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[2012] ZALAC 31
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South African Police Services v Solidarity obo Barnard (JA24/2010) [2012] ZALAC 31; [2013] 1 BLLR 1 (LAC); 2013 (3) BCLR 320 (LAC); (2013) 34 ILJ 590 (LAC) (2 November 2012)
Reportable
REPUBLIC OF SOUTH
AFRICA
THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JA24/2010
SOUTH AFRICAN POLICE
SERVICES
...........................................................
Appellant
and
SOLIDARITY OBO MRS R M
BARNARD
...................................................
Respondent
Heard: 4 May 2011
Delivered: 2 November
2012
Summary – Labour
Law – Failure by SAPS National Commissioner to appoint a
recommended white female candidate not unfair
discrimination; white
males and females over represented in the level of the advertised
post;
Constitution - Section
9 (2) not subject to subsection (1) but guarantees the right to
equality;
Employment Equity Act
– measure contemplated in Section 9(2) of the Constitution –
Employment Equity Plan - based on
the Employment Equity Act –
similarly a measure contemplated in Section 9(2).
JUDGMENT
MLAMBO JP
Introduction
[1] The overarching issue
raised in this appeal concerns the relationship between Section 9(1)
and (2) of the Constitution.
1
The relevant provisions
read:
‘
(1) Everyone
is equal before the law and have 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.’
[2] This Court is
required to determine whether the Labour Court (Pretorius AJ) was
justified in concluding that the restitutionary
measures envisaged in
Section 9(2) ‘must be applied in accordance with the principles
of fairness and with due regard to
the affected individual’s
constitutional right to equality’ found in section 9(1). The
restitutionary measures at issue
are the Employment Equity Act (EEA)
2
and the Employment Equity
Plan adopted by the appellant in terms of the EEA, for purposes of
its workplace.
[3] The appellant was
ordered by the Labour Court to promote the respondent’s member,
Captain RM Barnard (Barnard) to a level
9 post of Superintendent. The
appellant had specifically created and advertised the post. This
appeal, with the leave of the Labour
Court, is directed at that
order.
[4] The primary issue
before that court and consequently before us is whether the appellant
unfairly discriminated against Barnard
on the basis of race, namely,
it did not appoint a white female to the post even though she was
rated as the best candidate in
the interviews. A further issue is
whether the appellant’s National Commissioner was vested with
the prerogative not to fill
the advertised post.
Factual background
[5] Barnard, is a white
female who commenced her employment with the appellant in 1989 and
was thereafter promoted to the rank of
Captain in 1997. She served as
Branch Commander, Detective Services at the Hartebeespoort Station
and was after some years, transferred
to the National Evaluation
Service (NES). In September 2005, the appellant advertised a
non-designated post of Superintendent at
salary level 9 in the NES.
At that time Barnard was based in the Internal Audit division still
at the rank of Captain and at salary
level 8. She applied for the
post, was shortlisted and interviewed with six other candidates. She
was assessed as the best candidate
during the interviews and was
given a rating of 86, 67%. The next highest ratings were given to
two
white
male
candidates,
Captains Oschmann and Aschendorf, with ratings of 74,17 and 72,92 %
respectively. They were followed by four black male
candidates of
which Captain Shibambu was the best with a rating of 69,17. The
interview panel expressed the view that the difference
between
Captains Barnard and Shibambu was too vast to recommend the latter as
first choice candidate which, in their view would
compromise service
delivery whereas Barnard’s appointment would ‘definitely
enhance service delivery.’
[6] However, after
perusing the recommendation from the interview panel, Divisional
Commissioner Rasegatla decided that the post
would not be filled as
‘appointing the first three preferred candidates will aggravate
the representivity status of the already
under represented
Sub-section’. The upshot of this decision was that no
recommendations for appointment were made to the
National
Commissioner and the post was not filled.
[7] On 11 May 2006, the
same position was again advertised and Barnard again applied. She was
shortlisted, interviewed and once
more obtained the highest rating,
i.e. 85.33% followed by Captains Mogadima and Ledwaba with ratings of
78% and 74,67% respectively.
They are both black males. Once more
Barnard was recommended for appointment by the interview panel. The
recommendation was also
supported by the Divisional Panel of which
Divisional Commissioner Rasegatla was a member. The Divisional Panel
represented by
Divisional Rasegatla sent the recommendation to the
National Commissioner stating,
inter alia
, that
‘
The
candidate [Barnard] is recommended as the panel’s first choice
candidate for the post. She has proven competence and extensive
experience at National level in the CORE functions of the post and
was rated the highest by the promotion panel... The appointment
of
the candidate will not enhance representivity on salary level nine
but it will not aggravate the current Divisional representivity
figures as she is already part thereof. Appointing the candidate on
salary level nine will however create an opportunity to enhance
representivity on salary level eight in respect of the overall
representation of white females on that level...’
[8] The National
Commissioner
3
however did not approve
the Divisional Commissioner’s recommendation on the basis that
the recommendation did not address
representivity. He was further of
the view that the post was not critical and that the non-filling
thereof would not affect service
delivery. He therefore did not make
any appointment and called on the Divisional Commissioner to
re-advertise the post in the next
recruitment round and called on the
latter to ensure that all efforts be made to address representivity
when advertising and interviewing
for the post.
[9] Barnard, obviously
feeling that she had been unfairly treated by not being appointed,
pursued an internal grievance and thereafter
a referral to the
Commission for Conciliation Mediation and Arbitration (CCMA) for
conciliation. She derived no joy out of those
processes and her
matter was escalated to the Labour Court by her union (Solidarity)
who also represents her in this appeal. In
the statement of claim
lodged on her behalf, the case made out was essentially that she had
been discriminated against because
she is a white person, that she
would not have been so discriminated had she not been white and that
such discrimination amounted
to direct discrimination on the basis of
colour in terms of section 6(1) of the Employment Equity Act. This
section provides:
‘
6 (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.’
[10] It was also asserted
on Barnard’s behalf that discriminating against her on that
basis was unfair, that such discrimination
was indefensible being
unfair on any basis either in terms of the Employment Equity Act or
any other conceivable basis. The relief
sought on her behalf was
inter
alia
,
for a declarator that she had indeed been unfairly discriminated
against on the basis of race in terms of section 6(1) of the
Employment Equity Act and that the appellant be ordered to promote
her to the rank of Superintendent retrospectively to 1 December
2005,
that the appellant pay her damages in terms of section 50(2)(a)
4
of the Employment Equity
Act equivalent to the monetary loss she suffered from 1 December 2005
to the date of judgment and that
she be compensated in terms of the
same provision in an amount deemed fit by the court as well as costs
of suit.
[11] The Labour Court
found that the failure to promote Barnard was a decision based on her
race, that it constituted discrimination
and that the appellant had
failed to discharge the
onus
of showing that such
discrimination was fair. It held further that the appellant had
relied on the principal consideration of the
numerical targets at
salary level 9 as dictated by the Employment Equity Plan, with no
apparent consideration of the fact that
Barnard’s appointment
would have the mitigating effect of alleviating the
underrepresentation of designated groups at salary
level 8; that no
consideration was given to her right to equality and dignity as well
as to her personal work history and circumstances,
and lastly, that
the failure to appoint Barnard was unfair and therefore not in
compliance with the provisions of the Employment
Equity Act.
[12] The findings and
conclusions of the Labour Court are informed by certain general
principles that were conceived by the Labour
Court in considering the
matter. In the first place, the Labour Court stated that the
Employment Equity Act and Employment Equity
Plan were to be applied
in accordance with the principles of fairness and with due regard to
the affected individual’s constitutional
right to equality. The
Labour Court stated that it was not appropriate to apply ‘without
more’ the numerical goals
set out in the Employment Equity Plan
as that approach was ‘too rigid’.
[13] The Labour Court’s
second general principle, which is closely allied to the first, also
seeks to elevate the right to
equality of individuals, who may be
adversely affected by the implementation of restitutionary measures,
over the implementation
of such measures. Expanding on this view, the
Labour Court stated that ‘as a matter of substance and
procedure’ Employment
Equity Plans had to be effected with due
regard not only to the right to equality but also to the dignity of
such individuals.
In keeping with this trend of thought, the Labour
Court stated that it followed that the extent to which the
implementation of
Employment Equity Plans could discriminate or
adversely affect individuals was limited by law in the sense that the
application
of the provisions of the Employment Equity Act had to be
rational and fair and with due recognition of an individual’s
right
to equality and dignity.
[14] The other principles
the Labour Court espoused were that, where a post could not be filled
due to the paucity of suitable candidates
from an underrepresented
category, promotion to a post should not ‘ordinarily and in the
absence of a clear and satisfactory
explanation be denied to a
suitable candidate from another group’; that there had to be a
rational connection between the
provisions of the Employment Equity
Plan and the measures adopted to implement the provisions of that
plan; and lastly that service
delivery was a relevant factor to be
taken into account in the implementation of Employment Equity Plans.
[15] The Labour Court
went on to conclude that the evidence justifying the failure to
appoint Barnard as well as the non appointment
of either of the two
recommended black candidates was minimal and that the failure to
appoint either of the two black candidates
could not be said to be a
fair and appropriate method of implementing the appellant’s
Employment Equity Plan. On this basis,
the Labour Court concluded
that, having decided not to implement the Employment Equity Plan by
appointing either of the two black
candidates, it was unfair in those
circumstances for the appellant not to appoint Barnard, who was the
“best and preferred”
candidate and that this decision was
irrational. For this reason the Labour Court concluded that the
appellant had failed to discharge
the
onus
resting on it
regarding the fairness of its failure to appoint Barnard. In
addition, the Labour Court found that the there was no
evidence
showing that Barnard’s counterveiling right to equality was
taken into account nor that the National Commissioner
had considered
Barnard’s personal employment history which was found to be
important by the Divisional panel. The Labour
Court also found that
the failure to appoint Barnard was also unfair as service delivery
was compromised.
[16] The findings and
conclusions made by the Labour Court are supported by the Respondent
who asserts that we should not interfere
with the Labour Court’s
judgment and order as that the Labour Court properly dealt with the
issues it was confronted with.
Appellant’s case
[17] The appellant has
defended the National Commissioner’s decision not to promote
Barnard on the basis that the recommendation
for her appointment did
not address representivity. A further basis advanced in defending the
decision not to appoint her was that
the National Commissioner had
the sole prerogative not to fill the post which, it was reiterated,
was not critical to be filled.
The essence of the argument is that
the court had erred in finding that restitutionary measures had to
yield to Barnard’s
right to equality and dignity; that the
Court had failed to understand and appreciate that affirmative action
by its nature was
discriminatory and was intended to accord
preferential treatment to persons from designated groups; that the
Court employed individual
rights of equality and dignity to trump the
principle of affirmative action which had the effect of gutting in
contravention the
clear objects and import of affirmative action
per
se
; that the Court had been misdirected in failing to find that
the non appointment of Barnard was fair and consistent with the
objects
of the Employment Equity Act.
[18] The appellant
further argued that the Labour Court had failed to appreciate that
the appellant’s Employment Equity Plan
and National Instruction
1 of 2004 clearly decreed that the fact that a candidate obtained the
highest rating in an assessment
or was recommended for appointment
did not establish any right or legitimate expectation on the part of
that candidate to be appointed
to any advertised post, that white
males and females were, in any event, over represented in level 9,
where the advertised post
was located, and that the National
Commissioner had in fact withdrawn the advertised post, subsequent to
rejecting the Divisional
panel’s recommendation to appoint
Barnard.
The amicus
[19] The Police and
Prisons Civil Rights Union (POPCRU) intervened as
Amicus Curiae
and also advanced a number of submissions. The essence of the
argument advanced by the
amicus
is that the right to equal
protection and benefit of the law is limited by restitutionary
measures such as those aimed at addressing
equitable representation
in the workplace. The argument in this regard is that the Employment
Equity Act is a measure ‘by
which the right to equality is
justifiably limited with a view to addressing the effects of unfair
discrimination of the recent
apartheid the past’; that the
Employment Equity Act, through the Employment Equity Plan, is a
measure to achieve equality
in the workplace by ensuring equitable
representation of designated groups in all occupational categories
and levels in the appellant’s
workplace. The
amicus
further argued that it was clearly inconceivable to suggest, as the
Labour Court did, that an individual’s right to equality
supersedes the implementation of constitutionally conceived measures
such as an Employment Equity Plan.
Evaluation
[20] Although extensive
argument was also advanced by the parties in relation to affirmative
action, the matter has, in my view,
little to do with the legitimacy
of affirmative action, but more with the implementation of such a
programme in circumstances where
persons from non designated groups
are adversely affected thereby. The issue, in other words, is whether
the implementation of
equity orientated measures should be stifled in
the event that such implementation will adversely affect persons from
non designated
groups. This was in essence the overriding conclusion
of the Labour Court.
[21] I consider it proper
to first devote attention to the finding made by the Labour Court
that the failure to appoint Barnard
amounted to unfair
discrimination. In the usual sense, an act of unfair discrimination
presupposes the preference of one person
over another(s) and which is
unfair. In
Harksen
v Lane NO and Others,
5
the Constitutional Court,
set out the test for determining whether differentiation amounts to
unfair discrimination:
‘
[
u]nder
section 8(2) [now section 9(2) of the Constitution] requires a two
stage analysis. Firstly, the question arises whether the
differentiation amount to “discrimination” and if it
does, whether secondly, it amounts to “unfair discrimination”.
It is as well to keep these two stages of the enquiry separate. That
there can be instances of discrimination which do not amount
to
unfair discrimination is evident from the fact that even in cases of
discrimination on the grounds that are defined in section
8(2) which
by virtue of section 8(4) are presumed to constitute unfair
discrimination, it is possible to rebut the presumption
and establish
that the discrimination is not unfair.’ [Footnote omitted]
[22] This statement
illustrates the point I have already made that when one talks of
discrimination; that is one is in fact, alleging
that a
differentiation of some sorts between and/amongst people has taken
place. On the facts of the case before us, there is no
evidence of
such differentiation. We are here dealing with a matter where no
action by way of appointment took place, meaning that
no overt
differentiation occurred. The discriminatory conduct accepted by the
Labour Court is not the conventional type in the
Harksen
sense, i.e. of preferring someone over another(s). It is the
omission,
per se
, to appoint Barnard on the basis that she is
a white person. It is not necessary to decide this particular issue
and I express
no firm view either way. However, for purposes of this
matter I am prepared to accept that it is possible to discriminate by
failing
to appoint a person where preference or differentiation is
not at issue. I consider that the important issue is to determine if
such discrimination was unfair within the contemplation of section 6
of the Employment Equity Act as found by the Labour Court.
[23] The Labour Court was
driven to this conclusion on the basis of its reasoning that it was
Barnard’s race that dictated
the failure to appoint her which,
in the court’s view violated the provisions of the Employment
Equity Act. It is opportune
to now consider the central logic of the
Labour Court’s reasoning regarding the relationship between
individual rights to
equality and the implementation of employment
equity orientated measures. It is apparent from the reasoning of the
Labour Court
that the court adopted a two pronged approach to the
issue. In the first place the court’s attitude is that the
implementation
of employment equity measures must yield to an
individual’s right to equality and dignity where such
individual is adversely
affected by the implementation of such
measures. In the second place the Labour Court espoused the approach
that any decision based
on employment equity legislation and/or plans
must be rational and fair especially where such implementation
affects others adversely.
This is essentially the same argument
though posited differently, the essence of which is that the right to
equality supersedes
other considerations such as, in this case, the
implementation of employment equity orientated measures.
[24] Any debate about the
right to equality and the implementation of restitutionary measures
is bound to achieve very little, if
anything, without a contextual
consideration of that right and the need for restitution. It is one
thing to restate the provisions
of the Constitution and other related
legislation on the topic such as the Employment Equity Act, and quite
another to give meaning
to that language. The facts of this case
illustrate how easy we can miss the point of why our Constitution
enshrines the right
to equitable treatment yet sanctions inequitable
conduct. Section 6(2) of the Employment Equity Act decrees this as
follows: ‘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.’
The
Harksen
test alluded to above is also clear that there are
justifiable instances of discrimination under the Constitution.
[25] The contextual
importance in this case is the reality with which the appellant was
confronted as to how the designated and
non designated groups were
represented in its workforce. In this regard it is common cause that
white employees were overrepresented
in level 9. It is also common
cause that the appellant’s Employment Equity Plan was cognisant
of this factual dynamic and
made specific provision for the creation
of posts calling for the appointment of persons from designated
groups i.e blacks to achieve
equitable representation
demographically. Contextually therefore the reality in the
appellant’s workforce required corrective
intervention as
decreed in the Constitution. The appellant had adopted an Employment
Equity Plan to achieve this. With this contextual
understanding, one
must therefore interrogate the interview and divisional panels’
recommendation that Barnard be appointed
in full awareness of the
fact that she was a white person yet the Employment Equity Plan
called for appropriate representivity.
It is this recommendation, as
already pointed out, that, though rejected by the appellant, found
favour with the Labour Court on
the basis of its principle that
Barnard’s right to equality, coupled with the adverse effect of
not appointing her, demanded
that she be appointed.
[26] It is misconstrued,
in my view, to render the implementation of restitutionary measures
subject to the right of an individual’s
right to equality. This
point was ably advanced by counsel for the appellant and the
amicus
.
A contrary approach would, in my view, defeat the very purpose of
having restitutionary measures in the first place, as such
implementation will always fall short, due to the reality that there
will always be adverse effects on persons from non designated
groups.
The relegation of restitutionary measures on the basis laid down by
the Labour Court cannot be countenanced as I will show
shortly.
[27] The essence of
restitutionary measures is to guarantee the right to equality for the
reason that, without such measures, the
achievement of equitable
treatment will continue to elude us as a society. The Labour Court
(Waglay J as he then was) commented,
in
Jacobus
J P Harmse v City of Cape Town,
6
that the implementation
of employment equity orientated measures is a duty placed upon
designated employers by the Employment Equity
Act which also provides
them with affirmative action as a defence against claims of unfair
discrimination. Commenting on that decision,
Prof Carole Cooper
7
states that employment
orientated measures ‘do not amount to an exception to equality
but are integral to its achievement’
which is in essence
‘substantive equality’.
8
[28] The statement by our
Constitutional Court in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others.
9
illustrates this
eloquently:
‘
[t]he
commitment to achieving equality and remedying the consequences of
past discrimination is immediately apparent in section
9(2) of the
Constitution. That provision makes it clear that under our
Constitution “[e]quality includes the full and equal
enjoyment
of all rights and freedoms”. And more importantly for present
purposes, it permits “legislative and other
measures designed
to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination”. These
measures may be
taken “[t]o promote the achievement of equality”.
But transformation is a process. There
are profound difficulties that will be confronted in giving effect to
the constitutional
commitment of achieving equality. We must not
underestimate them. The measures that bring about transformation will
in equitably
after some members of the society adversely,
particularly those coming from the previously advantaged communities.
It may well
be that other considerations may have to yield in favour
of achieving the goals we fashioned for ourselves in the
Constitution.
What is required, though, is that the process of
transformation must be carried out in accordance with the
Constitution.’
[Footnote omitted]
[29] The point is aptly
driven home in another Constitutional Court decision,
Minister
of finance and Another v Van Heerden
,
10
that:
‘
[A]
comprehensive understanding of the Constitution's conception of
equality requires a harmonious reading of the provisions of
section
9. Section 9(1) proclaims that everyone is equal before the law and
have the right to equal protection and benefit of the
law.... However
section 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....
Equality before the law protection in
section 9(1) and measures to promote equality in section 9(2) are
both necessary and mutually
reinforcing but may sometimes serve
distinguishable purposes... However, what is clear is that our
Constitution, and in particular
section 9 thereof, read as a whole,
embraces for good reason a substantive conception of equality
inclusive of measures to redress
existing inequality. Absent a
positive commitment progressively to eradicate socially constructed
barriers to equality and to root
out systematic or institutionalised
under-privilege, the constitutional promise of equality before the
law and its equal protection
and benefit must, in the context of our
country, ring hollow.’
[30] On the basis of this
discussion, it is clear that the Labour Court erred in treating the
implementation of restitutionary measures
as subject to the
individual conception of a right to equality. This is more so as this
approach promotes the interests of persons
from non designated
categories to continue enjoying an unfair advantage which they had
enjoyed under apartheid. Treating restitutionary
measures in this
manner is surely bound to stifle legitimate constitutional objectives
and result in the perpetuation of inequitable
representation in the
workplace.
[31] The Employment
Equity Act, being legislation enacted to further the objectives of
section 9 of the Constitution, was conceived
in recognition of the
need to take restitutionary action and measures as a means of
addressing the adverse effects of apartheid
based discriminatory
practices in the employment sphere. There is recognition in the
preamble to the Employment Equity Act that
‘
as a result
of apartheid and other discriminatory laws and practices, there are
disparities in employment, occupation and income
within the national
labour market; and that those disparities create such pronounced
disadvantages for certain categories of people
that they cannot be
redressed simply by repealing discriminatory laws.’
In addition the purpose
of the Act is clear, as it seeks to
‘
[
A]chieve
equity in the workplace by (a) promoting equal opportunity and fair
treatment in employment through the elimination of
unfair
discrimination; and (b) implementing affirmative action measures to
redress the disadvantages in employment experienced
by designated
groups, in order to ensure their equitable representation in all
occupational categories and levels in the workforce’
.
11
[32] The Employment
Equity Act in fact reiterates the language of section 9 of the
Constitution in section 6 (1) and (2) cited earlier.
Furthermore the
Employment Equity Act makes provision for the adoption of Employment
Equity Plans, as the appellant did, as a means
of achieving the
objective of equitable representivity in the workplace. In this
regard Section 20 provides:
‘
(1) A
designated employer must prepare and implement an employment equity
plan which will achieve reasonable progress towards employment
equity
in that employer's workforce. (2) An employment equity plan prepared
in terms of subsection (1) must state – (a) the
objectives to
be achieved for each year of the plan; (b) the affirmative action
measures to be implemented as required by section
15(2); (c) where
underrepresentation of people from designated groups has been
identified by the analysis, the numerical goals
to achieve the
equitable representation of suitably qualified people from designated
groups within each occupational category and
level in the workforce,
the timetable within which this is to be achieved, and the strategies
intended to achieve those goals;
(d) the timetable for each year of
the plan for the achievement of goals and objectives other than
numerical goals; (e) the duration
of the plan, which may not be
shorter than one year or longer than five years; (f) the procedures
that will be used to monitor
and evaluate the implementation of the
plan and whether reasonable progress is being made towards
implementing employment equity;
(g) the internal procedures to
resolve any dispute about the interpretation or implementation of the
plan; (h) the persons in the
workforce, including senior managers,
responsible for monitoring and implementing the plan; and (i) any
other prescribed matter.
(3) For purposes of this Act, a person may
be suitably qualified for a job as a result of any one of, or any
combination of that
person's (a) formal qualifications; (b) prior
learning; (c) relevant experience; or (d) capacity to acquire, within
a reasonable
time, the ability to do the job. (4) When determining
whether a person is suitably qualified for a job, an employer must-
(a) review
all the factors listed in subsection (3); and (b)
determine whether that person has the ability to do the job in terms
of any one
of, or any combination of those factors. (5) In making a
determination under subsection (4), an employer may not unfairly
discriminate
against a person solely on the grounds of that person's
lack of relevant experience. (6) An employment equity plan may
contain
any other measures that are consistent with the purposes of
this Act.’
[33]
The
essence of Section 20 is that
a designated
employer must develop and adopt an Employment Equity Plan that
focuses on its workplace. Importantly the section gives
a designated
employer the power to use its Employment Equity Plan to adopt
recruitment measures that seek to bring equity in the
ranks of its
employees and to redress the under representivity of certain
categories of employees in its workplace. The appellant
is such a
designated employer and it had, before the onset of this matter,
adopted an Employment Equity Plan which it applied when
filling
vacancies thereafter. The advertised post at the centre of this
dispute is one such vacancy. The appellant’s Employment
Equity
Plan was, before its adoption, the subject of consultations in the
appellant’s workplace. It is correct that Solidarity
did not
participate in the consultations and preparation of the appellant’s
Employment Equity Plan as it was not sufficiently
representative in
the appellants’ workplace but POPCRU, the
amicus
in this appeal, was involved.
[34] An Employment Equity
Plan is equally a measure, like the Employment Equity Act, as
contemplated in section 9(2) of the Constitution.
It is therefore a
constitutionally mandated tool in a designated employer’s hands
to ensure compliance with the injunction
to ensure and achieve
equitable employment practices and representivity.
[35] The Foreword to the
appellant’s Employment Equity Plan begins with the statement –
‘
The
Employment Equity Act, act no 55 of 1998, promotes equal opportunity
and fair treatment in employment through the elimination
of unfair
discrimination in any policy or practice in the workplace, and
ensures the implementation of Affirmative Action measures
to redress
disadvantages experienced by designated groups to ensure their
equitable representation in all occupational categories
and levels.’
[36] The plan binds all
employees of the appellant as it was adopted as a collective
agreement
12
under the auspices of the
Safety and Security Sectoral Bargaining Council. In fact, the plan
has never been subjected to any legal
challenge. Solidarity in
particular had not taken issue with this Employment Equity Plan at
any stage prior to or during these
proceedings. Some of the important
contents of the plan relate to the setting of numerical goals for up
to five years. In this
five-year period, the plan’s objective
was that representation at all categories and levels should be in
line with the national
demographic.
[37] It is important to
also note that in the Employment Equity Plan, the numerical goals for
level 9 of the National Evaluation
Services Section, where the
advertised post was located, was that by the end of 2006, there
should be 10 African males and six
African females at that level and
one white male and one white female. Furthermore, the plan made
provision that in order to achieve
these numerical goals, eight and
six level 9 posts were to be made available for the appointment
and/or promotion of African males
and black candidates respectively.
Notably no posts were made available for the promotion/appointment of
white candidates. Rigid
or not, these numerical targets represent a
rational programme aimed at achieving the required demographic
representivity
status
quo
required
by the Employment Equity Plan.
[38] The over
representivity of white males and females is itself a powerful
demonstration of the insidious consequences of our
unhappy past.
White people were advantaged over other races especially in the
public service. This advantage was perpetuated by
the transfer of
skills, some critical, to the same white race to the exclusion of
others, especially blacks. The over representivity
of whites in level
9 is a stark reminder of our past and indeed the present and yet
another wake up call to decisively break from
these practices. These
are practices that can be effectively broken by embracing the
restitutionary spirit of the Constitution.
[39] It must also be
pointed out that the role of Employment Equity Plans is also to
ensure that decisions as to who is to be appointed
in the context of
affirmative action are not arbitrary or haphazard and do not occasion
unfairness. The Supreme Court of Appeal,
in
Gordon
v Department of Health: KZN
13
stated that any
appointment made on the basis of affirmative action had to be in
terms of a plan to avoid such arbitrariness. The
application of such
plans therefore cannot be relegated as suggested by the Labour court.
[40] National Instruction
1 of 2004 must also be brought into this discussion. This is an
instruction issued by the National Commissioner
to address the issue
of representivity in the recruitment practices of the appellant. That
instruction is a regulation issued by
the appellant to regulate its
recruitment practices with particular emphasis on representivity in
its workplace. Its express purpose
is ‘to regulate the
promotion process (including fast track promotions) within the
defined career paths of employees up to
salary level 12’. In
terms of this regulation, the fact that a candidate obtains the
highest rating and is recommended for
promotion does not establish
any right to be promoted. Furthermore, this regulation is clear that
the National Commissioner is
under no obligation to fill an
advertised post and that he may, in his discretion either direct that
a post be re-advertised or
promote a candidate from the preference
list other than the recommended candidate. Additionally, the
selection of a candidate must
be based among other things, upon
suitability and employment equity considerations that are in line
with the appellant’s
Employment Equity Plan. Clearly the
National Commissioner also had in mind this policy when he decided
not to approve the recommendation
to appoint Barnard.
[41] It remains to
consider the Labour Court’s conclusions that the failure to
appoint Barnard was irrational and compromised
service delivery,
based on its view that by failing to appoint either of the two black
candidates, the National Commissioner had
failed to implement the
Employment Equity Plan. In this regard, the Labour Court agreed with
the interview and divisional panels’
statement that Barnard's
promotion to level 9 would enhance representivity efforts in level 8.
Of course, it is strange that the
National Commissioner did not
appoint either of the two black candidates who were by all accounts
appointable. In my view this
failure owes much to the National
commissioner simply focussing his mind on the recommendation to
appoint Barnard. Clearly he was
at liberty to appoint either of the
black candidates, both of whom had passed the assessment with high
ratings. This however cannot,
on any conceivable basis, be regarded
as a failure to implement the Employment Equity Plan.
[42] Furthermore, the
point must be that, on the facts before us, the appointment of
Barnard would not have advanced the quest for
representivity in the
appellant’s workforce in level 9. It is also fanciful, to say
the least, that her appointment in level
9 would have enhanced
representivity in level 8. This would have aggravated the over
representivity of white employees in level
9 and would have
represented a step backwards and in direct violation of a clear
constitutional objective. On the other hand, failing
to appoint
either of the black candidates does not translate into a
justification of Barnard’s claim, as a white female to
be so
appointed. As I point out above, appointing her would fly in the face
of the employment equity orientated measures applicable
in the
appellant’s environment and would have aggravated the
overrepresentation of whites in level 9. In fact, the black
candidates had an unquestionable claim to be appointed over Barnard
in keeping with the Employment Equity Plan and she has readily
conceded this point. Discriminating against Barnard in the
circumstances of this case was clearly justifiable.
[43] National Instruction
1 of 2004 provides another basis pointing to what the National
Commissioner should have done in this matter.
Section 5 (7) states
that the National Commissioner is under no obligation to fill an
advertised post. Section 13 (7) further states
that, if the National
Commissioner does not approve the promotion of a recommended
candidate, he or she is at liberty, if he deems
it necessary, to
promote another candidate of his choice from the list of recommended
candidates submitted by the panel or direct
that the post be
re-advertised. It is clear from this provision that the National
Commissioner has a discretion regarding what
to do with the
recommendation that came to him. In
SA
Police Service v Zandberg and Others,
14
the Divisional
Commissioner overlooked the appointment of a recommended candidate on
the basis that the appointment did not address
representivity and
appointed a second best candidate from a designated group, the court
held that the panel had the power merely
to make recommendations.
Further, the power to appoint was vested in the divisional
commissioner, who was entitled to deviate from
the panel’s
recommendation. His deviation in this instance was found to be
rational and justifiable. This view was confirmed
by the Labour
Appeal Court when this decision was appealed against.
15
[44] I should also point
out that the statement advanced by the Labour Court that there must
be a rational connection between the
equity plan and its objectives
was not raised as an issue requiring determination. That issue arises
if there is a legal challenge
to the plan which was not before this
Court. A reading, however, of the appellant’s Employment Equity
Plan demonstrates that
the plan was crafted with due consideration of
rationality and reasonableness. It is a plan that was drafted with
due regard to
the appellant’s workplace dynamics and identifies
the gaps requiring attention as well as providing for a programme of
action
that is time bound regarding the closing of the gaps
identified. The issue rather is whether there is a rational
connection between
the transformational goal of promoting the
achievement of equality by ensuring equitable representation of
designated groups in
all occupational categories and levels in the
appellant’s workforce on the one hand and the means used to
achieve that goal
on the other hand.
[45] It cannot be argued
on the facts of this matter that the appellant’s Employment
Equity Plan seeks the appointment of
only black employees
irrespective of other criteria. One of the criteria set out in the
plan is the suitability of candidates.
That to me suggests that
should a black candidate be unsuitable that candidate will not be
appointed. This is also defined in National
Instruction 1. Clearly,
as was aptly argued by counsel for the
amicus,
the Employment
Equity Plan does not sanction mediocrity or incompetence. Manifestly
this was not the case with the two black candidates
in this case.
[46] The Labour Court’s
conclusion that the failure to appoint Barnard compromised service
delivery is also misconstrued.
The National Commissioner is the
accounting officer of the appellant and is the only person who is
answerable regarding service
delivery matters. It is not open to a
court to ‘second guess’ a decision that not filling a
post will or will not compromise
service delivery. In this case the
National Commissioner, as the responsible accounting officer, decided
not to fill the advertised
post which he subsequently withdrew. In
any event, I am of the view that the National Commissioner was the
only person well-placed
to determine if service delivery would be
compromised by the failure to fill the post and his decision that
this would not be so
is unassailable. Frankly speaking that is his
prerogative and should he be incorrect in so deciding and imperil
service delivery
as a result, he is answerable to his accounting
authority, being the Minister and ultimately to Parliament. The
National Commissioner
is similarly answerable in that manner should
he fail to achieve the targets set out in the Employment Equity Plan.
Our role as
courts is to determine if any conduct, alleged to be
based on an Employment Equity Plan, for instance, is justifiable in
terms
of that plan such as we have here. It is not open to a court to
dictate to the National Commissioner that he is compromising service
delivery and should fill a post.
Conclusion
[47] The Labour Court
clearly misconstrued the purpose of the employment equity orientated
measures by decreeing that their implementation
was subject to an
individual's right to equality and dignity. This misconception is
highlighted in this case, where the individual
concerned is a white
woman, whose group was overrepresented in level 9, and who was
clearly advantaged by past unfair discriminatory
laws. Importantly
she did not hope to be appointed as there were two appointable black
candidates from designated groups. She was
also aware that black
candidates were targeted for the post for which she applied and which
target was within the conscripts of
National Instruction 1 of 2004.
[48] Insofar as the issue
of costs in concerned, it is my view that the matter raised important
questions regarding our Constitution
as well as the applicability of
employment equity orientated measures. For this reason, it appears
justified to make no order as
to costs.
[49] In the
circumstances, it appears eminently justifiable to uphold the appeal
and the following order is granted:
1 The appeal is upheld
2 The order of the Labour
Court dated 24 February 2010 is set aside and in its stead the
following order is granted
‘
1. The
application is dismissed;
2. There is no order as to costs.’
3 There is no order as to
costs.
_______________
Mlambo JP
Davis JA and Jappie JA
concur in the judgment of Mlambo JP
APPEARANCES:
FOR THE APPELLANT:
Messeres N Cassim SC, W Mokhari SC and Barnard Lecoge
Instructed by the State
Attorney Johannesburg
FOR THE RESPONDENT: Mr JG
Grogan
Instructed by Serfontein,
Viljoen and Swart Attorneys
FOR THE AMICUS: Mr
Ngalwana
Instructed by Grosskopf
Attorneys
1
Act
no 108of 1996.
2
Act
no 55 of 1998.
3
National
Commissioner Jackie Selebi.
4
Section
50(1)(a) of the EEA.
5
[1997] ZACC 12
;
1998
(1) SA 300
at para 45.
6
(2003)
24 ILJ
1130 LC.
7
Cooper
C The Boundaries of the Employment Equity 2003 vol 24
ILJ
1307-1314.
8
Cooper
at 1308.
9
[2004] ZACC 15
;
2004
(7) BCLR 687
at paras 75-76.
10
[2004]
12 BLLR at 1181 (CC) at paras 28 and 31.
11
Section
2 of the Employment Equity Act.
12
In
terms of Section 23 of the LRA.
13
[2008] ZASCA 99
;
2008
(6) SA 522
(SCA) at para 23.
14
(2010)
31 ILJ 1230 (LC) at 1237 A-C.
15
Unreported
judgement DA18/2010.