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[2012] ZALAC 44
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Zandberg v National Commissioner: South African Police Services (DA18/2010) [2012] ZALAC 44 (23 March 2012)
Republic
of South Africa
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT DURBAN)
Not Reportable
Case no: DA18/2010
In the matter between:
INSPECTOR J ZANDBERG
.............................................................................
Appellant
and
NATIONAL COMMISSIONER:
SOUTH AFRICAN
POLICE SERVICE
.......................................................................................
Respondent
Heard: 22 November
2011
Delivered: 23 March
2012
Summary:
The issue was whether the failure by the SAPS to promote the
Appellant to the rank of captain constituted an unfair labour
practice.
Found it was not
.
CORAM:
PATEL JA, NDLOVU JA and LANDMAN AJA
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Landman AJA
Introduction
[1] Inspector J Zandberg
(“the appellant”) appeals with leave of the Labour Court
(Pillay J) against the whole of her
judgment delivered on 16 October
2009 in terms of which the arbitration award ordering the National
Commissioner of the South African
Police Service (“the
respondent”) to promote the appellant to Captain, was reviewed
and set aside.
Background
[2] The facts of this
appeal can be briefly stated as follows:
(a) The South African
Police Service advertised post 6974 in September 2005. This post was
for a Platoon Commander, National Intervention
Unit, Durban.
(b) The appellant, an
Inspector in the National Interventions Unit, based in Durban applied
for the post.
(c) The appellant was
shortlisted and interviewed by a panel. The panel found the appellant
was suitable for appointment. The panel
recorded that the appellant
had scored the highest score, followed by Inspector N E Ntoyi and
another candidate. The panel recommended
that the appellant be
promoted to the rank of Captain in this post.
(d) In accordance with
the prescribed procedure the recommendation was submitted to a
divisional panel consisting of Divisional
Commissioner A H Lamoor
(hereafter referred to as the “Divisional Commissioner”).
This panel examined the recommendation,
declined to follow it and
recommended to the respondent that Inspector Ntoyi be promoted to the
post.
(e) The respondent
promoted Inspector Ntoyi to the post.
(f) The appellant was
aggrieved and referred a dispute to the Safety and Security Sectoral
Bargaining Council. Inspector Ntoyi was
joined in the proceedings.
The arbitrator noted that the issue to be decided was whether the
respondent’s conduct in failing
to promote the appellant was
unfair and constituted an unfair labour practice.
(g) After hearing
evidence the arbitrator handed down an arbitration award on 15 April
2008 which,
inter alia
, directed the respondent to promote the
appellant to the rank of Captain in the post.
(h) The respondent was
dissatisfied with the award and launched an application in the Labour
Court to review and set it aside. The
application was successful.
(i) The appellant was
aggrieved with the decision of the court
a quo
and hence this
appeal.
[3] Mr S Van Vollenhoven,
who appeared for the appellant, attacked the fairness of every stage
of the process leading to the respondent’s
decision not to
appoint the appellant and also challenged the substantive fairness of
the decision. However, at the outset of the
hearing, Mr Van
Vollenhoven and Mr Krüger, who appeared for the respondent,
agreed that:
The respondent’s
final decision was to be exercised in accordance with the provisions
of the Employment Equity Act 55 of
1998 (“the
Employment
Equity Act).
The
respondent was not
bound by the recommendations of the first and second selection
panels.
Affirmative action is a
constitutional imperative.
The respondent was
obliged to implement the SAPS’s employment equity plan.
The effect of this
agreement was to limit the main submissions of the appellant which,
initially, were centred on the inapplicability
of the injunctive to
apply affirmative action.
[4] Counsel also agreed
that the record was of such a standard that this Court could decide
the appeal with reference to it. Condonation
was granted in respect
of late filing of the record.
The determination
(classification) of the post
[5] The appellant's
principal contention, one which engaged the attention of the
arbitrator and the court
a quo
, relates to the respondent’s
decision to determine (classify) the post and advertise it as it was
done.
[6] The governing
instrument is National Instruction 1/2004 (the National Instruction)
which regulates the promotion process (including
fast-track
promotions) within defined career paths of employees up to salary
level 12. A Captain’s post is a salary level
8 post.
[7] Vacant posts are
generally advertised on a quarterly basis (see clause 5(2) of the
Instruction).
[8] Clause 5(3) provides
for the advertisement of posts. It reads:
‘
The National
Commissioner may determine that certain posts be advertised for the
designated or non-designated group. If posts are
advertised as such,
employees belonging to the non-designated group may only apply for
the post advertised for the non-designated
group, while employees of
the designated group may apply for any of the post advertised for the
designated or non-designated groups.
The non-designated group
includes all white males. The designated group includes all African
males and females, Indian males and
females, coloured males and
females white females and persons with disabilities.’
[9] The purpose of clause
5(3) is to facilitate the goal of a representative police service
which broadly reflects the demographics
of the country. In order to
achieve this white males, who are predominant in the police services,
are restricted from applying
for posts which are advertised as
designated posts.
[10] A shift in the way
the National Instruction is implemented has taken place. In order to
reduce, eliminate or circumvent complaints
levelled at the
restriction of white males to applications for non-designated posts
only, all posts are advertised without specifying
whether they are
designated or non-designated. Vacant posts are simply advertised.
But, according to Director Van Rensburg, who
testified at the
arbitration, the concern with representivity remains unaltered.
Representivity remains an important consideration
as regards each and
every application for promotion.
[11] The appellant's
contention is that this approach is not authorised by the National
Instruction and therefore constitutes a
gross irregularity which
renders the process unfair. The motivation for this submission rests
upon the belief that the intention
of determining and advertising
such a post as a non-designated post meant that affirmative action
would not apply in the selection
of the successful candidate for the
post.
[12] The court
a quo
did not subscribe to this view. Mr Van Vollenhoven has referred to a
number of awards where the approach he contended for was adopted.
Arbitrators, who have adopted such an approach, have, in my view,
done so by seeking to draw a logical inference from the National
Instruction. But clause 5(3) of the National Instruction must be
interpreted against the broader background. This background is
set
by:
(a) The Constitution of
the Republic of South Africa, 1996 (“the Constitution”)
which provides, as regards the public
administration of this country,
in s
ection 195(1) that:
’
Public
administration must be governed by the democratic values and
principles enshrined in the Constitution, including the following
principles:
(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...’ (My emphasis)
(b)
The Bill of Rights, enshrined in the Constitution, which affirms the
principles of equality and outlaws discrimination. It,
however,
permits affirmative action in an attempt to address the inequalities
of the past and to normalise our society. Regard
must be had to the
observations of Moseneke J (as he then was) in
Minister
of Finance and Another v Van Heerden
1
where
he said
‘
A
comprehensive understanding of the Constitution’s conception
of equality requires a harmonious reading of the provisions
of s
9. Section 9(1) proclaims that everyone is equal before the law
and has the right to equal protection and benefit of
the law. On
the other hand, s 9(3) proscribes unfair discrimination by the
State against anyone on any ground including those
specified.
Section 9(5) renders discrimination on one or more of the listed
grounds unfair unless its fairness is established.
However, s 9(2)
provides for the achievement of full and equal enjoyment of all
rights and freedoms and authorises legislative
and other measures
designed to protect or advance persons or categories of persons
disadvantaged by unfair discrimination.
Restitutionary measures,
sometimes referred to as “affirmative
action
”
,
may be taken to promote the achievement of equality. The measures
must be “designed” to protect or advance persons
disadvantaged by unfair discrimination in order to advance the
achievement of equality.’
(c) The
Employment Equity
Act which
provides detailed rules for achieving these goals including
the obligation to prepare and submit an employment equity plan.
[13] The National
Instruction may not and, in my view, does not provide that
affirmative action would not be applied in the event
that a post was
determined as a non-designated post.
[14] When a post is
determined as a designated post, non-designated persons, i.e. white
males, are completely excluded from applying
for the position. This
is a strict form of affirmative action. The construction, which the
appellant suggests is applicable to
clause 5(3), ignores the first
sentence of that sub-clause. The determination, that certain posts be
advertised for the designated
group and others for the non-designated
group, is a discretion entrusted to the respondent. In exercising
this discretion, in the
way in which he has done, the respondent has
widened, on the face of it, promotional opportunities for white males
in the South
African Police Services. It
prima facie
benefits
the appellant.
[15] The benefit is not
an insubstantial one. Depending upon the circumstances of the case,
it may well be that a white officer
may be promoted even where there
is an oversupply of white officers in the category in question.
The first selection
panel
[16] It is the
appellant's case that the proceedings of the first panel, chaired by
Assistant Commissioner Freyer, were marred by
gross irregularities
which have the consequence that the recommendation of the panel
should be set aside.
No secretary appointed
[17] One of the
appellant's complaints was that no secretary had been appointed to
serve the panel. The appellant however conceded
that the secretary
has no role in regard to the substantive selection process. In any
event the selection panel recommended the
appellant for promotion so
that any irregularity (if there was any) clearly did not prejudice
the appellant.
No representative of
the national component on the panel
[18] This point was
initiated during the cross-examination of the Divisional
Commissioner. But no evidence was presented that a
representative of
the national component was not part of the panel. There is therefore
no merit in this point.
The scores
[19] The appellant
submits that the panel should have scored him much higher on
experience than it did. Moreover, the appellant
alleged that he
should have been scored higher in comparison to Inspector Ntoyi.
Inspector Ntoyi’s score card is missing.
The only evidence
which suggests that Inspector Ntoyi had less experience than the
appellant is the appellant’s own opinion
which he provided
under oath at the arbitration hearing and the fact that he has
longer, but broken, service. The appellant did
not provide reasons
for his opinion. No evidence of any irregularity has been shown.
Employment equity plan
[20] As far as employment
equity is concerned, the panel according to the Divisional
Commissioner, had the
section 21
report before it. This report will
be discussed in more detail later. The panel stated that the
promotion of the appellant would
enhance representivity at the unit
level. It is not clear how the panel arrived at this conclusion. It
is undoubtedly a mistake
as there was an oversupply of white males in
the unit.
The second selection
panel
[21] The recommendations
of the first panel served before a second panel. As the post in
question is a national post, the recommendation
was submitted to the
second panel consisting only of the Divisional Commissioner.
[22] The Divisional
Commissioner decided not to recommend the appellant for promotion and
reversed the recommendation of the first
panel because he needed to
improve representivity of the unit. The promotion of the appellant
would not advance this goal but would
hinder it. In order to improve
representivity, the Divisional Commissioner decided to recommend the
second candidate, Inspector
Ntoyi, for promotion.
[23] The respondent, it
may be inferred, agreed with the Divisional Commissioner’s
recommendation and implemented it.
Obligation regarding
due process by the first panel
[24] The next complaint
was that the second panel had not complied with the duty, set out in
the National Instruction, to satisfy
itself that the process of the
first panel took place in accordance with the National Instruction.
The evidence shows that the
Divisional Commissioner must have
examined the process because he was not satisfied with the first
panel’s recommendation.
The statement that the appellant’s
promotion would advance representivity was clearly erroneous and not
in accordance with
the National Instruction.
Was SAPS’s
employment equity plan taken into account?
[25] The appellant
submits that this panel too did not consider an employment equity
plan. The submission is based on two legs.
The first is that there
was no employment equity plan available to it when it considered the
recommendation. The second is based
on an inference that because the
application of equity was allegedly inconsistent, there was no such
plan available (see paragraphs
9, 10, and 11 of the grounds of
appeal.
[26] The principal
challenge to the second panel’s recommendation is that it was
made in the absence of an employment equity
plan. The
Employment
Equity Act requires
the South African Police Services to have an
employment equity plan. The reason for this is that, all employers
including the South
African Police Service must work programmatically
towards the achievement of equity amongst its employees. Without a
plan, affirmative
action measures may be arbitrary.
[27] In his
evidence-in-chief the Divisional Commissioner said that there is an
employment equity plan in place. He referred to
a document entitled
“Critical analysis operational response services: period
2005-04-01 to 2006-06-30”. The Divisional
Commissioner said
that this document constitutes the applicable report in terms of
section 21
of the
Employment Equity Act. This
document is supported
by the employment equity plan and reflected the profile of the
division at that stage. It was used to determine
the equity
composition of the division. This report reflects that at salary
level 8 (the level of Captain):
African males are
underrepresented by 17;
Indian males by 4;
Coloured males by 1;
White males are
overrepresented by 27; and
Females of every racial
group are also underrepresented.
Application of
employment equity
[28] The Divisional
Commissioner was vigorously cross-examined with a view of showing
that his recommendations regarding other candidates
conflicted with
the available documentation regarding employment equity. The
Divisional Commissioner dealt with this by stating
that he did not
have the information at his disposal and pointed out that some
comparisons raised by the appellant’s representative,
were not
based on the applicable documentation for the period in question. I
am unable to fault the Divisional Commissioner on
the basis of his
evidence. In other instances the Divisional Commissioner agreed that
affirmative action was not applied strictly
so that more than one
non-designated officer was preferred above designated officers. But
this, as the Divisional Commissioner
pointed out, was where the
analysis showed that the unit in question was broadly representative
of the demographic profile of the
country. In the case of the
appellant white males were so far in oversupply that affirmative
action was necessary.
Written records
[29] Mr
Van
Vollenhoven correctly pointed out that the panels were obliged to
keep a record and that the Divisional Commissioner was obliged
to
record the reasons why he interfered with a recommendation by the
first panel. The commissioner failed to do this.
[30] Written reasons for
interfering with the recommendation by the first panel were provided
to the appellant. There is no reason
to think that the reasons
provided in writing or that the Divisional Commissioner’s
evidence, as to why he changed the recommendation,
was untrue.
[31] This is not to
approve of the Divisional Commissioner’s failure to record his
reasons. The reasons must be judged at
the date the recommendation
was altered. The decision maker cannot seek to justify it at the time
of the arbitration. The failure
to record the reasons can give rise
to disputes which would not ordinarily arise if the reasons had been
contemporaneously recorded.
[32] The Divisional
Commissioner’s failure to comply with his duties was irregular
but it cannot be said that this failure
was such as to vitiate the
proceedings.
Co-option of members
to the second panel
[33] The Divisional
Commissioner called in the chairperson of the first panel and the
head of personnel services to discuss the
first panel’s
recommendation. The Divisional Commissioner believes that he was
entitled to do so. The National Instruction
does not provide for such
a procedure. It would be unobjectionable for a panel to consult
personnel services; provided that the
decision which the panel must
make is not entrusted to them. There is no authority for calling in
the chair of the first panel
although there may be an occasion when
clarification is required. But there is no evidence on the facts that
the Divisional Commissioner’s
action led to a gross
irregularity.
Conclusion
[34] The plain,
unvarnished facts are that the appellant had been selected by the
first panel on account of the scoring. He was
about a point ahead of
Inspector Ntoyi. The appellant has not shown that he should have
outscored Inspector Ntoyi by more than
this. The first panel erred in
stating that the appellant’s promotion would advance
representivity in the unit. When the
Divisional Commissioner received
this information he realised there was a mistake. He took into
account employment equity and concluded
that he could not justify
promoting the appellant and recommended the promotion of Inspector
Ntoyi. This result, as the court
a quo
found, was entirely
reasonable. The arbitrator’s decision to the contrary was not
one to which a reasonable arbitrator could
have come; based as it was
on an error of interpretation.
[35] There is no merit in
the point raised in the appellant’s heads concerning
condonation of lateness in the proceedings
before the court
a quo
.
Costs
[36] Mr Krüger
stated that the respondent would not seek an order for costs if the
appellant was unsuccessful.
Order
[37] The appeal is
dismissed and I make no order as to costs.
____________
A A Landman AJA
Acting Judge of Appeal
I agree.
_____________
C N Patel JA
Judge of the Labour
Appeal Court
I agree
____________
S K Ndlovu JA
Judge of the Labour
Appeal Court
APPEARANCES:
FOR THE APPELLANT: Adv S
Van Vollenhoven instructed by Nirashieka Bramdeo Attorneys.
FOR THE RESPONDENT: Adv T
P Krüger instructed by The State Attorney.
1
[2004] ZACC 3
;
2004
(6) SA 121
(CC) at para 28.