Divisional Commissioner Rasegatla.
Barnard
was the only witness who testified in support of her case.
[45]
Pretorius AJ stated that in the absence
of a fully reasoned decision it was safe to assume that the National
Commissioner did not
regard the African candidates that were
recommended as suitable. He found that the SAPS had failed to
discharge the onus of showing
that the National Commissioner’s
decision not to appoint Barnard was fair. He considered that he had
the power to make an
order promoting Barnard to the post of
Superintendent and did so with effect from 27 July 2006.
[46]
Aggrieved by that decision, the SAPS
appealed to the Labour Appeal Court (Mlambo JP, Davis and Jappie JJA
concurring). That court
held unanimously that no discrimination had
occurred because no appointment had been made. The Labour Appeal
Court (the LAC) went
on to state that it was a misconception to
‘render the implementation of restitutionary measures subject
to the right of
an individual’s right to equality’. The
LAC took the view that, without restitutionary measures ‘the
achievement
of equitable treatment will continue to elude us as a
society’. Mlambo JP held that the Labour Court had erred in
treating
the implementation of restitutionary measures as subject to
the individual conception of a right to equality. That approach, so

he reasoned, ‘promotes the interests of persons from
non-designated categories to continue enjoying an unfair advantage
which they had enjoyed under apartheid. Treating restitutionary
measures in this manner is surely bound to stifle legitimate
constitutional
objectives and result in the perpetuation of
inequitable representation in the workplace’.
[47]
The LAC found that the EEP bound all of
the SAPS’ employees. It concluded: ‘The application of
such plans therefore
cannot be relegated as suggested by the Labour
Court.’ In dealing with Barnard’s claim of discrimination
the LAC stated:
‘
[W]hen
one talks of discrimination, that is one is in fact, alleging that a
differentiation of some sorts between and/amongst people
has taken
place. On the facts of the case before us, there is no evidence of
such differentiation. We are here dealing with a matter
where no
action by way of appointment took place, meaning that no overt
differentiation occurred.’
Having
already held that there had been no discrimination, the LAC, after
considering the SAPS’ quest for representivity,
contradictorily
said the following:
‘
Discriminating
against Barnard in the circumstances of this case was clearly
justifiable.’
[48]
Mlambo JP stated that it could not be
argued that the EEP sought the appointment of only black employees
irrespective of other criteria.
He noted that one of the criteria in
the EEP is suitability and went on to state:
‘
That
to me suggests that should a black candidate be unsuitable that
candidate will not be appointed. This is also defined in National

Instruction 1. Clearly, as was aptly argued by counsel for the
amicus, the Employment Equity Plan does not sanction mediocrity
or
incompetence. Manifestly this was not the case with the two black
candidates in this case.’
[49]
The LAC held that the Labour Court’s
conclusion that the failure to appoint Barnard compromised service
delivery was unfounded.
In this regard Mlambo JP stated that since
the National Commissioner is the accounting officer for the SAPS, he
is the only person
answerable for service delivery. In this regard
the court concluded as follows:
‘
It
is not open to a court to dictate to the National Commissioner that
he is compromising service delivery and should fill a post.’
In
the result, the LAC upheld the appeal by the SAPS and set aside the
Labour Court’s order, substituting it with an order
dismissing
the application. That decision is before us
with
the leave of this court.
[50]
I
turn to consider the correctness of the LAC’s decision. The
starting point for enquiries of the kind under consideration
is to
determine whether the conduct complained of constitutes
discrimination and, if so, to proceed to determine whether it is

unfair.
[4]
When a measure is challenged as violating the Constitution’s
equality clause, its defender could meet the claim by showing
that it
was adopted to promote the achievement of equality as contemplated by
s 9(2), and was designed to protect and advance persons
disadvantaged
by prior unfair discrimination.
[5]
Similarly, as stated above, s 11 of the EEA provides that whenever
unfair discrimination is alleged, the employer against whom
the
allegations is made must establish that it is fair.
[51]
In my view, the LAC’s conclusion
that Barnard was not discriminated against - contradicted in a later
paragraph of its judgment
- because the vacancy had not been filled,
is flawed. In Gordon v Department of Health: KwaZulu-Natal
[2008] 11
BLLR 1023
(SCA) Mlambo JA, as he then was, in considering the
position where a black candidate was appointed ahead of a white
candidate recommended
by a selection panel, stated that: ‘It
can hardly be contested that the appellant was discriminated against
on the basis
of his colour and race’. In that case the appeal
was upheld on the basis that the Department of Health had no policy
or plan
in place for the implementation of affirmative action
measures and that consequently the discrimination complained of was
unfair.
In the present case Mlambo JP took the view that the
application of the EEA was justification for Barnard’s
non-appointment.
[52]
If a senior African female or male
police officer had all of Barnard’s skills and had achieved the
same interviewing score,
that person would most surely have been
appointted to post 4701. It can ‘hardly be contested’
that in the present case
Barnard was not appointed because she was a
white female. In Gordon the appellant’s grievance, like
Barnard’s, was
that he had not been appointed when he should
have been. The LAC, in my view, erred in holding that the fact that
no appointment
had been made meant that there had been no
discrimination.
[53]
Of course, if the National Commissioner
had appointed one of the African male candidates who had also been
interviewed and explained
that, although the latter’s interview
score was lower than Barnard’s, he was nevertheless suitable
for the job and
that he approved the appointment as an affirmative
action measure, and assuming further that the explanation was borne
out by the
objective facts, the SAPS would have established that the
discrimination complained of was fair and the present debate might
well
not have ensued.
[54]
In
Van Heerden, Moseneke J reminded us that it is ‘incumbent on
courts to scrutinise in each equality claim the situation
of the
complainants in society; their history and vulnerability; the
history, nature and purpose of the discriminatory practice
and
whether it ameliorates or adds to group disadvantage in real life
context, in order to determine its fairness or otherwise
in the light
of the values of our Constitution. In the assessment of fairness or
otherwise a flexible but “situation sensitive"
approach is
indispensable because of shifting patterns of hurtful discrimination
and stereotypical response in our evolving democratic
society’.
[6]
(My emphasis.)
[55]
Having determined that there was
discrimination based on a specified ground, namely race, it is
necessary to turn to the next question;
whether the SAPS has
established that the discrimination was fair. In this regard, the
Constitutional Court in Harksen stated the
following:
‘
The
test of unfairness focuses primarily on the impact of the
discrimination on the complainant and others in his or her
situation.’
Although
that case dealt with direct reliance on the equality clause in the
Interim Constitution, the same test, in my view, would
apply in
relation to reliance on s 6 read with s 11 of the EEA.
[56]
It will be recalled that the
justification on behalf of the National Commissioner for Barnard’s
non-appointment was scant.
The first reason provided to Barnard and
the recommendation panel was that her appointment to the post would
not address representivity.
Second it was stated that the posts were
not ‘critical’ and that the non­filling of the posts
would not affect
service delivery.
[57]
Dealing with transformation which
encompasses the notion of representivity is not easy. In Bato Star
Fishing (Pty) Ltd v Minister
of Environmental Affairs & others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) paras 75 - 76 the Constitutional Court said the
following:
‘
The
commitment to achieving equality and remedying the consequences of
past discrimination is immediately apparent in s 9(2) of
the
Constitution. That provision makes it clear that under our
Constitution “[e]quality includes the full and equal enjoyment

of all rights and freedoms”. And more importantly for present
purposes, it permits “legislative and other measures
designed
to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination”. These measures
may be
taken “[t]o promote the achievement of equality”.
But
transformation is a process. There are profound difficulties that
will be confronted in giving effect to the constitutional
commitment
of achieving equality. We must not underestimate them. The measures
that bring about transformation will inevitably
affect some members
of the society adversely, particularly those coming from the
previously advantaged communities. It may well
be that other
considerations may have to yield in favour of achieving the goal we
fashioned for ourselves in the Constitution.
What is required,
though, is that the process of transformation must be carried out in
accordance with the Constitution.’
[58]
To determine whether the discrimination
was fair, the facts in this case require closer and scrupulous
scrutiny. Regrettably, this
is not an exercise that the LAC embarked
on. This appeal turns on the facts and it would be presumptuous to
assert and foolish
to assume that this decision will be a Merlin-like
incantation to address the varied cases likely to come before courts
in relation
to the application of the EEA. In Van Heerden, as stated
above, the assessment of fairness is said to require a flexible but
‘situation
sensitive’ approach.
[59]
In making the assessment it should be
borne in mind that Barnard herself was part of a designated group,
namely, she was female.
One cannot ignore that she had previously
applied for the same position and not only was she not appointed on
the basis of representivity
but a white male was moved laterally to
fill-in, and the position was re-advertised. Since race
representivity within organs of
state is graphically obviously
apparent, one could rightfully question how appointing somebody
temporarily from a non-designated
group promotes the employment
equity cause and the image presented to the public and the SAPS
itself.
[60]
It is safe to assume that the
interviewing panels are constituted to serve a purpose. They are a
management tool, comprised in the
present case of senior police
officers to be of assistance to the National Commissioner when he
makes a final decision on whether
to fill a vacancy. Thus, one can
conclude that even though he is not bound by a panel’s
evaluation and recommendation, the
National Commissioner must at the
very least give consideration to and engage with what is put before
him by them.
He
discounts relevant and material factors at his peril, rendering him
liable to legal
challenge.
[61]
Requiring the input and intervention of
a Divisional Commissioner is another useful management tool and is
sound policy. It ensures
that the person who holds the highest
authority in that division and who must be taken to understand the
dynamics and needs within
his or her geographical area of
jurisdiction and within the management structures of the SAPS
provides his or her insights to enable
the National Commissioner to
arrive at a just decision in terms of the EEA and the EEP. As with
the input from the interviewing
panel it can hardly be argued that
the Divisional Commissioner’s views are without value.
[62]
It is necessary to consider a little
more closely the interviewing panel’s motivation for its
recommendation, as set out in
para 33. It contains more than the fact
of Barnard’s superior score which was close to ten per cent
more than her nearest
rival, which motivated the recommendation. It
was also that she ‘was the only candidate that during the
interview displayed
an unique blend of passion and enthusiasm to deal
with members of the community that are unsatisfied with the services
rendered
by the South African Police Service’. Clearly the
panel, which included three senior black police officers, saw that
quality
as distinctive and one that would enhance the services
rendered by the SAPS. Having regard to Barnard’s evidence
concerning
the nature of the job she was then performing at the NES
as a captain, it appears not only that the NES served an essential
function
within the SAPS, but that the distinctive quality referred
to above would be a commendable advantage in the more senior
managerial
position that she had applied for. Further, the panel saw
fit to note as another distinctive feature, Barnard’s high
level
of commitment toward the SAPS and her eagerness to contribute
toward enhanced service delivery. Under cross-examination she was

placed in the unenviable position of having to answer questions about
whether her rivals for the
position
did not have the same attributes. What is abundantly clear is that
the panel saw these as distinctive characteristics.
[63]
Equally important is Commissioner
Rasegatla’s written recommendation, referred to in para 36 to
the National Commissioner,
which contained a motivation with factors
beyond those stated by the evaluation panel. He took into account
that she had already
once before been overlooked in relation to post
6903, despite being the ‘best candidate’. He considered
it important
that upon her second interview she was yet again rated
the ‘best candidate’. His concern, understandable because
of
his rank and managerial position, that the wrong signal would be
sent to Barnard is not one that can lightly be discounted. Human

resource management both in the private and public sector must be
concerned about morale and cohesion within a workforce. Commissioner

Rasegatla noted that competing candidates had had a year within which
to meet the standard set by Barnard, but failed to seize
the
opportunity. Significantly, in the last sentence of his
recommendation he speaks on behalf of the NES. That sentence bears

repeating:
‘
National
Evaluation Service strongly believes that in the interest of service
delivery, and having denied this candidate the opportunity
for
promotion during the previous promotion phase, that the candidate
should be appointed as recommended by the panel.’
[64]
Counsel on behalf of the SAPS urged us
to consider that representivity at level nine was the crucial factor
and that any beneficial
effect in relation to the lower level which
might result because of Barnard’s promotion to Superintendent
should be discounted.
It will be recalled that both the interviewing
panel and Commissioner Rasegatla took the view that, in the event
that Barnard was
promoted to Superintendent within the NES, it would
free up her position at the lower level (level eight) and present an
opportunity
to enhance representivity within the NES at that level.
That idea is not entirely without merit. Barnard’s promotion
might
thus very well have had the indirect effect of advancing the
employment equity cause.
[65]
If representivity was the genuine driver
behind the National Commissioner’s refusal to appoint Barnard
and if he thought that
either of her two rivals were deserving of
appointment, the compelling conclusion is that he would have
appointed one of them.
In terms of the National Instruction, as
stated earlier, the National Commissioner may reserve a position to
meet employment equity
needs and the strategic objectives of the
SAPS. If representation was the genuine concern, one would have
expected that he would
at the very least have considered that option.
[66]
The Labour Court appears to have been
justified in holding, as it did in para 34 of its judgment, that ‘it
is reasonable to
assume that [the National Commissioner] at least did
not regard the other black candidates who were recommended as
suitable’.
Pretorius AJ went on to say that whatever the
witnesses may have said is of lesser importance because they did not
make the decision.
[67]
Having regard to the importance of the
issue, and considering that his decision not to make a senior
appointment was being impugned,
one would have expected the National
Commissioner to have provided assistance to the Labour Court in
relation to his motivation
and reasoning beyond the cryptic note
signed on his behalf. There is no explanation provided for his
failure to tender any other
evidence in this regard. The effect is
that there is no indication that he grappled with all of the issues
raised by the recommendation
panel and Commissioner Rasegatla. On the
contrary, the indications are that he did not engage with what his
own management team
had put before him.
[68]
The National Commissioner’s
decision not to make the appointment was also defended on the basis
that the EEP would be violated
if he had appointed Barnard. It was
submitted that the representivity imbalance at level nine would be
even more negatively impacted.
It is important to note that the EEP,
in its foreword, states that the focus of employment equity is on
black people, women and
persons with disabilities. In the executive
summary referred to above, it is envisaged that ‘suitably
qualified persons from
designated groups are equally represented in
all occupational categories and levels’. Against the statutory
background and
the policy documents as well as the EEP it was never
contended, nor could it be, that numerical targets and representivity
are
absolute criteria for appointment. Adopting that attitude would
turn numerical targets into quotas which are prohibited in terms
of
the EEA. The LAC, in my view, erred in holding out the EEP as an
absolute legal barrier to Barnard’s appointment. The
EEP’s
foreword makes it clear that whilst the focus is on employment
equity, no employment policy or practise will be established
as an
absolute barrier to the appointment of suitably qualified persons
from non-designated groups.
[69]
It was also sought to justify the
National Commissioner’s non-appointment of Barnard on the basis
that the post was not ‘critical’
and that therefore not
filling it was justified. It is important to note that nowhere in any
legislation relating to any post in
the SAPS can the term ‘critical’
be found. It was agreed between the parties that there is no legal
foundation for
that categorisation. I turn to deal with the
constitutional and statutory provisions that do apply to public
administration, organs
of state and appointments within the SAPS.
[70]
The principles that apply to
administration in every sphere of government, organs of state and
public enterprises are set out in
s 195(1) of the Constitution, which
states:
‘
(1)
Public administration must be governed by the democratic values and
principles enshrined in the Constitution, including the
following
principles:
(a)
A
high standard of professional ethics must be promoted and maintained.
(b)
Efficient, economic and effective
use of resources musts be promoted.
(c)
Public administration must be
development-oriented.
(d)
Services must be provided
impartially, fairly, equitably and without bias.
(e)
People’s
needs must be responded to, and the public must be encouraged to
participate
in policy-making.
(f)
Public administration must be
accountable.
(g)
Transparency must be fostered by
providing the public with timely, accessible and accurate
information.
(h)
Good human-resource management and
carreer-development practices, to maximise human potential, must be
cultivated.
(i)
Public administration must be
broadly representative of the South African people, with employment
and personnel management practices
based on ability, objectivity,
fairness, and the need to redress the imbalances of the past to
achieve broad representation.’
[71]
Section 205(2) and s 205(3) of the
Constitution deal with the establishment of the SAPS and set out its
objects:
‘
(2)
National legislation must establish the powers and functions of the
police service and must enable the police service to discharge
its
responsibilities effectively, taking into account the requirements of
the provinces.
(3)
The objects of the police service are to
prevent, combat and investigate crime, to maintain public order, to
protect and secure
the inhabitants of the Republic and their
property, and to uphold and enforce the law.’
[72]
The SAPS Act is the envisaged national
legislation. It is the National Commissioner who exercises control
and manages the SAPS in
accordance with the provisions of ss 205 and
207 of the Constitution and in terms of s 11 of the SAPS Act. It is
common cause that,
in terms of the Act and the National Instruction,
it is the National Commissioner who is responsible for appointments
of the kind
under consideration. The Constitution and the SAPS Act
envisage a professional, efficient police force that makes effective
use
of resources. Representivity is enjoined. Importantly s 11(2)(a)
requires the National Commissioner to develop a plan before the
end
of each financial year, setting out the priorities and objectives of
policing for the following financial year. Section 11(2)(b)
requires
him to determine the fixed establishment of the SAPS and the grading
of posts. Section 11(2)(c) obliges him to determine
the distribution
of the numerical strength of the SAPS after consultation with the
board, and finally on this aspect, s 11 (2)(d)
requires the National
Commissioner to organise or reorganise the SAPS at national level
into various components, units or groups.
The board referred to in s
11(2)(c) is a Board of Commissioners consisting of National and
Provincial Commissioners presided over
by the National Commissioner,
the function of which is to promote co-operation in the SAPS.
[73]
Having regard to the constitutional
principles that underpin public administration and organs of state,
and the provisions of the
SAPS Act referred to in the preceding
paragraph, it can hardly be contended that a senior position such as
the one under discussion
was not given serious consideration when it
was created and advertised. Put simply, it must have been thought by
all concerned
that it was necessary in furtherance of the SAPS’
mission of providing a professional and efficient police service. As
stated
above, Barnard’s assertions in this regard in her
statement of case in the Labour Court were uncontested. These
considerations
have to be weighed alongside Barnard’s
description of the importance of her job within the NES, including
the role that it
plays in the SAPS meeting its mission as well as the
importance of a managerial position within that division. Against
that background
and in the absence of a reasoned motivation by the
National Commissioner, one is left with the distinct impression that
the explanation
that the post was not filled because it was not
‘critical’ was contrived. This is all the more evident if
one considers
that after the first rejection, a senior Superintendent
was moved laterally to fill-in temporarily. Moreover, the post was
advertised
on no less than three occasions, lending a lie to the
assertion that it was not ‘critical’.
[74]
The LAC adopted the attitude that it is
for the National Commissioner alone to determine whether service
delivery would be affected
by a post not being filled. In my view,
that conclusion cannot be reached without closer scrutiny of the
applicable constitutional
and statutory provisions and the facts set
out in the preceding paragraph. In this regard too, the LAC erred.
[75]
In relation to the assertion on behalf
of Barnard that the failure to appoint her would impact on service
delivery, the following
part of the heads of argument on behalf of
the SAPS, bears repeating:
‘
Given
the paucity of evidence in this respect, it cannot be argued that the
failure to appoint Mrs Barnard prejudiced the interests
of the SAPS.’
[76]\
Given that it bore the onus, the paucity
of evidence is not a virtue for the SAPS. The evidence referred to in
preceding paragraphs
militates against the SAPS’ case (and the
National Commissioner does not assist their cause by not providing
any evidence
in explanation or rebuttal) and the conclusions by the
LAC. The National Commissioner would have done well to remind himself
that
the National Instruction issued by him and which has the force
of law, admonishes evaluation panels, not only to take into account

the promotion of equal opportunities and employment equity but also
to have regard to whether the promotion would advance service

delivery. The letter referred to in para 30 above, sent to all
Provincial Commissioners, Divisional Commissioners and Deputy
National
Commissioners urged the interviewing panel to focus on the
appointment of persons who would enhance service delivery. Failure to

appoint Barnard to a position which, in terms of the regulatory
constitutional and statutory framework must have been necessary
leads
ineluctably to the conclusion that service delivery must have been
affected.
[77]
Further, the negative impact of a double
rejection on dubious grounds on a loyal and dedicated servant of the
SAPS, such as Barnard,
cannot, as identified by Commissioner
Rasegatla, be overlooked. On this aspect we are dealing with the
impact on both the aggrieved
individual and on the SAPS. If we are to
build a cohesive society with cohesive components within the state
structure, we have
to be ‘situation sensitive’.
[78]
Whilst it is true that in terms of the
National Instruction the National Commissioner is not obliged to fill
a vacancy, the most
obvious instance being where there is no suitable
person capable of fulfilling the requirements of the position, it
does not follow
that where the only suitable person is from a
non-designated group in relation to representivity, that person
should not be appointed.
The foreword to the EEP makes that clear.
This is particularly so where there is no rational or proffered
explanation, or none
proffered at all.
[79]
No doubt many South Africans will agree
that those previously advantaged might in appropriate circumstances
have to forego employment
opportunities in favour of employment
equity. In the present case, having regard to all the circumstances
and bearing in mind the
onus that rests on the SAPS, and for all the
reasons set out earlier, it cannot in my view be concluded that it
has been established
by the SAPS that the discrimination complained
of was fair. In the result the decision by the LAC, for which there
is no factual
foundation given the dearth of evidence to which I have
alluded, cannot stand.
[80]
As stated earlier, the facts in this
case determine the outcome. In striving to achieve an egalitarian
society and in addressing
employment equity whilst maintaining
fairness as a standard and meeting the country’s needs there
can be no victors nor should
there be persons considered to be
vanquished. Dealing with race classifications, as is necessary under
the EEA, feels almost like
a throw back to the grand apartheid
design. If we are to achieve success as a nation, each of us has to
bear in mind that wherever
we are located, particularly those of us
who have crossed over from the previous oppressive era into our
present democratic order,
it will take a continuous and
earnest
commitment to forging a future that is colour blind. This necessarily
includes serious and sustained efforts to overcome
the prejudices
that inevitably attach to us because of our programming, relative to
the segregated societies from which we
emerged,
in order to build a cohesive and potentially glorious rainbow nation.
For now, ironically, in order to redress past imbalances
with
affirmative action measures, race has to be taken into account. We
should do so fairly and without losing focus and reminding
ourselves
that the ultimate objective is to ensure a fully inclusive society -
one compliant with all facets of our constitutional
project.
[81]
It was agreed that in the event of
Barnard being successful, compensation would necessarily be the
difference between what she would
have earned as a Superintendent and
what she continued to earn as a captain, but limited to a two year
period. That is the effect
of the order by the Labour Court. Although
counsel on behalf of the SAPS suggested that it was the upper limit
and that it was
perhaps too generous, he could not, in principle,
object to such an order. The following order is made:
1.
The appeal is upheld with costs
including the costs of two counsel.
The
order of the Labour Appeal Court is set aside and substituted as
follows:
‘
The
appeal is dismissed with costs.’
MS
NAVSA
ACTING
DEPUTY PRESIDENT
APPEARANCES:
FOR
APPELLANT: Adv. MSM Brassey S.C. (with him M.J. Engelbrecht)
Instructed
by:
Serfontein
Viljoen & Swart, Pretoria
Vermaak
& Dennis, Bloemfontein
FOR
RESPONDENT: Adv. N Cassim S.C (with him T Ngcukaitobi)
Instructed
by
The
State Attorney, Johannesburg
The
State Attorney, Bloemfontein
FOR
AMICUS: Adv. JJ Malan
Instructed
by
Kriek
Wassenaar & Venter Inc., Pretoria
Rosendorff
Reitz Barry, Bloemfontein
[1]
Section 25 of the SAPS Act provides:
‘
(1)
The National Commissioner may issue national orders and instructions
regarding all matters which-
(a)
fall within his or her responsibility in terms of the Constitution
or this Act;
(b)
are necessary or expedient to ensure the maintenance of an
impartial, accountable, transparent and efficient police service;
or
(c)
are necessary or expedient to provide for the establishment and
maintenance of uniform standards of policing at all levels
required
by law.
(2)
National orders and instructions issued under subsection (1) shall
be known and issued as National
Orders
and Instructions and shall be applicable to all members.
(3)
The National Commissioner may issue different National Orders and
Instructions in respect of different
categories
of members.’
[2]
Designated employer means:
‘
(a)
a person who employs 50 or more employees;
(b)
a person who employs fewer than 50 employees but has a total annual
turnover that is equal to or above the applicable annual
turnover of
a small business in terms of the Schedule 4 of this Act;
(c)
a municipality, as referred to in Chapter 7 of the Constitution;
(d)
an organ of state as defined in section 239 of the Constitution, but
excluding local spheres of government, the National Defence
Force,
the National Intelligence Agency and the South African Secret
Service; and
(e)an
employer bound by collective agreement in terms of section 23 or 31
of the Labour Relations Act, which appoints it as a
designated
employer in terms of this Act, to the extent provided for in the
agreement.’
[3]
See para 14 of the Employment Equity Plan. It appears that the
targets were not met.
[4]
Harksen v Lane NO
[1997] ZACC 12
;
1998 (1) SA 300
(CC) paras 43-46. Section 6 of the
EEA mirrors the prohibition against discrimination on listed grounds
set out in s 9(3) of
the Constitution and adds HIV status as an
additional ground. Section 9(5) of the Constitution provides:
‘
(5)
Discrimination on one or more of the grounds listed in subsection
(3) is unfair unless it is established that the discrimination
is
fair.’
[5]
See
Minister
of Finance & another v Van Heerden
[2004] ZACC 3
;
2004 (6) SA 121
(CC) para 37.
[6]
Paragraph 27.