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[2024] ZALCJHB 147
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Landman v Minister of Agriculture, Forestry and Fisheries and Another (J 232/2013) [2024] ZALCJHB 147; [2024] 7 BLLR 746 (LC) (15 March 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: J 232/2013
In
the matter between:
JOHAN
FREDERICK LANDMAN
Applicant
and
MINISTER
OF AGRICULTURE, FORESTRY
First Respondent
AND
FISHERIES
VM
MASHELE
Second Respondent
Delivered:
This judgment was handed down electronically by
circulation to the parties' representatives through email. The date
for hand-down
is deemed to be 15 March 2024.
JUDGMENT
MAHOSI, J
Introduction
[1]
South Africa is a country burdened with its history, yet it envisions
a society where all citizens are treated equally despite their race,
gender, background, and social status. For this to become a
reality,
the law has to be blind to the traits of those seeking justice and
must be applied uniformly and equally across the board.
[2]
The
applicant, Mr Johan Landman (Mr Landman), brought an application in
terms of section 6 of the Employment Equity Act.
[1]
(EEA), alleging that the first respondent (the Minister) unfairly
discriminated against him on race and gender by failing to shortlist
him for the advertised vacancy of Director for Employee Relations
(the position).
[3]
The first respondent, Minister of Agriculture, Forestry and Fisheries
(the Minister), opposed the matter. The parties agreed to proceed by
way of a stated case.
Background
[4]
The Department of Agriculture, Forestry and Fisheries (the
Department)
advertised the position on 20 February 2011. The closing
date was 07 March 2011. The position's requirements included,
inter
alia
, relevant degree and six to ten years experience in a
management position.
[5]
Mr Landman, whom the Department employed as a Deputy Director of
Employee
Relations from February 1997 and who had acted in the
position, applied but was not shortlisted. Instead, the Department
shortlisted
five females and invited them for interviews on 03 August
2011. The selection committee found no shortlisted candidates
suitable
for the position. As a result, the Department followed a
head-hunting route, inviting five candidates for interviews on 01
February
2012. After these interviews, the panel recommended Ms
Mashele for appointment, which commenced on 1 July 2012.
[6]
Aggrieved by the Department’s decision not to shortlist and
appoint
him, Mr Landman lodged a grievance with the Minister.
Dissatisfied with the grievance outcome, Mr Landman referred an
unfair labour
dispute to the General Public Service Sector Bargaining
Council (the bargaining council) for conciliation.
[7]
The bargaining council held the conciliation on 25 June 2012. At the
conciliation,
Mr Landman requested the Department to furnish him with
reasons for not shortlisting him. The Department stated that the
position
was earmarked for employment equity and decided to fill it
with an African female candidate which resulted in the shortlisting
of women only. The Minister further submitted that the decision was
fair as Mr Landman was not the only male who was not shortlisted.
[8]
The bargaining council could not resolve the dispute and
issued the certificate of non-resolution, which prompted Mr Landman
to
launch this application
claiming that the
Minister unfairly discriminated against him based on race and gender
in contravention of section 6 of the EEA
and
section 9(1) to
(3) of the Constitution of the Republic of South Africa, 1996 (the
Constitution)
.
[9]
Mr Landman seeks that the Court orders the Minister to:
8.1
Promote him to the grade equivalent to that of the position with
effect from 1 July 2012
with all the associated benefits;
8.2
Pay him the difference between the monetary value of the remuneration
and benefits that he received
from 1 July 2012 until 15 July 2017,
when he resigned, and what he would have received had he been
appointed to the position.
8.3
Compensate him for R 200 000.00 (Two Hundred Thousand Rands).
8.4
In the alternative, set aside Ms Mashele’s appointment and
re-advertise the position.
[10]
The Minister opposed the application and denied that he unfairly
discriminated against
Mr Landman.
Mr
Landman’s contentions
[11]
Mr Landman contends that there was no justification for not
shortlisting and appointing
him to the position and Minister’s
decision was an
ad hoc
individual decision that was not
supported by any measures or programmes as the Department had no
approved Employment Equity Plan
in place at the time of the
recruitment process. Further, if it existed it was not consistently
applied as his other male colleagues
were appointed to other vacant
director posts during that period.
[12]
Additionally, Mr Landman contends that the Department did not reserve
the post for any
particular race or gender, as other male candidates
were shortlisted and ultimately appointed to similar-level positions.
Finally,
he contends that if it had not been for the unfair
discrimination, he would have been shortlisted and appointed since he
is qualified
and suitable.
The
Minister’s contentions
[13]
The Minister admits that the Department discriminated against Mr
Landman based on race
and gender but contends that such
discrimination is rationally justified by the Department's pursuit of
achieving its set representativity
targets for designated race and
gender.
[14]
The Minister submitted that the Department promotes employment and
promotion in line with
its equity framework, Employment Equity Plan,
Parliamentary Cabinet's determination on gender representativity, and
EEA. Further,
the Department's draft Employment Equity Plan clearly
demonstrates that there was a determined or determinable framework
within
which to operate, which could assist the Court in assessing
whether his conduct was fair.
[15]
In addition, the Minister contends that the position is at Senior
Management Service level
13, in which white males were adequately
represented at the time and the representation targets had not been
reached. According
to him, no exceptional circumstances existed to
motivate the relaxation of the guidelines,
Employment equity
legal framework
[16]
Section 1 of the Constitution has its foundation on, among other
things, the following
values:
‘
(a)
Human dignity, the achievement of equality and the advancement of
human rights and freedoms.
(b)
Non-racialism and non-sexism.
(c)
Supremacy of the Constitution and the rule of law.
(d)
…’
[17]
Section 2 of the Constitution provides that:
‘
This
Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed
by it
must be fulfilled.’
[18]
Section 7(2) of the Constitution requires the State to respect,
protect, promote, and fulfil
the rights in the Bill of Rights. Thus,
the State must operate within the confines of the Constitution, which
is the supreme law
of this country.
[19]
Section 6
(1)
[2]
of the EEA proscribes unfair discrimination in a manner akin to
Section 9 of the Constitution, which provides that:
‘
(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.’
[20]
Section 195 of the Constitution provides for the values and
principles governing public
administration, and it reads:
‘
(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 must 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 career-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.
(2)
The above principles apply to—
(a)
administration in every sphere of government;
(b)
organs of State; and
(c)
public enterprises.
(3)
National legislation must ensure the promotion of the values and
principles listed in subsection
(1).
(4)
The appointment in public administration of a number of persons on
policy considerations
is not precluded, but national legislation must
regulate these appointments in the public service.
(5)
Legislation regulating public administration may differentiate
between different sectors,
administrations or institutions.
(6)
The nature and functions of different sectors, administrations or
institutions of public
administration are relevant factors to be
taken into account in legislation regulating public administration.’
[21]
The
provisions of section 11(2) of the Public Service Act
[3]
(PSA) are apposite in this regard, and they provide as follows:
‘
In making of any
appointment in terms of section 9 in the public service-
(a)
all persons applied and qualify for the appointment concerned shall
be considered; and
(b)
the evaluation of persons shall be based on training, skills,
competence, knowledge and
the need to redress, in accordance with the
Employment Equity Act, 1998 (Act 55 of 1998), the imbalances of the
past to achieve
a public service broadly representative of the South
African people, including representation according to race, gender
and disability.’
[22]
In
Minister
of Correctional Services and Others v Z.A Duma
[4]
,
Davis JA held that:
‘
[11]
In order to evaluate the dispute as presented by the parties to this
Court, it is necessary to consider
the relevant law. Section 6 (1) of
the EEA provides that no person may unfairly discriminate, directly
or indirectly, against an
employee in an employment policy or
practice on one of a number of its specified grounds as set out in
the section, which include
“on any other arbitrary ground”.
Turning to s 6(2) of the EEA, it is not unfair discrimination to take
affirmative
action measures consistent with the purpose of EEA or to
distinguish, exclude or prefer any person on the basis of an inherent
requirement for a job. Section 11 (1) provides that, if unfair
discrimination is alleged on a ground listed in s 6(1), the employer,
against whom allegation is made, must prove, on a balance of
probabilities, that such discrimination –
(a)
did not take place as alleged
(b)
is rational not unfair or is otherwise justifiable
Section 11(2) provides
that if unfair discrimination is alleged on an arbitrary ground, the
complainant must prove, on a balance
of probabilities, that
(a)
the conduct complained of is not rational; and
(b)
the conduct complained of amounts to discrimination; and
(c)
the discrimination is unfair.’
Analysis
[23]
It is common cause that the Department is a designated employer as it
employs more than
the threshold in the EEA. Therefore, section 20 of
the EEA requires the Department to design, implement, monitor and
evaluate affirmative
action measures within the workplace by adopting
an Employment Equity Plan.
[24]
The Supreme
Court of Appeal in
Gordon
v Department of Health: Kwa Zulu Natal
[5]
held that:
‘
[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
random
action is impermissible. Compare Independent Municipal and Allied
Workers Union v Greater Louis Trichardt Transitional Local
Council
(2000) 21 ILJ 119 (LC) at 1125 para 19” where it 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 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]
…
[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.’
[25]
It is apparent from the above authority that an employer must address
representivity in
the workplace within the framework of a plan or
program and cannot take an
ad hoc
decision. Section 20 of the
EEA requires the designated employer to prepare and implement an
employment equity plan that will steer
the employer towards achieving
employment equity in the workplace. The duration of the employment
equity plan may not be shorter
than a year or more than five years.
Section 23 of the EEA states that before the end of the period of the
current equity plan,
the employer must prepare a subsequent equity
plan.
[26]
Section 44
of the EEA allows the Director General to review the equity plan of
any designated employer to determine whether it complies
with the EEA
and other legislative requirements in terms of employment equity. The
recommendation in terms of section 44 of the
EEA is binding on the
employer, and should the employer be unhappy with the recommendation,
it first needs to be reviewed and set
aside by the Labour Court
[6]
.
[27]
The Court
in
Harksen
v Lane NO and others
[7]
formulated the test applicable in matters relating to unfair
discrimination claims. The first question is whether there was
differentiation.
If so, does the differentiation amount to
discrimination? And if so, whether such discrimination is fair?
[28]
In
casu
, it is common cause that the respondents' equity plan
had lapsed at the time of the shortlisting. It is also common cause
that
a draft proposed equity plan for the new period was rejected by
the Director General for review. The Minister admits that he
discriminated
against Mr Landman based on race and gender. The issue
is whether such discrimination was fair and based on a justifiable
reason.
[29]
The Minister contends that the discrimination against Mr Landman is
rationally justifiable
as the Department implemented the draft
employment equity plan to achieve its set representivity targets for
designated groups
and gender representativity. In explaining the
draft employment equity plan, the Minister submits that Agriculture,
Fisheries and
Environment were integrated in 2010 to form the
Department of Agriculture, Forestry and Fisheries. At the time, the
Department
of Agriculture had a five-year employment equity plan for
the period April 2006 to March 2010 with the following principles:
‘
It is also the
primary principle of this plan to align all departmental strategies,
policies, and practices to the plan in ensuring
the successful
attainment of our departmental targets in so far as numerical goals
are concerned.'
[30]
The newly established Department of Agriculture, Forestry, and
Fisheries, after or during
the integration process, drafted a
five-year employment equity plan for the period March 2010 to April
2014 that was submitted
to the Department of Labour. The equity plan
was not approved due to insufficient consultation with different
unions.
[31]
Before that and on 12 May 2010, the Transformation Forum (TF)
reported that even though
the statistics for the Fisheries and
Forestry components were not yet included, the Department
"
successfully managed to ensure compliance to the EE
targets
". Mr Landman was an
ex officio
observer and,
in some, a member of these TF meetings. On 15 November 2012, having
full knowledge of the status of the employment
equity plan, Mr
Landman enquired whether the Department had an employment equity plan
for the years 2011 and 2012. The transformation
officer recorded that
the Department evokes other legislation and regulations once the
employment equity plan expires.
[32]
The
Minister contends that there is no room for Mr Landman's contention
that the Department should have acted within an approved
employment
equity plan, as the draft employment equity plan provided guidance
and the framework to comply with employment equity
targets and evoked
the provisions of EEA. In this regard, the Minister relied on
Willemse
v Patelia N.O and Others.
[8]
,
where
the Court stated as follows:
‘
[34]
Obviously, an employment equity is helpful as framework within which
to determine the fairness of an employer’s
discriminatory
decisions when it purports to make appointments, or refuse to make
them, in furtherance of the employer’s
employment equity
objectives…There accordingly was a determined or determinable
framework within which the DEAT was to operate
and against which one
can assess whether the conduct of the DEAT herein was fair and
whether its constituted an unfair labour practice
or not … I
am therefore satisfied that the fact the DEAT did not have an
employment equity plan as required by the EEA,
does not in and by
itself render the refusal to promote Dr Willemse unfair. I also do
not believe that the absence of an employment
equity plan is in and
by itself a cause of action when dealing with the question whether
the employer committed an unfair labour
practice relating to its
failure or refusal to appoint or promote an employee.’
[33]
The Minister further contends that the Department's draft employment
equity plan demonstrates
a determined or determinable framework
within which to operate and against which one can assess whether the
first respondent's
conduct was fair.
[34]
In addition, the Minister contends that when Ms Mashele was
appointed, white males were
adequately represented within the SMS,
and the representativity targets or numeral goals of 50% were not yet
reached or achieved
in terms of the draft employment equity plan. In
addition, the Minister contends that no exceptional circumstances
existed to motivate
the relaxation of the guidelines and that the
representativity or numerical goals targets had yet to be achieved.
[35]
Lastly, the Minister contended that in addition to being duly
qualified based on the post's
requirements, another significant
requirement to be met was the Minister’s intention to give
preference to candidates from
previously disadvantaged backgrounds
regarding its employment equity and representativity targets.
[36]
In
Solidarity
obo Pretorius v City of Tshwane Metropolitan Municipality
[9]
,
the City of Tshwane failed to shortlist a candidate based on his race
and gender and relied on a lapsed equity plan. In determining
whether
the non-shortlisting was unfair discrimination based on gender and
race, the Court held that an action taken to further
affirmative
action must be capable of measurement and should be able to be
evaluated and monitored. Without such targets and goals
in an active
or approved equity plan, there was no way to measure whether the
non-shortlisting was an act in furtherance of equity
within the
workplace. As such, the Court held that decisions based on an equity
plan that had lapsed amounted were discriminatory,
without
justification and unfair.
[37]
It is common cause that under the draft equity plan, the statistics
for the Fisheries and
Forestry components were not yet included.
Thus, the Department's numerical goals had not yet been set in a new
equity plan. Although
the EEA is the legal framework within which
every employer must operate, it lays the framework for affirmative
action measures
and does not prescribe those measures, which are
found in the equity plan.
[38]
To an extent that the Minister seeks to rely on the matter of
Willemse
is distinguishable from the matter herein. In the
matter at hand, not only had the equity plan lapsed, but the new
draft equity
plan was rejected, with the Director General making
recommendations to incorporate it into the equity plan, thereby
finding that
the equity plan was not in compliance with the EEA and
equity legislative framework. Can an equity plan that does not comply
with
equity legislation be implemented?
[39]
In the
matter of
Director
General: Department of Labour v Win-Cool Industrial Enterprise (Pty)
Ltd
[10]
,
although in the context of implementing a fine on the non-compliant
employer, the Court held that even though the employer had
100%
representation from designated groups, the employer failed to comply
with the recommendations of the Director General. This
failure
tainted the equity plan, as a genuine equity plan could only have
been filed after consultation with the relevant stakeholders
regarding the items listed in the EEA. The employer was found
non-compliant because it had drafted an equity plan without
consultation
with the workforce, as was the case herein.
[40]
In the current matter, it is not apparent if the Director General
took further steps to
enforce the recommendations or if the
Department implemented them, or if they have since lapsed. Evidently,
the Director General’s
recommendations had not lapsed at the
time of the non-shortlisting. The question is whether, under the
circumstances, a non-compliant
equity plan could be implemented?
[41]
In a situation where an equity plan was rejected and not yet
corrected, the argument that
implementing a rejected equity plan is
consistent with the furtherance of the employment equity legislative
goals and framework
cannot stand as that very same equity plan was
already rejected on the basis that it was not in compliance with the
very equity
frameworkon which the Minister is relying.. Therefore it
follows that such a plan cannot be implemented.
[42]
The principle was laid down in
Gordon.
A decision not to
shortlist and appoint is
ad hoc
without a proper equity plan.
This Court in
Solidarity
supported this decision, holding that
a lapsed equity plan cannot be implemented, and any decision taken in
terms thereof would
be unfair.
[43]
What does
this spell for the applicant? This Court should determine whether the
applicant would have been promoted into the position
‘but-for’
the unfair discrimination. In
Sun
International Management (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[11]
the Court held that:
‘
[11]
There was also no evidence before the arbitrator as to why the
interview process would have necessarily have resulted
in Mogoro’s
appointment. Having inferred, wrongly or rightly, that Mogoro did
have the minimum qualifications, the arbitrator
then jumped to the
conclusion that he therefore was the best candidate, which is
illogical. The arbitrator overlooked that Mogoro
also needed to
demonstrate not only that he was a suitable candidate for
consideration but that he was the best candidate…’
[44]
The Court
held in
Ekurhuleni
Metropolitan Municipality and Another v SALGBC and Others
[12]
held that ‘protected promotion’ should only be awarded
when it can be established that the applicant was the best candidate
for the job, ‘but for’ the unfair conduct he would have
been promoted. The Court then set aside the award of 'protected
promotion' because the applicant failed to provide evidence that had
he been shortlisted, he would have been the best candidate
for the
job.
[45]
In this
matter, 'but for' the unfair conduct of the Department, Mr Landman
would have been allowed to compete for the position.
However, there
is no guarantee that he would have been the candidate recommended for
appointment. Therefore, there is no grounds
for a protected
promotion. This Court in
KwaDukuza
Municipality v SALGBC and Others
[13]
held that protected promotion is merely a disguised form of
compensation and substituted the award of protected promotion
with an
award of compensation.
Conclusion
[46]
The Department's equity plan had not only lapsed at the time of the
shortlisting, but the
Director General also rejected the new draft
equity plan finding it non-compliant with the legal framework it
purports to uphold.
Therefore, any decision made in terms of it
cannot be justifiable, and any decision that discriminates based on
it will be unfair.
[47]
Mr Landman has
prima facie
shown that he would have been
shortlisted for the position because he met the minimum requirements.
However, this does not naturally
translate to him being the best
candidate for the job. Considering the evidence, it is apparent that
Mr Landman was not shortlisted
due to the unfair conduct of the
Department. However, he has yet to establish that 'but for' this
conduct, the defendants would
have appointed him. In the
circumstances, a
solatium
is an appropriate relief
.
[48]
Concerning costs, the requirements of law and fairness dictate that
there should be no
order as to costs.
[49]
Accordingly, the following order is made:
Order
1. The
Respondent is found to have committed an unfair labour practice
against the applicant by not shortlisting
him.
2. The
Respondent is to pay to Mr Landman compensation equivalent to his
five (5) months’ salary calculated
at the rate of his
remuneration as per the date of the Minister’s decision to not
shortlist him.
3.
There is no order as to costs.
D. Mahosi
Judge of the Labour Court
of South Africa
Appearances
For the applicant:
Mr LP
Phatshwane of Phatshwane Attorneys
For the first
respondents:
Advocate J.C.
Basson
Instructed by:
State Attorney
[1]
No.
55 of 1998, as amended.
[2]
“
(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,
birth or on any other
arbitrary ground.”
[3]
Act 103 of 1994
[4]
(CA10/2016)
[2017] ZALAC 78
(23 June 2017) at para 11.
[5]
(2008) 29 ILJ 2535 (SCA).
[6]
See
Director-General,
Department of Labour v Comair Ltd
[2009]
11 BLLR 1063
(LC) at para 40.
[7]
1997
(11) BCLR 1489 (CC).
[8]
[2007] 2 BLLR 164
(LC). See also
Stone
v South African Police Services
[2013]
1 BLLR 70
(LC). In both cases, the equity plan was awaiting
approval. Nothing in the law states that a plan must be approved to
be implemented,
which is distinguishable from the matter herein,
where the equity plan was found non-compliant.
[9]
[2016]
7 BLLR 685
(LC).
[10]
[2007]
9 BLLR 845 (LC).
[11]
(JR939/14) [2016] ZALCJHB 433 (18 November 2016)
[12]
(JR369/15) [2019] ZALCJHB 91 (10 May 2019). See also:
Ethekwini
Municipality v SALGBC and Others
(2022)
43 ILJ 2781 (LC).
[13]
(2009) 30 ILJ 356 (LC).