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[2010] ZALAC 9
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University of South Africa v Reynhardt (JA36/08) [2010] ZALAC 9; (2010) 31 ILJ 2368 (LAC) ; [2010] 12 BLLR 1272 (LAC) (25 May 2010)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case No.: JA 36/08
UNIVERSITY OF SOUTH
AFRICA Appellant
and
E C
REYNHARDT Respondent
JUDGMENT:
DAVIS JA:
Introduction
[1] In this matter
respondent alleged that he was discriminated against by appellant on
the grounds of race, in that the latter
failed to appoint him in the
position for he was the most suitable candidate. He contended that
appellant had incorrectly applied
its own employment equity policy to
appoint a less qualified and hence unsuitable candidate to the
position.
[2] The matter was
referred to the CCMA where conciliation failed. It was then heard
by Ndlovu AJ in terms of section 52(3)(a)
of the Employment Equity
Act 55 of 1998 (“the EEA”). Ndlovu AJ found in favour
of the respondent and declared that
the non appointment of respondent
as Dean of the Faculty of Science from 1 April 2002 constituted
unfair discrimination against
the respondent based on his race.
Appellant was directed to pay respondent compensation in an amount
which was equivalent to
twelve months salary, calculated on the scale
of Dean, applicable as at 1 April 2002, being R 356 484.00, together
with damages
of R 661 629.00. It is against this judgment that the
appellant has approached this court on appeal.
The
factual matrix
[3] The facts as stated
in the statement of case provide an adequate basis by which to
evaluate the dispute. Respondent was appointed
as Dean of the
Faculty of Science of appellant for a three year term commencing on 1
April 1999 and expiring on 31 March 2002.
Upon the expiry of his
term of office, nominations for the appointment of Dean were called
for in accordance with the procedure
for the appointment of a dean as
set out in a circular of 18 January 2002. There were two
nominations, being respondent and Professor
G J Summers, who
qualified as a black person in terms of section 1 of the EEA.
[4] A meeting of the
Faculty of Science was held on 18 February 2002 at which the two
candidates made presentations and answered
questions. An opinion
poll was then taken. Respondent received 79 votes in favour, and 10
members of the Faculty voted against
him. Professor Summers enjoyed
the support of 10 members of the Faculty and there were 76 votes
against his appointment. A
selection committee was convened on 21
February 2002 at which both candidates were interviewed. A majority
found the respondent
to be appointable but Professor Summers not to
be appointable. Four members found both respondent and Professor
Summers to be
appointable, while two members found Professor Summers
to be appointable and the respondent not to be appointable.
Accordingly,
the majority recommended that the respondent be
reappointed as Dean of the Faculty. A minority report recommended
the appointment
of Professor Summers.
5] On 22 March 2002,
notwithstanding the recommendation and the earlier opinion poll, the
Executive Director of Human Resources
Mr Moloto informed respondent
that the Council of appellant had decided to appoint Professor
Summers as Dean of the Faculty of
Science from 1 April 2002.
[6] Respondent pressed
for the reasons for his non appointment to be reduced to writing.
Finally, on 12 April 2002 Mr Moloto responded.
The relevant portion
of his letter reads:
“
The
recommendation of the Selection Committee was referred to the Council
Committee on Human Resources on 19 March 2002 for consideration
and
final approval at the Council meeting of 20 March 2002.
On the basis of the
report of the Selection Committee, it came to the attention of the
CCHR that there had been division on the
matter of appointability by
the Selection Committee. However, after interrogating the report of
the Selection Committee, Council
Committee on Human Resources found
both candidates appointable and recommended to Council that on the
basis of the Employment Equity
Policy, Prof GJ Summers be appointed
as Dean of the Faculty of Science from 1 April 2002 for a three-year
term.
Council approved the
recommendation of the CCHR on 20 March 2002.
”
[7] On 30 March 2002 Mr
Moloto had asked the respondent to stay on as Dean until the return
of the principal of appellant, Professor
B Pityana, who was then
abroad. Respondent replied thus:
“
I
confirm that I wish to take early retirement upon the expiration of
my current term as Dean of the Faculty of Science.
However, with
reference to the request to me by yourself made on the morning of 26
March 2002, I must state the following:
Since my pension is
dependent on the average of my last two years’ salary, it
would be to my financial disadvantage to stay
on as a Professor of
Physics. It is therefore crucial that, should I elect to take
early retirement, the effective date thereof
should be 31 March
2002.
I
can therefore only agree to continue in employment if it is agreed
that I continue on my current terms and conditions of employment
until the matter has been resolved with Dr Pityana.
Should you not
indicate otherwise to me in writing on or before close of business on
29 March 2002, I will assume that you accept
the above.
Please note that I
reserve my rights.
”
[8] Respondent tried to
discuss this situation with the acting principal but his telephone
calls were not returned. Finally, he
had a meeting with Professor
Pityana on 19 April 2002 but nothing was resolved.
[9] On 25 April 2002,
respondent referred the dispute to the Commission for Conciliation
Mediation and Arbitration (‘CCMA’),
alleging that he had
been unfairly discriminated on the grounds of race. Notwithstanding
this referral, further conversations
took place with members of
appellant which culminated in a response from Professor Pityana, to
the effect that respondent’s
pursuit of an action against
appellant at the CCMA militated against a settlement of the dispute.
Accordingly, Professor Pityana
reluctantly had to support
respondent’s application for early retirement.
The
key findings of Ndlovu AJ
[10] The evidence which
was placed before the court
a
quo
indicated that appellant had established a target ratio of 70%: 30%
(blacks: whites) respectively for senior appointments (Dean
and Vice
Dean) which was based on national demographics and with the aim of
addressing the problem employment inequity. Appellant’s
case
was, in effect, that the employment of Professor Summers was seen as
part of the implementation of a transformation process,
particularly
because appellant was looking for a ‘coloured academic’
to be appointed at the level of dean.
[11] Ndlovu AJ examined
the evidence as to the progress achieved by appellant in the
achievement of its target. In his view, on
the evidence, it ‘turned
out to be a proven fact … that at the time Professor Summers
was appointed the ratio was
already 75% : 25% in favour of black
dean’s over white deans which meant that the target of 70% :
30% had already been reached
and surpassed. Upon Professor Summers
appointment the ratio was further increased to 80% : 20% in favour of
blacks…”
[12] It had never been
appellant’s case that Professor Summers was a better qualified
candidate than respondent; to the contrary.
Ndlovu AJ thus found
that as appellant’s equity targets had already been met, there
was no justification for the appointment
of Professor Summers.
Accordingly he held that respondent had been unfairly discriminated
on the basis of race when he was not
appointed as Dean of the Faculty
of Science for a second term, effective from 1 April 2002.
[13] Ndlovu AJ went on to
say that as respondent had only been officially informed that his
application as Dean has been unsuccessful
on 15 April 2002:
“
It
was shameful of the respondent (appellant) that it did not even have
the courtesy to inform the applicant, as soon as it had
decided on
the matter, that his application was unsuccessful
”.
[14] The learned judge
then awarded respondent an amount of R 661 629.00, being the
difference between what respondent would have
received on his
retirement as Dean and what he would have received as a professor,
together with amounts in respect of unpaid leave
and service bonuses.
In addition:
“
I
am satisfied that the circumstances of this case justified the award
of compensation that reflects a punitive element. It seems
to me
that the award equivalent to the applicant’s 12 months’
salary on the Dean’s salary scale would be just
and equitable
in the circumstances
.”
Appellant’s
case
[15] Mr Van der
Westhuizen, who appeared on behalf of the appellant, did not take
issue with the finding that respondent was a superior
candidate and
that, absent justification based upon appellant’s equity plan,
the appeal would have to fail. In his view,
the equity plan which
was adopted by appellant served the purposes of section 2 of the EEA,
which sets out, as the purposes of
the Act, the achievement of:
“
Equity in the
workplace by –
promoting equal
opportunity and fair treatment in employment through the elimination
of unfair discrimination;
implementing
affirmative action measures to redress the disadvantages in
employment experienced by designated groups, in order
to ensure
their
equitable
representation in all occupation categories and levels
in the workplace
.”
Accordingly, if the
appointment of Professor Summers was made in terms of the purposes of
the Act, then, pursuant to section 6(2)
thereof, it could not be
unfair discrimination to take affirmative action measures consistent
with this purpose; that is the appointment
of Professor Summers.
[16] Mr. Van der
Westhuizen correctly noted that the court
a
quo
did
not have difficulty with the appellant’s policy or plan
regarding employment equity but rather with its implementation.
[17] In his view, the
objective facts revealed the following composition of senior
appointments:
1. The position of 19
March 2002 (in the Faculties of Law and Theology and Religious
studies there were vacancies and Prof Reynhardt
was still the Dean in
the Faculty of Science):
Level of Deans
2 White Deans 50%
2 Black Deans 50%
Level of Vice Deans
3 White Vice Deans 33.3%
6 Black Deans 66.6%
Category of Deans
and Vice Deans
5 White persons 38.46%
8 Black Persons 61.54%
2. The position on 1
April 2002 (In the Faculty of Law Prof Mare
was acting and Prof
Summers and Prof Maluleka with their terms as Deans):
Level of Deans
:
4 Black Deans 80%
1 White Dean 20%
Level of Vice Deans
6 Black Vice Deans 66.6%
3 White Vice Deans 33.3%
Category of Deans
and Vice Deans
10 Black persons 66.6%
4 White persons 28.57%
3. The situation if Prof
Reynhardt had been appointed instead of Prof Summers:
3.1 Level of Deans
3 Black Deans 60%
2 White Deans 40%
3.2 Level of Vice
Deans
6 Black Deans 66.6%
3 White Deans 33.3%
3.3 Category of Deans
and Vice Deans:
9 Black
persons 64.29%
5 White
persons 35.71%
[18] The essence of Mr
Van der Wetshuizen’s argument can be summarised thus: On 1
April 2002, if the category of Deans and
Vice Deans was taken
together, appellant had met its target. However, were it to have
appointed respondent rather than Professor
Summer, appellant would
have created a situation where the composition of the senior staff
would no longer have reflected the equity
target. Accordingly,
appellant was justified in making the appointment that it did, in
order to maintain what had been found
to be a justifiable target.
Evaluation
[19] The starting point
for an evaluation of appellant’s case is to be found in
sections 5 and 6 of the EEA, which provide
thus:
“
5.
Elimination
of unfair discrimination
.
– Every employer must take steps to promote equal opportunity
in the work-place by eliminating unfair discrimination in
any
employment policy or practice.
6.
Prohibition
of 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.
(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.
(3) Harassment of an
employee is a form of unfair discrimination and is prohibited on any
one, or a combination of grounds of unfair
discrimination listed in
subsection (1).
”
[20] The key test, in
these disputes is that of unfair discrimination and this was settled
by the Constitutional Court in
Harksen
v Lane N.O.
1997
(4) SA 1
(CC) at para 53:
“
(i) does the
differentiation amount to “discrimination”? If it is on
a specified ground, then discrimination will
have been established.
If it is not on a specified ground, then whether or not there is
discrimination will depend upon whether,
objectively, the ground is
based on attributes and characteristics which have the potential to
impair the fundamental human dignity
of persons as human beings or to
affect them adversely in a comparably serious manner.
(ii) If the
differentiation amounts to “discrimination” does it
amount to “unfair discrimination”? If
it has been found
to have been on a specified ground, then unfairness will be presumed.
If on unspecified ground, unfairness
will have to be established by
the complainant. The test of unfairness focuses primarily on the
impact of the discrimination
on the complainant and others in his or
her situation.”
[21] On the basis of this
test, once respondent could show that he had been discriminated
against on the grounds of race, an issue
which was not disputed, the
onus fell upon appellant to satisfy the court, on a balance of
probabilities, that the discrimination
was not unfair.
[22] The question that
compounds the difficulties in cases, such as the present dispute,
turns on an interrogation of the relationship
between the general
equality protection and the recognition of the need for remedial
measures, perhaps inappropriately referred
to as affirmative action.
[23] The relationship
between section 5 and section 6 of the EEA, poorly drafted as these
sections are as indeed is much of the
Act, nonetheless must be read
in terms of section 9(1) and (2) of the Republic of South Africa
Constitution Act 108 of 1996 (“the
Constitution”). In
short, although it employs different words, the EEA, in order to be
constitutionally compliant, has
followed the architecture of the
Constitution to the effect that section 9(2) of the Constitution
recognises ‘legislative
and other means designed to, protect or
advance persons, or categories of persons disadvantaged by unfair
discrimination in order
to achieve equality.
[24] The problem with
regard to the relationship between equality and constitutionally
mandated remedial measures is described by
Henk Botha (‘Equality,
Plurality and Structural Power’ 2009 (25) SAJHR1) as follows:
“
It
is one of the great paradoxes of South Africa’s constitutional
transition that the Constitution commits us to a non-racial
and
non-sexist society, and yet recognises that we can eradicate
discrimination and redress disadvantage only if we remain conscious
of the deep racial and sexual fault lines characterising our society.
On the one hand, the Constitution is determined to free
individuals
from the shackles of narrow social categories which have, in the
past, been used to determine their identities and
circumscribe their
life chances. On the other hand, it authorises affirmative action
programmes which are based on these very
categories, and filters
complaints of unfair discrimination through categories such as race,
sex, gender, sexual orientation, disability
and religion
.”
[25] In particular, the
relationship between sections 9 (2) and the anti discrimination
provision, section 9(3) and, hence the
observations concerning these
relationships as articulated by Botha, was examined by Moseneke J (as
he then was) in
Minister
of Finance and another v Van Heerden
[2004] ZACC 3
;
2004
(6) SA 121
(CC) at para 33:
“
It
seems to me plain that if restitutionary measures, even based on any
of the grounds of discrimination listed in s 9(3), pass
muster under
s 9(2), they cannot be presumed to be unfairly discriminatory. To
hold otherwise would mean that the scheme of s
9 is internally
inconsistent or that the provisions of s 9(2) are a mere interpretive
aid or even surplusage. I cannot accept
that our Constitution at
once authorises measures aimed at redress of past inequality and
disadvantage but also labels them as
presumptively unfair. Such an
approach, at the outset, tags s 9(2) measures as a suspect category
that may be permissible only
if shown not to discriminate unfairly
.”
In this passage, Moseneke
J captures the idea that the drafters of the Constitution chose the
route of restitutionary measures to
guide the country towards the
destination of a transformed society in which race and gender would
no longer be employed as obstacles
towards the attainment of the
prefigured egalitarian society. Equality is the foundational
principle but remedial measures are
needed for its achievement.
[26] Moseneke J went on
to examine the requirements of section 9(2) of the Constitution. In
order to determine whether a measure
falls within the section, a
threefold enquiry is mandated:
1. Does the measure
target personal categories of persons who have been disadvantaged by
unfair discrimination.
2. Is the measure
designed to protect or advance such persons or categories of persons.
3. Does the measure
promote the achievement of equality.
[27] To the extent that
this test is relevant to the present dispute, reference should be
made to the third requirement, namely
whether the measure promotes
the achievement of equality. In this connection, Moseneke J said:
“
[t]he
long term goal of our society is a non racial, non sexist society in
which each person will be recognised and treated as a
human being of
equal worth and dignity. Central to this vision is the recognition
that ours is a diverse society, comprised of
people of different
races, different language groups, different religions and both sexes.
This diversity, and our equality as
citizens within it, is
something our Constitution celebrates and protects. In assessing
therefore whether a measure will in the
long term promote equality,
we must bear in mind this constitutional vision. In particular, a
measure should not constitute an
abuse of power or impose such
substantial and undue harm on those excluded from its benefits that
our long term constitutional
goal would be threatened.
”
para 44
[28] Appellant’s
case was based on the commendable aim of redressing historical
imbalances and ensuring that the staff of
a critical tertiary
institution would more broadly reflect the demography of South Africa
than had manifestly been the case throughout
the country’s
racist past. For this reason, targets of 70: 30 had been set.
[29] Appellant’s
employment equity program contained another important provision which
read as follows:
“
3.
Occupational
categories and level where
demographic
profile satisfactory
:
In the event where
your department/operational unit has achieved a state of balance in a
way, please do not bother yourselves to
try and do anything then.
The University will have to consider applying the principle of the
‘most suitable candidate’
as and when vacancies have to
be filled in such categories and levels. The principle of
‘preferential treatment’
in view of affirmative action
considerations shall not apply in such incidences. The monitoring
process will take care and ensure
that we do not create skewness
again in applying the principle
.”
[30] On the appellant’s
own equity plan therefore, once appointments had been made which
achieved the proclaimed equity target,
the principle of preferential
treatment was no longer to be followed and appointments were to be
made exclusively on the respective
merit of the relevant candidates.
In itself this fits into the overall idea of equality and its
promotion as captured in the
Constitution.
[31] In this case, no
evidence was placed before the court by appellant to the effect that
the respective merits of the two candidates
could justify the
appointment of Professor Summers over respondent. This point was
conceded by appellant throughout the papers
and again by appellant’s
counsel at the hearing before this Court.
[32] It is important to
emphasise, given the importance of employment equity programmes to
the transformation of South African society
that the resolution of
this dispute does not turn on the constitutionality of appellant’s
equity plan. That plan passes
muster in terms of the analysis that
I have undertaken. The problem for appellant is that the plan
provides expressly when remedial
measures are no longer necessary.
In other words, this case turns upon an application of appellant’s
plan to the facts
of the case.
[33] To return to
appellant’s argument. It amounted to the following: When
the equity target is reached, a selection of
a candidate on merit
alone can only take place if the particular appointment does not
alter the ratio of black to white appointments;
that is that the
ratio does not fall below that provided for in the equity plan.
But, on appellant’s own version, the target
had been reached at
the time the appointment of Professor Summers was to be made.
[34] To the argument
that, had respondent been appointed, the required ratio would have
then been reduced below the target, there
are at least two responses.
Firstly, when the appointment of Professor Summers was made, there
was another vacancy, that is for
the position of Dean of Law.
Professor Mare was then the acting Dean of the Faculty of law. In
the event that the racial composition
of deans and vice deans fell
below the targeted ratio, when appellant came to appoint the Dean of
Law, it would have been required
again to apply the principles of its
equity programme and thus would not have been free to appoint purely
on merit in terms of
clause 3.
[35] Secondly,
appellant’s case was flawed, not because of a commendable
policy but because of the manner in which it sought
to implement its
policy in this case. Once the target had been achieved, its own
policy announced to all its employees that remedial
measures would no
longer apply in the making of further appointments. When the
appointment of the Dean of Science was made, the
required ratio had
been achieved and clause 3 of the plan was then triggered. In the
event that respondent had been appointed,
the equity programme would
then have been applicable to the appointment of the next candidate;
in this case in respect of the deanship
of the Faculty of Law. In
summary, appellant failed to correctly implement its particular
programme.
Compensation
[36] Respondents
cross-appealed against the refusal of the court
a
quo
to
award interest on the amount awarded in terms of
Prescribed Rate of
Interest Act 55 of 1975
. No reasons were given for declining this
particular claim. There does not appear to be any reason why
interest should not
have been so awarded, together with the award of
compensation of damages.
[37] For these reasons
therefore the following order is made:
1. The appeal is
dismissed.
2. The cross-appeal is
upheld and it is ordered that interest at the prescribed rate of
15,5% is awarded on the amounts awarded
to respondent as from the
date on which the matter was referred to the CCMA, being 20 March
2002.
3. The appellant is
ordered to pay the costs of this appeal.
_____________
DAVIS JA
JAPPIE JA
REVELAS AJA
Concur
APPEARANCES:
For
the appellant: G.L
.
Van der Westhuizen
i
nstructed
by: Macrobert Inc
For
the Respondent: Adv. J. Hiemstra SC
Instructed by:
Hannelie Basson Attorneys
Date
of Judgement: 25 May 2010