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[2008] ZASCA 99
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Gordon v Department of Health: Kwazulu-Natal (337/07) [2008] ZASCA 99; 2008 (6) SA 522 (SCA); [2009] 1 All SA 39 (SCA) ; 2009 (1) BCLR 44 (SCA); [2008] 11 BLLR 1023 (SCA); (2008) 29 ILJ 2535 (SCA) (17 September 2008)
Links to summary
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 337/07
In the
matter between:
MARTIN
GORDON
APPELLANT
v
DEPARTMENT
OF HEALTH: KWAZULU-NATAL RESPONDENT
Neutral citation:
Gordon v Department of Health
(337/2007)
[2008] ZASCA 99
(17 September 2008).
Coram: Scott,
Cloete, Mlambo, Maya JJA et Leach AJA
Heard: 16
May 2008
Delivered: 17
September 2008
Summary:
Practice – Non Joinder – direct and substantial
interest – meaning of – relief sought relevant
to enquiry
– decision of Labour Appeal Court reversed.
Affirmative
Action – Meaning of ‘measures designed to . . .’ in
s 8(3)(a) of Interim Constitution – Rational
relationship of
measures to objectives examined – ad hoc conduct not a measure
as contemplated in s 8(3)(a) – such
conduct inherently
arbitrary and amounting to unfair labour practice within meaning of
Item 2(1)(a) of Schedule 7 of
Labour Relations Act 66 of 1995
.
______________________________________________________________
ORDER
______________________________________________________________
On
appeal from:
The
Labour Appeal Court, (Zondo JP, Jappie
and Basson AJJA sitting on appeal from the Labour Court).
1. The appeal succeeds with costs including the costs of two counsel
and the order of the Labour Appeal Court is set aside.
2. In its place the following order is substituted:
‘The appeal succeeds with costs. The order of the Labour Court
is set aside and the following order is substituted:
(a) It is declared that the appointment of Mr Mkongwa to the post of
Deputy Director Administration: Greys Hospital instead of
the
applicant constituted an unfair labour practice as envisaged by Item
2(1)(a) of Schedule 7 of the
Labour Relations Act 1995
, in that it
discriminated unfairly against the applicant.
(b) The respondent is ordered to pay the applicant the difference
between what he would have earned had he been appointed to the
said
post on the effective date 1 June 1996 and what he actually earned
for the period 1 June 1996 to the date of his retirement
on
28 February 2003, together with interest at the prescribed legal
rate calculated from the date on which each monthly salary
payment
became due until date of payment.
(c) In the event the parties are unable to agree the amount due to
the applicant they are granted leave to approach this court
on the
same papers, duly supplemented in so far as necessary, for an order
determining the amount due.
(d) The respondent is ordered to pay the applicant’s costs.’
______________________________________________________________
JUDGMENT
______________________________________________________________
MLAMBO
JA (SCOTT; CLOETE; MAYA JJA; LEACH AJA CONCURRING)
[1] This
is an appeal, with leave of this court, against the judgment of the
Labour Appeal Court (Zondo JP, Jappie and Basson AJJA)
dismissing an
appeal to that court against the judgment of the Labour Court (Pillay
J) which had dismissed the appellant’s
claim. The judgment of
the Labour Court has been reported, see
Gordon v Department of
Health, KwaZulu-Natal
(2004) 25 ILJ 1431 (LC).
[2] The
respondent, on 11 April 1996, advertised the post of Deputy Director:
Administration: Greys Hospital: Pietermaritzburg.
The appellant, a
white male and Mr Z Mkongwa, a black male, both employees of the
respondent, were amongst the applicants. The
appellant had started
working for the respondent in February 1967 as an assistant
administration clerk and had progressed to the
positions of assistant
senior administration clerk in 1972, administration officer in 1978,
senior administration officer in 1985
and, in 1992, was promoted to
the position of assistant director – Midlands Hospital Complex
comprising Fort Napier hospital,
Townhill and Umgeni’s C and R
Centres. He occupied this position when he applied for the advertised
position. On the other
hand Mr Mkongwa had started his career with
the respondent (at Edendale Hospital) in June 1974 as an assistant
administrator and
had progressed to the position of administration
officer in June 1989. He was in that position when he applied for the
advertised
position having obtained an Honours degree in
Administration.
[3] The
selection panel decided, after interviewing all candidates, that the
appellant was the most suitable for the post as he
was already
administering three hospitals at the time. The panel also found that
he had exhibited strong leadership, planning and
control competencies
which they did not find in the other candidates including Mr Mkongwa.
The panel
recommended that the appellant be
promoted to the post which recommendation was endorsed by Professor
Greene-Thompson, the head
of the Department of Health in the
province. The recommendation was then conveyed to the Provincial
Public Service Commission by
the respondent. It is not in dispute
that, in its letter to the Commission, the respondent recorded that
the appellant was found
suitable with due regard to five agreed
criteria. The Commission did not accept the respondent’s
recommendation for the appellant’s
appointment and directed the
respondent to appoint Mr Mkongwa instead. It stated that this
directive was based on Mr Mkongwa’s
‘academic
qualifications, experience and the constitutional imperative to
promote representivity in the public service’.
The respondent
then appointed Mr Mkongwa to the post.
[4] The
appellant, aggrieved by his non-appointment, instituted proceedings
in the Labour Court against the respondent claiming
that he had been
discriminated against unfairly on the arbitrary grounds of his race
and colour and that this was an unfair labour
practice. He claimed
protective promotion, by way of relief, with effect from 1 June 1996,
the date on which he contended he should
have been appointed.
Protective promotion is described in paragraph 9 (1)(c), part
B.VI/III of the Public Service Commission Staff
Code as follows:
‘Protective Promotions are effected on the recommendation of a
Commission to protect the position of officers
and employees –
. . . who are found to have been prejudiced in the filling of a
promotion post after such a post had been
filled.’ This in
essence amounts to providing all the benefits of the promotion post
to one employee without actually appointing
him thereto with the
consequence that the appointment of another employee to that post
remains intact.
[5] The
Labour Court held that appointing the appellant to the post would not
have given effect to the ‘constitutional imperative’
of
promoting equality and transforming the public service, and that for
that reason he could not be regarded as the most suitable
candidate.
The Labour Court concluded that the failure to appoint the appellant
did not amount to unfair discrimination and consequently
dismissed
his claim. The appellant’s claim and the basis upon which it
was dealt with by the Labour Court were not considered
by the Labour
Appeal Court (LAC) as that court, having invited the parties to
address it on the non-joinder of Mr Mkongwa
in the proceedings,
reasoned that in the event of the appellant’s contention being
upheld, ie that he was more suitable for
appointment than Mr Mkongwa,
this would have amounted to Mr Mkongwa’s appointment being
‘a wrong appointment’.
This, concluded the LAC, meant
that Mr Mkongwa had an interest in the proceedings and that the
failure to join him deprived him
of the opportunity to also have his
say. This led the LAC to conclude that the appellant’s failure
to join Mr Mkongwa was
fatal and it dismissed the appeal.
[6] The
LAC reached its conclusion by relying, amongst others, on its earlier
decision in
Public Servants Association v Department of Justice
(2004) 25 ILJ 692 (LAC) in which it had rejected an appeal on a
similar basis. In that matter the LAC upheld a decision of the
Labour
Court which had on review set aside an arbitration award of the
Commission for Conciliation Mediation Service of South Africa
(CCMA).
The CCMA had ruled that the Department of Justice had committed an
unfair labour practice by not appointing the appellants
and instead
appointing employees who were alleged to have been far less
experienced. The Department of Justice had justified its
appointment
of the successful appointees on the basis that it was advancing
representivity in the department. That is the stance
of the
respondent in this case.
[7] In
Public Servants Association v Minister of Justice
as here, the
appellants had not joined the successful appointees. There the LAC
reasoned that the appellants’ claim that
they, and not the
successful appointees, were suitable for appointment created a
dilemma for the Department of Justice regarding
the correctness of
its decision not to appoint the appellants. The LAC referred to
Amalgamated Engineering Union v Minister of Labour
1949 (3) SA
637
(A). In that matter a trade union had instituted proceedings
seeking the reversal of a decision by the Minister of Labour
terminating
the appointment of an arbitrator in a dispute between the
union and its members on the one hand and their employer on the
other.
The union had not joined the employer in the litigation. Fagan
AJA restated the principle that a third party must be joined in
proceedings if he is shown to have a direct and substantial interest
in the subject matter of the litigation. He found in that matter
that
the employer had a direct and substantial interest in the litigation
as it would have had to comply with the arbitrator’s
award in
the event of the arbitrator ruling in favour of the union and its
members. Fagan AJA also rejected submissions that the
employer,
though not cited, was aware of the proceedings as it had been given
informal notice thereof. The LAC found that the facts
in
the
Amalgamated
Engineering Union
case were analogous. The LAC reasoned
that, notionally, this
gave rise to a situation where the successful appointees, if removed
from their posts as per the award of
the CCMA, could themselves
challenge their removal from their posts and, in the event of them
being successful, this could potentially
place the Department in an
untenable position. This situation, concluded the LAC, demonstrated
that the successful appointees had
a direct and substantial interest
in the matter and that failure to join them was fatal to the
appellants’ case.
[8] The
LAC then went on to consider the question whether the successful
appointees should ‘at least’ have been afforded
an
opportunity to be heard even if there may have been no obligation to
join them. In this regard the LAC referred to
Du Preez and
Another v Truth and Reconciliation Commission
[1997] ZASCA 2
;
1997 (3) SA 204
(A)
1
and to
Traub and Others v Administrator, Transvaal
1989 (1) SA
397
(W).
2
In the
Traub
matter Goldstone J had set aside a decision of
the Director of Hospital Services in the Transvaal turning down
applications for
appointment by certain doctors without giving them a
hearing, a decision confirmed on appeal albeit for different
reasons.
3
The
Du Preez
matter dealt with the rights and interests of
certain persons who were not given notice of proceedings in which
allegations about
their alleged complicity in certain criminal
actions were to be aired. The LAC found that by analogy, as the
successful appointees
had already been appointed to their posts when
the arbitration commenced in the CCMA, a finding by the CCMA that
they were not
suitable for appointment to those positions ‘could
no doubt detrimentally affect their existing rights and interests’
and that ‘the duty to act fairly obliged the (CCMA)
commissioner not to make such a finding without complying with the
audi alteram partem
rule or without having them joined in the
proceedings first’. The LAC further rejected a submission that
it was not necessary
to join the successful appointees as the relief
sought was not directed at the setting aside of their appointments.
In this regard
the LAC found that joining the successful appointees
was not solely dependent upon the question of relief. The LAC stated
at 705A-B:
‘
Even
if no relief were sought against the appointees, they should have
been joined or at least should have been given an opportunity
to be
heard before the commissioner could make the finding that “as
an objective fact” they are not suitable for the
posts to which
they were appointed. This is so because such a finding would, with or
without any relief being sought against the
appointees, affect their
rights and interests adversely.’
For these
reasons the LAC dismissed the appeal.
[9] The
Du
Preez
and
Traub
decisions had nothing to do with
non-joinder, a fact acknowledged by the LAC. They were concerned
primarily with the
audi alteram
principle in circumstances
where a public body had failed to afford certain individuals a
hearing in matters in which their interests
and rights were at stake.
The issue in our matter, as it is in any
non-joinder dispute, is whether the party sought to be joined has a
direct and substantial
interest in the matter. The test is whether a
party that is alleged to be a necessary party, has a legal interest
in the subject
matter, which may be affected prejudicially by the
judgment of the court in the proceedings concerned.
4
In the
Amalgamated Engineering Union
case (supra) it was found that ‘the question of joinder should
. . . not depend on the nature of the subject matter
. . .
but . . . on the manner in which, and the extent to which, the
court’s order may affect the interests of third parties’.
5
The court formulated the approach as, first, to consider whether the
third party would have
locus standi
to claim relief concerning the same subject-matter, and then to
examine whether a situation could arise in which, because the third
party had not been joined, any order the court might make would not
be
res judicata
against him, entitling him to approach the courts again concerning
the same subject-matter and possibly obtain an order irreconcilable
with the order made in the first instance.
6
This has been found to mean that if the order or ‘judgment
sought cannot be sustained and carried into effect without
necessarily
prejudicing the interests’ of a party or parties
not joined in the proceedings, then that party or parties have a
legal interest
in the matter and must be joined.
7
[1
0] All
the cases I have referred to also illustrate the point that the order
or judgment of the court is relevant to the question
whether a party
has a direct and substantial interest in the subject matter of any
proceedings. It is so that in the course of
its reasoning a court
makes findings and expresses views which do not form part of its
judgment or order. An example in point in
the employment arena
concerns a potential finding by a court that a successful appointee
was not suitable for appointment. The
‘unsuitable’
appointee has no legal interest in the matter if the order will be
directed at the employer (the author
of the unsuitable appointment)
to compensate the ‘suitable’ but unsuccessful applicant.
Of course the successful but
‘unsuitable’ appointee will
always have an interest in the order to confirm his/her suitability
for the job but this
is not a direct and substantial interest
necessary to found a basis for him or her to be joined in the
proceedings. In a situation
where a number of applicants compete for
a position, they provide information to the prospective employer to
influence the decision
in their favour. That is as far as they can
take it. Once the employer selects from amongst them it is up to the
employer to defend
its decision if challenged. This is because the
employer, as the directing and controlling mind of the enterprise
which is vested
with the managerial prerogative to manage it, has a
legal interest in the confirmation of its decision as it faces a
potential
order against it. The successful appointee can only have a
legal interest in the proceedings where the decision to appoint him
is sought to be set aside which can lead to his removal from the
post. He becomes a necessary party to the proceedings because the
order cannot be carried into effect without profoundly and
substantially affecting his/her interests.
[11] As
already pointed out, the relief sought in this matter and in
Public
Servants Association v Minister of Justice
(supra) was not
directed at the setting aside of the Department’s decisions and
the reversal of the appointment. The LAC
was thus incorrect in
finding that the facts in the
Amalgamated Engineering Union
case
were analogous to those in the
Public Servant’s
case. In
the
Amalgamated Engineering Union
case the employer who had
not been joined would have been prejudiced, as found by Fagan AJA,
because it had a direct and substantial
interest in the appointment
of an arbitrator regarding a dispute it had with its employees and
the union. In the
Public Servants
case there was no potential
prejudice to the successful appointees as no relief was directed at
them. The LAC further erred in
finding that the relief sought was
irrelevant in considering whether a party had a direct and
substantial interest in a matter.
The cases referred to by the LAC do
not support this conclusion and as pointed out above they dealt with
a completely separate
and unrelated principle. In the circumstances
the LAC’s decision that Mr Mkongwa had a direct and substantial
interest in
the matter and that the failure to join him was fatal to
the appellant’s case must be reversed.
[12] In
the circumstances it becomes necessary to consider the appellant’s
claim, which was not dealt with by the LAC, that
he was the victim of
unfair racial discrimination when the respondent appointed Mr Mkongwa
and not him. This claim is based
on Item 2(1)(a) of Schedule 7
of the Labour Relations Act 66 of 1995 (LRA), which provides:
‘
For
the purpose of this item, an unfair labour practice means any unfair
act or omission that arises between an employer and an
employee,
involving the unfair discrimination, either directly or indirectly,
against an employee on any arbitrary ground, including,
but not
limited to race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience,
belief, political
opinion, culture, language, marital status or family responsibility.’
The
appellant contends that in the absence of a rational policy, plan or
programme which justified his non appointment the respondent
acted in
an inherently arbitrary manner, in failing to appoint him based on
his race and colour. This, he says, violated Item 2(1)(a)
and
therefore was unfair, even if this occurred within the constitutional
imperative to advance persons, groups and/or categories
of people
previously disadvantaged by unfair discrimination.
[13] On
the other hand, the respondent’s case is that objectively
viewed the appointment of Mr Mkongwa is immune from judicial
scrutiny
as it was a measure in itself designed to achieve the constitutional
imperative of promoting equality and transforming
the public service.
It was submitted that Mr Mkongwa was a black person who was obviously
disadvantaged by past unfair discrimination
and his preference over
the appellant was a measure, in itself without more, designed to
achieve his advancement to enable his
full and equal enjoyment of all
rights and freedoms in the Constitution. This, it was submitted, was
the objective of his appointment,
which is the important element in
the process and not whether there was an overarching policy, plan or
programme in terms of which
the appointment was made. It was further
submitted that in any event it was not obligatory to have a
programme, plan or policy
in place to advance this constitutional
imperative.
[14] The
question therefore is whether the appointment of Mr Mkongwa, a black
candidate instead of the appellant, a white candidate,
found more
suitable by the selection panel, is immunised from judicial scrutiny
by the respondent’s
ipse dixit
, without more, that it
was an affirmative action appointment in furtherance of the
constitutional imperative of promoting equality.
[15] Item
2(1)(a) must be read with Item 2(2)(b) in the same schedule which
provides:
‘
For
the purposes of sub-Item (1)(a)–
(b) an
employer is not prevented from adopting or implementing employment
policies and practices that are designed to achieve the
adequate
protection and advancement of persons or groups or categories of
persons or groups or categories of persons disadvantaged
by unfair
discrimination, in order to enable their full and equal enjoyment of
all rights and freedoms.’
These
provisions are clearly based on s 8 of the Interim Constitution
8
which was applicable at the time. Section 8 provided:
‘
Section
8.
Equality
1.
Every person shall have the right to equality before the law and to
equal protection of the law.
2.
No person shall be unfairly discriminated against, directly or
indirectly, and, without derogating from the generality of this
provision, on one or more of the following grounds in particular:
race, gender, sex, ethnic or social origin, colour, sexual
orientation,
age, disability, religion, conscience, belief, culture
or language.
3.
(a) This section shall not preclude measures designed to achieve
the adequate protection and advancement of persons or groups
or
categories of persons disadvantaged by unfair discrimination, in
order to enable their full and equal enjoyment of all rights
and
freedoms.’
9
[16] The
first issue requiring attention is the proper approach to s 8 and
Items 2(1)(a) and 2(2)(b). It can hardly be contested
that the
appellant was discriminated against on the basis of his colour and
race. The issue is whether this was unfair and therefore
not
countenanced by s 8.
10
The thrust of s 8 was to ‘guarantee both equality before the
law and equal protection of the law, and prohibits unfair
discrimination
both generally and on the particular grounds of race,
gender, sex, ethnic or social origin, colour, sexual orientation,
age, disability,
religion, conscience, belief, culture or language’.
11
The section further makes provision for measures designed for the
advancement of persons and groups disadvantaged by past racial
discrimination. This, in essence permits unequal treatment where the
objective is to promote equality.
12
This has been found to contemplate the substantive form of equality
as opposed to the formal type. See
Minister of Finance v Van
Heerden
[2004] ZACC 3
;
2004 (6) SA 121
(CC) para 26-27 where Moseneke J states:
‘
[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. Of this Ngcobo J, concurring with a
unanimous Court, in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
observed that:
“
In
this fundamental way, our Constitution differs from other
constitutions which assume that all are equal and in so doing simply
entrench existing inequalities. Our Constitution recognises that
decades of systematic racial discrimination entrenched by the
apartheid legal order cannot be eliminated without positive action
being taken to achieve that result. We are required to do more
than
that. The effects of discrimination may continue indefinitely unless
there is a commitment to end it.”
[27] This
substantive notion of equality recognises that besides uneven race,
class and gender attributes of our society, there
are other levels
and forms of social differentiation and systematic under-privilege,
which still persist. The Constitution enjoins
us to dismantle them
and to prevent the creation of new patterns of disadvantage . . ..’
13
[17] Affirmative
action is unquestionably the most embraced means to promote equality
and it entails in essence the upliftment of
those who were
disadvantaged by unfair discrimination. Mahomed J commented in
Shabalala v Attorney-General, Transvaal
[1995] ZACC 12
;
1996 (1) SA 725
(CC) para
16 that:
‘
Viewed
from this angle therefore it is clear that the Constitution aims to
redress historical inequities and imbalances. It requires
as a
constitutional imperative that the public service be broadly
representative of the South African community. The attainment
of this
constitutional objective, in particular in the public service would
be impossible without a programme of affirmative action.’
[18] The
question that arises in our case is whether the appointment of
Mr Mkongwa was a measure within the contemplation of
Item
2(2)(b) read in the context of s 8(3)(a). The respondent submits that
it was such a measure even though it was ad hoc. The
resolution of
this question involves an investigation whether the appointment in
itself was designed to achieve the constitutional
imperative of
promoting equality.
Section 8(3)(a)
contemplates ‘measures’ whilst Item 2(2)(b) contemplates
‘policies’ and ‘practices’
(as the means) to
advance the constitutional imperative and both provide that these
must be ‘designed to achieve . . . adequate
protection and
advancement . . ..’ It has been found that measures
that are found to be inherently arbitrary and/or
irrational cannot be
said to have been designed to achieve the objective of the
constitutional imperative of equality.
The decision in
Stoman
v Minister of Safety and Security
2002 (3) SA 468
(T) illustrates
this at p 480A-D where the court said:
‘
I
am respectfully in agreement with the learned Judge in the
Public
Servants Association
case
that a policy or practice which can be regarded as haphazard, random
and overhasty, could hardly be described as measures designed
to
achieve something. There must indeed be a rational connection between
the measures and the aim they are designed to achieve.
This view has
also been expressed by academic writers, such as Mureinik in “A
Bridge to Where? Introducing the Interim Bill
of Rights”
(1994)
10
SAJHR
31.
I accept, at least for present purposes, that affirmative action
measures are indeed reviewable, as found by Swart J in the
Public Servants
Association
case,
inter
alia
based on the
opinion expressed by
Mureinik
,
and argued on behalf of the applicant in this case. In order to
honour constitutional ideals and values, and to strive to truly
move
towards the achievement of substantive equality, proper plans and
programs must be designed and put into place. Mere random
and
haphazard discrimination would achieve very little, if anything, and
might be counter-productive.’
See also
Minister of Finance v Van Heerden
(supra) where Moseneke J at
139 said:
‘
[41] The
second question is whether the measure is “designed to protect
or advance” those disadvantaged by unfair discrimination.
In
essence, the remedial measures are directed at an envisaged future
outcome. The future is hard to predict. However, they must
be
reasonably capable of attaining the desired outcome. If the remedial
measures are arbitrary, capricious or display naked preference
they
could hardly be said to be designed to achieve the constitutionally
authorised end. Moreover, if it is clear that they are
not reasonably
likely to achieve the end of advancing or benefiting the interests of
those who have been disadvantaged by unfair
discrimination, they
would not constitute measures contemplated by s 9(2).’
[19] Our
jurisprudence shows that our courts have focused on the question
whether policies, plans or programmes put up as measures
designed to
promote equality were indeed capable of achieving that objective. In
Motala v University of Natal
1995 (3) BCLR 374
(D) what was
sought to be impugned was a plan by the University to limit the
number of Indian students in preference to black students,
which
recognised the several disadvantages suffered by black students in
particular. Hurt J had this to say about that policy:
‘
On
the papers before me I was satisfied that the policy described by the
deponents for the respondent was a “measure designed
to achieve
the adequate protection and advancement of . . . a group . . . of
persons [black students] disadvantaged by unfair discrimination.’
At p 383B-C.
[20] In
Stoman v Minister of Safety and Security
(supra) a white
police officer claimed that the failure to appoint him to an
advertised post and the appointment instead of a black
officer in
terms of an Equity Plan of the South African Police Service amounted
to unfair racial discrimination as he was the most
suitable for the
position. The Equity Plan was found by Van der Westhuizen J to be
bona fide and designed to contribute to the
promotion of equality and
the protection and advancement of persons previously disadvantaged by
unfair discrimination.
14
In
Minister of Finance v Van Heerden
(supra) at issue were
certain rules of the Political Office Bearers Pension Fund which
provided for differentiated employer contributions
in respect of
members of Parliament. The objective of the rules was to ‘ameliorate
past disadvantage related to the pension
benefits need of new
political office bearers’. Having analysed the rules of the
fund Moseneke J stated at p 142:
‘
[52]
I am satisfied that the evidence demonstrates a clear connection
between the membership differentiation the scheme makes and
the
relative need of each class for increased pension benefits. The
scheme was designed to distribute pension benefits on an equitable
basis with the purpose of diminishing the inequality between
privileged and disadvantaged parliamentarians. In that sense the
scheme promotes the achievement of equality. It reflects a clear and
rational consideration of the need of the members of the Fund
and
serves the purpose of advancing persons disadvantaged by unfair
discrimination.’
[21] In
Public Servants Association of South Africa v Minister of Justice
1997 (3) SA 925
(T) (referred to in
Stoman
) the Department of
Justice had earmarked some posts in terms of an interim arrangement
to implement affirmative action before the
completion of a
rationalisation process in the department and in the absence of a
finalised affirmative action plan or programme.
The only persons who
were invited to apply for the earmarked posts and to the interviews
were women. No explanation was however
advanced for the basis upon
which the posts were thus earmarked. The earmarking was criticized by
the court as haphazard, random
and over-hasty. For this reason the
court was of the view that the earmarking of the posts amounted to an
‘untrammelled discretion
to earmark posts for designated groups
without any overall plan or policy’. In this regard the court
reasoned that s 8(3)(a)
required affirmative action measures to be
designed to achieve the adequate protection and advancement of
disadvantaged groups
which was different to haphazard and random
action.
15
[22] It
cannot be disputed that in the cases referred to above what was at
issue were plans, policies and/or programmes envisaging
a pattern of
conduct whose objective was to promote equality. Those measures that
survived judicial scrutiny are those found to
have been rationally
connected to their objective. See Albertyn and Kentridge (supra) at p
173 that:
‘
The
better view is that the use of the word “designed” as
opposed to “aimed” imports the requirement of
a rational
relationship between means and ends. In other words, it is not
sufficient that the
purpose
of the measures in question is to redress past discrimination –
the means selected to effect that purpose must be reasonably
capable
of doing so. The latter reading is preferable because it is more
likely to ensure that affirmative action programmes are
carefully
constructed in ways which are best able to accomplish what they set
out to achieve.’
It
is apparent from the cited cases that the plans and/or policies at
issue were subjected to scrutiny to determine if they were
rationally
connected with the constitutional imperative of promoting and/or
achieving equality and that
a
d hoc and
random action was found to be incapable of meeting the objective.
From this it can be deduced that properly formulated
programmes go a
long way to satisfying the requirement of rationality. This is so
since a properly crafted programme or policy
provides a basis upon
which it can be measured as to whether it meets the constitutional
objective. In
Public Servants
Association of South Africa v Department of Justice
there was no policy or plan in place but an ad hoc arrangement which
was found to be random and haphazard and therefore not designed
to
achieve the required purpose. See also
Eskom
v Hiemstra NO
(1999) 20 ILJ 2362
(LC).
This, in my view, clearly shows that the term ‘measures’
as set out in s 8(3)(a) as well as the term ‘practices’
and ‘policies’ in Items 2(2)(b) of Schedule 7 of the LRA
mean something much more than mere ad hoc or random action
as we have
in this case.
[23] The
injunction that the public service must be broadly representative is
an important one. It enjoins those in charge to strive
towards
representivity. This in my view calls for attention to be focused on
the respects in which the service is not representative
and what
measures should be implemented to achieve the required
representivity. This suggests that a properly considered policy
or
plan to address the situation as opposed to ad hoc means is the way
to go to achieve representivity. It must therefore be so
that ad hoc
and random action is impermissible. Compare
Independent
Municipal and Allied Workers Union v Greater Louis Trichardt
Transitional Local Council
(2000) 21 ILJ 1119
(LC) at 1125 para 19 where it was said:
‘
There
appears to be no doubt therefore that for affirmative action to
survive judicial scrutiny the following is relevant:
19.1 there
must be a policy or programme through which affirmative action is to
be effected;
19.2 the
policy or programme must be designed to achieve the adequate
advancement or protection of certain categories of persons
or groups
disadvantaged by unfair discrimination.’
[24] In
casu the appointment of Mr Mkongwa is sought to be justified on the
basis that it was a measure in itself of advancing Mr
Mkongwa who was
disadvantaged by past discrimination. Mr Mkongwa’s race
was therefore the only basis on which his appointment
was sought to
be linked to the constitutional imperative by the Commission even
though the selection panel did not support it.
From
the evidence it is clear that the respondent did not have a policy or
overarching plan of affirmative action. The Secretary
of the
Commission, Dr Ndlovu, who testified, was unable to provide a
coherent basis for rejecting the selection panel’s
recommendation. His view was simply that this was a case where
affirmative action had to be implemented. He could not provide any
evidence of guidelines by his Commission to the respondent in terms
of which representivity was to be addressed in the recruitment
process. His evidence demonstrates that the Commission itself had not
applied its mind to the implementation of affirmative action:
they
simply held a view in this case that a black candidate should be
appointed. He could provide no evidence of how that appointment
would
have made the respondent more representative, nor was he able to
provide a factual basis of the demographics which prompted
the
Commission to impose its view on the respondent.
[25] It
has to be pointed out, as appears from the cases cited, that the
policies, plans and/or programmes involved there were crafted
in
consideration of the context, such as identifying relevant
demographics and the gaps in representivity that had to be addressed
through affirmative action. This was not the case here nor was the
application of affirmative action one of the criteria applicable
in
the selection of candidates. These are issues that would have been
catered for in a specially formulated plan, policy or programme
which
would have provided the basis of the appointment. Clearly, the
appointment was an ad hoc and arbitrary act. It can never
in itself
amount to a measure within the contemplation of s 8(3)(a) or s 9(2)
which clearly require something much more than an
ad hoc act. The
appointment was not a measure in itself and was clearly inherently
arbitrary and therefore unfair as contemplated
in Item 2(1)(a).
[26] Therefore
the submission that the appointment of Mr Mkongwa was in itself a
measure within the contemplation of s 8(3)(a) is
misconceived.
Furthermore, the submission that the appointment was a ‘practice’
within the meaning of Item 2(2)(b)
is also misplaced. Even if one
were to find that the term ‘measures’ in s 8 also
contemplates a practice, a single
act or appointment is not and can
never amount to a practice. The terms ‘practice’ and
‘measures’ presuppose
more than one act. The language of
the Constitution must be respected. One cannot give a term in the
Constitution a meaning inconsistent
with it. In
S v Zuma
[1995] ZACC 1
;
1995
(2) SA 642
(CC) para 17 the court said:
‘
I
am, however, sure that Froneman J, in his reference to the
fundamental “mischief” to be remedied, did not intend to
say that all the principles of law which have hitherto governed our
Courts are to be ignored. Those principles obviously contain
much of
lasting value. Nor, I am equally sure, did the learned Judge intend
to suggest that we should neglect the language of the
Constitution.
While we must always be conscious of the values underlying the
Constitution, it is nonetheless our task to interpret
a written
instrument. I am well aware of the fallacy of supposing that general
language must have a single “objective”
meaning. Nor is
it easy to avoid the influence of one's personal intellectual and
moral preconceptions. But it cannot be too strongly
stressed that the
Constitution does not mean whatever we might wish it to mean.’
[27] In
the circumstances of this case and in view of the absence of a plan
or policy in terms of which affirmative action was to
be applied, the
respondent was obliged to comply with the legislative framework
applicable at the time in selecting candidates.
There are a number of
provisions in the Public Service Act and the Interim Constitution
which are relevant regarding appointments
in the public service.
Section 11(1)(b) of the PSA provides:
’
Only
the qualifications, level of training, merit, efficiency and
suitability of the persons who qualify for the appointment, promotion
or transfer in question, and such conditions as may be determined or
prescribed or as may be directed or recommended by the Commission
for
the making of the appointment or the filling of the post, shall be
taken into account.’
The
high-water mark of this provision is that no person who qualifies for
appointment shall be favoured or prejudiced and that suitability
amongst others shall be the criteria to be considered when making
appointments. Section 212(2) of the Interim Constitution provided
inter alia that the public service should ‘promote an efficient
public administration broadly representative of the South
African
community’. In turn s 212(4) of the Interim Constitution
provides:
‘
In
the making of any appointment or the filling of any post in the
public service, the qualifications, level of training, merit,
efficiency and suitability of the persons who qualify for the
appointment, promotion or transfer concerned, and such conditions
as
may be determined or prescribed by or under any law, shall be taken
into account.’
[28] There
is clear emphasis in these provisions that suitable candidates cannot
be denied appointment if they comply with stipulated
requirements,
even though representivity is the objective. Therefore, in the quest
to attain representivity, efficiency and fairness
were not to be
compromised. To justify the failure to appoint a candidate who
complied with stipulated requirements it had to be
shown that that
action was not unfair. The evidence at our disposal is clear that the
respondent did not have an affirmative action
plan or policy in terms
of which it appointed Mr Mkongwa. The evidence is also clear
that the selection panel found the appellant
to be the most suitable
candidate and recommended that he be appointed. It is also common
cause that the appellant complied with
all the requirements for the
post in terms of s 11(1)(b) of the PSA. In the light of all
these facts it was clearly unfair
not to appoint him. The Labour
Court was therefore incorrect to conclude that it was not a
requirement for the respondent to have
had a plan or programme first
before appointing Mr Mkongwa. In the circumstances, the appellant has
succeeded in showing that the
failure to appoint him was inherently
arbitrary and therefore amounted to unfair discrimination which is an
unfair labour practice
as contemplated in Items 2(1)(a).
[29] It
follows that the appeal must be upheld. In the circumstances, the
following order is granted:
1. The appeal succeeds with costs including the costs of two counsel
and the order of the Labour Appeal Court is set aside.
2. In its place the following order is substituted:
‘The appeal succeeds with costs. The order of the Labour Court
is set aside and the following order is substituted:
(a) It is declared that the appointment of Mr Mkongwa to the post of
Deputy Director Administration: Greys Hospital instead of
the
applicant constituted an unfair labour practice as envisaged by Item
2(1)(a) of Schedule 7 of the
Labour Relations Act 1995
, in that it
discriminated unfairly against the applicant.
(b) The respondent is ordered to pay the applicant the difference
between what he would have earned had he been appointed to the
said
post on the effective date 1 June 1996 and what he actually earned
for the period 1 June 1996 to the date of his retirement
on
28 February 2003, together with interest at the prescribed legal
rate calculated from the date on which each monthly salary
payment
became due until date of payment.
(c) In the event the parties are unable to agree the amount due to
the applicant they are granted leave to approach this court
on the
same papers, duly supplemented in so far as necessary, for an order
determining the amount due.
(d) The respondent is ordered to pay the applicant’s costs.’
___________
D MLAMBO
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: M PILLEMER SC;
P
BLOMKAMP
INSTRUCTED BY: LLEWELLYN CAIN ATTORNEY; PIETERMARITZBURG
LOVIUS
BLOCK; BLOEMFONTEIN
FOR RESPONDENT: P J OLSEN SC;
J NXUSANI;
S
SEWPERSAD (Ms)
INSTRUCTED BY: STATE ATTORNEY; PIETERMARITZBURG
STATE ATTORNEY; BLOEMFONTEIN
1
Particularly to the statement at 230I-231A that: ‘
In
my view, the solution to the problems raised by the issues in this
case may be found in the common law, and more particularly
the rules
of the common law which require persons and bodies, statutory and
other, in certain instances to observe the rules
of natural justice
by acting in a fair manner. In recent years our law in this sphere
has undergone a process of evolution and
development, focusing upon
that principle of natural justice encapsulated in the maxim
audi
alteram partem
(which for the sake of
brevity I will call the “
audi
principle'”).’
And at 231F that: ‘The
audi
principle is but one facet,
albeit an important one, of the general requirement of natural
justice that in the circumstances postulated
the public official or
body concerned must act fairly.’
2
Particularly to the statement in 400I-J that: ‘A decision that
a professional person is unsuitable for a post is potentially
of the
utmost importance and will, if it remains, be a permanent blot on
his good name.’
And further at 401C-D that: ‘Where the
suitability of a person is the issue, and an adverse decision has
serious consequences
for that person in relation to his application
and in relation to his career, then I have no doubt that in the
absence of a clear
provision to the contrary in the statute he must
be entitled to be heard before he is made to suffer an adverse
decision.’
3
See
Administrator, Transvaal v Traub
[1989] ZASCA 90
;
1989 (4) SA 731
(A).
4
Bowring NO v Vrededorp Properties
CC
2007 (5) SA 391
(SCA)
para 21.
5
At page 657.
6
See also
Collin v Toffie
1944 AD 456
at 464;
Home
Sites (Pty) Ltd v Senekal
1948 (3) SA
514
(A) at 521A and
Peacock v Marley
1934 AD 1
at 3;
Burger v Rand Water
Board
2007 (1) SA 30
(SCA) para 7.
7
Bekker v Meyring, Bekker’s Executor
(1828–
1849) 2 Menz 436.
8
The Constitution of the Republic of South Africa Act 200 of 1993.
9
Section 8 was replaced by s 9 of the Constitution of the Republic of
South Africa 108 of 1996 which provides:
Section 9 of the Constitution:
‘Equality
(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
This approach is no different to what s 9(5) of the Constitution
envisages as postulated in
Stoman v Minister
of Safety and Security
2002 (3) SA 468
(T) at 476J-477A.
11
Etienne Mureinik:
‘A Bridge to where? Introducing the
Interim Bill of Rights’ South African Journal of Human Rights
(1994) Vol 10 p 31.
12
See Catherine Albertyn and Janet Kentridge: ‘Introducing the
right to equality in the Interim Constitution’ South
African
Journal of Human Rights (1994) Vol 10 p 149: ‘This clause
(s 8(3)(a)) makes it clear that the prohibition
of
discrimination on the grounds listed in s 8(2) does not require the
immediate abandonment of all consciousness of the named
classifications. It acknowledges that the achievement of equality
will require remedial measures which are geared to redressing
both
individual and group disadvantage created by a history of oppression
and apartheid.’ (at 172).
13
See also the statement by Goldstone J in
Republic
of South Africa v Hugo
[1997] ZACC 4
;
1997 (6) BCLR 708
(CC) at 729F-H that: ‘In s 8(3), the interim Constitution
contains an express recognition that there is a need for measures
to
seek to alleviate the disadvantage which is the product of past
discrimination. We need, therefore, to develop a concept of
unfair
discrimination which recognises that although a society which
affords each human being equal treatment on the basis of
equal worth
and freedom is our goal, we cannot achieve that goal by insisting
upon identical treatment in all circumstances before
that goal is
achieved.’
14
The learned judge stated at 483D: ‘My concluding impression is
that there is nothing before me indicating that the relevant
policies and guidelines of the SAPS regarding measures to achieve
equality and representivity do not comply with the constitutional
requirements emanating from s 9(2). These policies and guidelines
seem to have been created bona fide and with the intention
of
achieving the relevant ideals. In view of what is before me, I am of
the opinion that there are measures designed to contribute
to the
promotion of equality in general and specifically to the protection
and advancement of persons or categories of persons
previously
disadvantaged by unfair discrimination.’
15
At 991I-J.