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[2015] ZALAC 6
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Solidarity and Others v Department of Correctional Services and Others (CA23/13) [2015] ZALAC 6; 2015 (4) SA 277 (LAC); [2015] 7 BLLR 649 (LAC); (2015) 36 ILJ 1848 (LAC) (10 April 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Case no: CA23/13
DATE: 10 APRIL
2015
Reportable
In the matter
between:
SOLIDARITY
...................................................................................................................
First
Appellant
P J
DAVIDS
...................................................................................................................
Second
Appellant
C F
FEBRUARY
.............................................................................................................
Third
Appellant
A J
JONKERS
..............................................................................................................
Fourth
Appellant
L J
FORTUIN
...................................................................................................................
Fifth
Appellant
G M
BAARTMAN
...........................................................................................................
Sixth
Appellant
D S
MERKEUR
..........................................................................................................
Seventh
Appellant
T S
ABRAHAMS
.............................................................................................................
Eight
Appellant
D R
JORDAAN
...............................................................................................................
Ninth
Appellant
J J
KOTZE
......................................................................................................................
Tenth
Appellant
D M A
WEHR
............................................................................................................
Eleventh
Appellant
And
DEPARTMENT OF
CORRECTIONAL
SERVICES
....................................................................................................................
First
Respondent
THE MINISTER OF
CORRECTIONAL
SERVICES
................................................................................................................
Second
Respondent
THE NATIONAL
COMMISSION OF THE DEPARTMENT
OF CORRECTIONAL
SERVICES
..........................................................................
Third
Respondent
THE MINISTER OF
LABOUR
..............................................................................
Fourth
Respondent
POLICE
AND PRISONS CIVIL RIGHTS UNION
AMICUS
CURIAE
Heard: 19
February 2015
Delivered: 10
April 2015
Coram: Waglay JP,
Davis JA
et
Mngqibisa-Thusi AJA
JUDGMENT
WAGLAY JP and
DAVIS JA
Introduction
[1]
This
case involves an enquiry into the constitutional and legal scope of
the implementation of positive measures designed to achieve
equality
through the medium of employment equity plans. The present dispute
follows hard on the heels of the recent decision in
South
African Police Services v Solidarity obo Barnard
[1]
(“Barnard”).
This judgment of the Constitutional Court notwithstanding, the law
relating to racial quotas and targets
and other mechanisms to achieve
representivity in the workplace remains uncertain. It is within this
context that the present dispute
must be located.
[2]
Second to eleventh appellants (individual
appellants) are represented by Solidarity, a trade union, which is
the first appellant.
The individual appellants applied for particular
posts in the organisation of first respondent, the Department of
Correctional
Services (‘DCS’). All these appellants, save
for fifth appellant, were unsuccessful in that they were not
appointed
to the positions for which they had applied. Subsequently,
they launched an unfair labour practice dispute on the basis that
third
respondent’s (the National Commissioner of the DCS)
failure to appoint or promote them constituted an unfair labour
practice
based on discrimination. In essence, they contended that
DCS’ employment equity plan for the period 2010 to 2014 (“the
plan”) constituted a contravention of the Employment Equity Act
55 of 1998 (“EEA”).
[3]
Appellants contend that the DCS acted
unlawfully by making appointments, transfers and promotions in terms
of the plan but in breach
of the EEA, as the plan required a rigid
application of quotas based on demographic representivity. In
appellants’ view,
the plan was both racist and sexist in its
utilisation of rigid quotas. They further contend that the plan took
no account of regional
demography.
[4]
It appeared to be common cause before the
court
a quo
that, as a result of the plan, the application of the individual
appellants for promotion had been declined, where otherwise their
applications might have been successful. Save for fourth appellant,
the remaining appellants had been recommended for employment
by the
relevant selection panel which had been constituted to conduct the
necessary interviews for the advertised posts.
[5]
In approaching the court
a
quo
, the individual appellants sought
relief by way of actual promotion in cases where the posts had not
been filled or alternatively
constructive promotion; that is to be
provided with pay and other benefits that they would have obtained
had their applications
been successful.
[6]
In the judgment of 18 October 2013,
Rabkin-Naicker J ordered the DCS to take immediate steps to ensure
that both national and regional
demographics be taken into account in
respect of members of designated groups when setting equity targets
at all occupational levels
of its workforce but dismissed the balance
of the application for substantive relief which had been brought by
the appellants.
There was no order as to costs.
[7]
Pursuant to this finding, appellants have
appealed against the decision to the extent that the court
a
quo
refused appellants’ relief.
Respondents have filed a cross-appeal with regard to the finding that
the plan did not take account
of both national and regional
demographics.
[8]
It is apparent from the manner in which the
case was litigated before the court
a
quo
and argued on appeal that the
factual matrix is not the subject of any significant contest. The
issues for determination on appeal
depend, to a very large extent,
upon the interpretation of the appropriate legislation and the
application thereof to the plan.
For this reason, we turn to deal
first with the plan and then with the applicable law.
The DCS Plan
[9]
Since January 2000, DCS, through the
development and adoption of various employment equity plans, sought
to comply with its obligations
under the EEA. For the purposes of
this case, the most recent of these plans was one which was approved
and adopted on 7 September
2010 and continued to be in force until
December 2014.
[10]
This plan records that:
1.
significant progress has been made in the transformation of the
personnel profile of DCS including “marked progress and
employment of females within the department” and good progress
with “down management of Whites”.
2.
past recruitment and selection processes “were not always EE
Plan driven as some appointments that were made were not compliant
with the EE targets”.
[11]
Employing these recordals as the frame of
reference, the plan created “approved targets” by race
and gender for the
relevant period. It undertook a “gap
analysis” by reference to departmental units broken down into
salary levels. The
targets, informed by national demographics as
estimated in 2005, were as follows: African males and females 79.3%;
White males
and females 9.3%; Coloured males and females 8.8% and
Indian males and females 2.5%.
[12]
Paragraph 24 of the plan sets out its key
recommendations thus:
‘
At
salary levels 3-8, 60:40 (60% males and 40% females) should
remain’; At salary levels 9 and 10, 50:50 (50%
males and
50% females) is proposed; At salary levels 11 and 12, 50:50
(50% males and 50% females) is proposed; and At salary
levels 13 –
16; 50:50 (50% males and 50% females) as per Cabinet requirement.
’
[13]
The plan also provided for so called
“deviations”. In particular, it provided that Regional
Commissioner and Chief Deputy
Commissioners:
‘
must
ensure that deviations or any appointment that is against the EE Plan
is effected by the National Commissioner as the only
person mandated
to do so by the approved DCS AA Programme. All scarce skills
are considered where candidates from the underrepresented
group are
not available. Reasons for deviation request must thus be provided in
a memorandum format. Non-discriminatory operational
requirements/critical positions that are central to core business
delivery may be considered by the National Commissioner.’
[14]
Supporting this plan, although distinct
therefrom, is the DCS affirmative action plan designed to uplift
people previously disadvantaged
by discrimination. It is described as
“a separate tool within the DCS EE plan to assist in fast
tracking the desired achievements
for employment equity”. It
recognises that the country’s demographics are not reflected in
the workforce. It then states
“inequitable representation of
employers from designated groups (continues) to prevail within the
organisation”. It
records its objectives as including:
1.
Mainstreaming of employment equity into all policies, procedures,
practice systems and budget
2.
Improving and transforming service delivery through the realisation
of demographic changes at all levels, and
3.
Facilitation of robust human resource development.
Paragraph
2.2 provides a qualification:
‘
While
the programme targets employees from the designated groups, the
department acknowledges the need to accommodate required scarce
skill
areas, the need for mentoring and coaching and as such non-designated
employees would not be excluded.’
[15]
Paragraph 2.4 then provides:
‘
The
programme shall recognise that even among the designated groups,
varying levels of representivity do exist within the organisation,
e.g. Coloured males in relation to African males, White females in
relation to Coloured females and African females in general,
in-relation to the representation needs of the organisation as per
the DCS’ Employment Equity Plan.’
[16]
The program also identifies recruitment in
selection practices as a barrier when representatively is not
considered. Accordingly,
all recruitment practices are required to
comply with the DCS plan, specifically by ensuring that “shortlisting
processes
(are) driven by Employment Equity Targets”.
[17]
It then makes clear that “Directorate
Equity … be informed in advance of envisaged advertisements to
enable the directorate
to provide accurate targets to relevant areas
and responsible persons”.
[18]
Paragraph 10 of this program refers to
deviations which are available as “the Commissioner has the
prerogative to appoint
any candidate in accordance with the DCS plan
and is the only person who may deviate with valid documented reasons
that will stand
the test in the court of law”.
The approach of
the court
a quo
[19]
In the court
a
quo,
Rabkin-Naicker J made two
essential findings. She held that the equality protection in terms of
s9(1) of the Constitution of the
Republic of South Africa Act 108 of
1996 (“the Constitution”) and particularly the provisions
to promote equality as
set out in s9(2) of the Constitution “were
both necessary and mutually reinforcing”. These sections
promoted a substantive
conception of equality inclusive of measures
to address existing inequality. The court
a
quo
was not faced with an attack on the
constitutionality of the EEA but rejected the argument that the
restitutionary measures promoted
by the EEA and implemented by
respondents were discriminatory and thus stood to be set aside.
[20]
The learned judge then turned to deal with
the individual appellants, who are classified as Black persons in
terms of the EEA, but
are members of the Coloured community in the
Western Cape. Their case had been that they were unfairly
discriminated against by
virtue of the selection process followed by
the DCS. In the view of Rabkin-Naicker J, s42 of the EEA, “guides
the administrators
of the EEA on how to gauge compliance with it”.
In terms of this section, both regional and national demography had
to be
taken into account. While national demographics provide a
safeguard which recognises that there is an African majority in this
country who were most severely impacted by apartheid, regional
demography had also; to be considered and, in this case, the regional
demography of the Western Cape. As the policy of the DCS had taken no
cognisance of the regional demographics of the Western Cape,
the
selection and recruitment process amounted to discrimination which
was not protected by s6(2) EEA nor by s9(2) of the Constitution.
Accordingly, the plan was unfair.
The Appeal
[21]
In order to examine the merits of
appellants’ case, it is now necessary to turn to the relevant
law. It is evident from the
description of the central facts in this
case that the Constitution is central to the disposition of this
dispute; in particular
s9 thereof. It reads as follows:
‘
9.
Equality
1. Everyone is equal
before the law and has the right to equal to protection and benefit
of the law.
2. Equality includes
the full an 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.’
[22]
The
pivotal section in this dispute is s9(2). It received a luminous
treatment in
Minister
of Finance and Another v Van Heerden
(“
van
Heerden
”)
[2]
,
where Moseneke J (as he then was) said:
‘
When
a measure is challenged as violating the equality provision, its
defender may meet the claim by showing that the measure is
contemplated by s 9(2) in that it promotes the achievement of
equality and its designed to protect and advance persons
disadvantaged
by unfair discrimination. It seems to me that to
determine whether a measure falls within s 9(2) the enquiry is
threefold.
The first yardstick relates to whether the measure
targets persons or categories of persons who have been disadvantaged
by unfair
discrimination; the second is whether the measure is
designed to protect or advance such persons or categories of persons;
and
the third requirements is whether the measure promotes the
achievement of equality.’
[23]
This
approach to s9(2) flowed from the recognition by the Constitutional
Court of the need for “a credible and abiding process
of
reparation for past exclusion, disposition and indignity within the
discipline of our constitutional framework”
[3]
and further “a positive commitment progressively to eradicate
socially constructed barriers to equality and to root out systematic
or institutionalised – underprivilege”
[4]
.
Of critical importance to the foundations upon which this
interpretation of s9(2) was based was the observation that
“[r]emedial
measures are not a derogation from, but a
substantive and composite part of the equality protection envisaged
by the provisions
of s 9” and “differentiation aimed at
protecting or advancing persons disadvantaged by unfair
discrimination is warranted
provided the measures are shown to
conform to the internal test set by s 9 (2)”
[5]
.
[24]
In
a careful analysis of this decision, Professor Cathi Albertyn
(“
Adjudicating
Affirmative Action within the Normative Framework of Substantive
Equality in the
Employment Equity Act – an
Opportunity Missed?
South African Police Services v Solidarity obo Barnard 2015 SALJ (in
press)
)
describes four important indicators which flow from the
van
Heerden
judgment with regard to the standards and methods for evaluating both
the content and implementation of remedial measures. Firstly,
the
judgment suggests that the evaluation entails a proportional
assessment of purpose and impact including the various interests
affected by the measure or decision
[6]
.
Secondly, the mandated enquiry is a contextual one in which it is
incumbent to examine the issue holistically comprehending the
structures of advantage and disadvantage that underpin the measure
which has been taken
[7]
.
Thirdly, there is a need to appreciate the effect of the measure
taken in the context of the broader South African society. In
a
concurring judgment in
van
Heerden
,
Sachs J notes:
‘
The
overall effect of
s 9(2)
… is to anchor the equality provision
as a whole around the need to dismantle the structures of
disadvantage left behind
by centuries of legalised racial domination
and millennia of legally and socially structured patriarchal
subordination
[8]
.’
[See
also Shamima Gaibie “
The Constitutional Court decision in
Barnard: A sequel to the van Heerden Judgment”
2015 (36)
ILJ 80; and 2014 (35) ILJ 2655].
[25]
In seeking to achieve a balance between the
competing interests and principles that might emerge in any such an
enquiry,
s9(2)
mandates that the balance must be heavily weighted in
favour of opening up and extending opportunities for the
disadvantaged. In
this enquiry, the required approach is different
from that for evaluating unfair discrimination in terms of
s9(3).
In
short, in a
s9(3)
enquiry, individual impact, measured by the effect
of a measure on individual dignity is determinative, whereas in
s9(2)
, the goal of remedying group based disadvantage must be given
particular weight.
[26]
Apart from these provisions of the
Constitution, careful consideration must be given to the EEA, which
was the specific legislation
enacted to further the objectives of s9
of the Constitution and, in particular, s9(2) thereof. Section 2 of
the EEA reads thus:
‘
The
purpose of this Act is to achieve equity in the work place by-
(a) promoting equal
opportunity and fair treatment in employment through the eliminations
of unfair discrimination; and
(b) implementing
affirmative action measure 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.’
This
section needs to be read together with s6 which provides as follows:
‘
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).’
[27]
An examination of s2 of the EEA reveals
both a clear statement of purpose and further an express means by
which to achieve this
defined purpose. The purpose is to promote
equal opportunity and fair treatment in employment through the
elimination of unfair
discrimination. To ensure that equal
opportunity and fair treatment in employment takes place, given the
racist and sexist context
of this country’s history, the EEA
envisages that affirmative action measures must be implemented to
address the disadvantage
in employment which continues to be
experienced by designated groups. The purpose of the adopted measures
is to ensure equitable
representation in all occupational categories
and levels in the workforce. The definition of designated groups is
also reflective
of the country’s history and its ambition for
the development of a non-racist and non-sexists society, for the
definition
refers to Black people, without any distinction between
African, Coloured and Indian people, women and people with
disabilities.
[28]
Aware of a potential tension between an
equality entitlement of an individual and affirmative action measures
which are to be implemented,
s6(2) of the EEA expressly provides that
it is not unfair discrimination to take affirmative action measures
which are consistent
with s2 of the EEA.
[29]
Section 15 of the EEA entitled “Affirmative
Action Measures” sets out the requirements for these measures,
particularly
in s15 (2). Section 15(3) then provides that the
measures referred to in s 15(2)(d) (measures to ensure the equitable
representation
of suitable qualified people from designated groups in
all occupational categories and levels in the workforce) “include
preferential treatment and numerical goals but
exclude
quotas
.” (our emphasis)
[30]
These
provisions thus provide certain restrictions in respect of the
affirmative action measures which are legally permissible.
In
summary, persons appointed pursuant to affirmative action measures
must be suitably qualified. Secondly, the measure may include
preferential treatment and numerical goals but cannot include a
quota. The term quota is not defined, although these provisions
received the highest attention in
Barnard
,
The
Court in Barnard did not believe it necessary to define quota stating
that it was not the appropriate case to so do. Moseneke
ACJ did
however say with reference to s15(4) of the EEA that there was a
necessity for flexibility in the plan and “a designated
employer may not adopt an Employment Equity Policy or practice that
would establish an absolute barrier to the future or continued
employment or promotion of people who are not from the designated
groups”.
[9]
[31]
In his judgment, Moseneke ACJ provided
further guidance as to the meaning of “quota” when he
concluded that the appellant
in
Barnard
had not pursued the targets so rigidly as to justify the conclusion
that a quota was implemented. He proffered the following reasons
therefore:
‘
[o]verrepresentation
of white women (respondent was a white women) at salary level 9, was
indeed pronounced. That plainly meant
that the Police Service had not
pursued racial targets at the expense of other relevant
considerations. It had appointed white
female employees despite
equity targets…[t]he decision not to promote Ms Barnard had
not barred her from future promotions.’
[10]
[32]
Much of the dispute in
Barnard’s
case turned on whether the National Commissioner for Police had
exercised his discretion not to appoint Captain Barnard in a rational
and reasonable fashion and in accordance with Employment Equity
targets which had been envisaged in terms of s6(2) of the EEA.
In
other words,
Barnard’s
case concerned an inquiry into the exercise by the National
Commissioner of this discretion to refuse to appoint Captain Barnard,
the interviewing panel’s recommendations notwithstanding.
Although Moseneke ACJ eschewed a final determination of the standard
to be applied in the determination of the legality of an affirmative
action measure, he nodded fairly vigorously in the direction
of a
rationality test as is evident from the following passage.
‘
As
a bare minimum, the principle of legality would require that the
implementation of a legitimate restitution measure must be rationally
related to the terms and objects of the measure. It must be
applied to advance its legitimate purpose and nothing else.
Ordinarily, irrational conduct in implementing a lawful project
attracts unlawfulness. Therefore, implementation of corrective
measures must be rational. Although these are the minimum
requirements, it is not necessary to define the standard
finally’.
[11]
[33]
By
contrast, in a concurring judgment, Cameron, Froneman JJ and Majiedt
AJ insisted that the test to determine the legality of a
remedial
measure could not simply be one which examined whether the measure is
rationally related to the terms and objects of the
measure. This
test, in the learned judges’ view, was an excessively
deferential and hence inappropriate standard. In order
to determine
whether the National Commissioner’s decision not to appoint
Captain Barnard represented a fair implementation
of the relevant
equality plan, the court was required to examine both the objective
facts of the case and the reasons provided
by the National
Commissioner for his decision in order to determine whether this
specific implementation as well as a general formulation
of remedial
measures was fair
[12]
. The
standard of fairness to be applied was designed to focus upon the
refusal of the National Commissioner to appoint Captain
Barnard. As
the three judges said:
‘
We
must therefore determine whether the National Commissioner’s
decision not to appoint Ms Barnard was a fair implementation
of the
Plan. In doing so, we examine both the objective facts of the case
and the reasons the National Commissioner gave for his
decision.
’
[13]
After
evaluating the facts, they concluded:
‘
[t]he
facts show that the National Commissioner’s decision passes the
fairness standard. While we find this a close call,
what has proved
determinative to us is the pronounced over-representation of white
women at the salary level to which Ms Barnard
was applying.’
[14]
[34]
In
a separate concurring judgment, Van der Westhuizen J engaged in depth
with the relationship between restitutionary measures and
dignity. He
warned that “an atomistic approach to the individual’s
self-worth and identity is not appropriate”.
[15]
In
his view, “the Constitution is the foundation of a society that
takes seriously its duties to promote equality and respect
for the
worth of all. Because affirmative substantive equality measures
are one way in which these duties are given effect,
these measures
can enhance the dignity of individuals, even those who may be
adversely affected by them.”
[16]
[35]
Van
der Westhuizen J’s judgment makes it clear that in any exercise
which has to be undertaken to achieve a balance between
the purpose
of the restitutionary measure and the dignity of the individual
affected by the measure, account must be taken of whether
“the
measure undermines the goal of s 9 to promote the long term vision of
the society based on non-racialism and non-sexism
and must be alive
to shifting circumstances and the distribution of privilege and
underprivilege in society.”
[17]
Applying this approach, Van der Westhuizen J came to the same
conclusion as the other justices, namely that the decision
of the
National Commissioner not to appoint Captain Barnard was not
unlawful.
Appellants’
case
[36]
In attempting to apply this jurisprudence
to the present case, it is important to emphasise that, in this case,
appellants focussed
their attention on the plan itself. It was not
the decision to refuse to grant a deviation which was central to the
focus of the
case which appellants argued before the court
a
quo
or indeed in this Court. For this
reason, this case differs from the dispute which the Court was
obliged to resolve in
Barnard
.
[37]
Mr Brassey, who appeared together with Ms
Englebrecht on behalf of the appellants, focussed his submissions
almost entirely on the
argument that the DCS plan embodied a quota
system which had failed to take account of the individual
circumstances of the appellants.
Mr Brassey pointed out that, from
the very outset of the case before the court
a
quo,
appellants had emphasised that the
DCS plan made provision for appointments, transfers or promotions
within the department “by
reference to what we condemn as
quotas strictly reflecting the demographic representativeness of the
races and sexes throughout
South Africa”.
[38]
Mr Brassey submitted further that the
existence of this quota system was reflected in the fact that Whites
were to be preferred
for appointment at certain levels with African
and Coloured persons being overlooked, notwithstanding the sustained
history of
racial oppression under apartheid. By contrast, these
groups were surely to be the beneficiaries of restitutionary measures
under
the Constitution and the EEA. At other levels in the workforce,
the application of the plan meant that white males simply could
never
be promoted. In developing this argument, Mr Brassey submitted that
the court
a quo
had ignored appellants’ central objection to the DCS plan, that
it was based upon “race and gender norming” without
any
proper regard to questions of past disadvantage. The unfair
discrimination which was implicit in this approach was well
illustrated
when the circumstances of the individual appellants, who,
with one exception, formed part of the designated group in terms of
the
definition of the EEA, were taken into account.
[39]
In dealing with the provision contained in
the DCS plan which permitted deviation, Mr Brassey submitted that
this provision focussed
exclusively on the operational needs of the
DCS and took absolutely no account of the individual characteristics
of the particular
appellants, their history, their background and
thus the potential for their dignity to be infringed by way of a
decision which
effectively excluded them from any consideration for
appointment to the positions for which they had applied. In
amplification
of what Mr Brassey described as the “racial
barrier erected under the plan”, he noted that the barrier may
even operate
against Africans who were over-represented at level 3
and 5 within the DCS as they presently occupied 88% and 86% of the
provisions
respectively. The plan further recorded that at “level
3 only Whites and Indians should be appointed.” In Mr Brassey’s
view, these consequences of the plan brought the entire plan into war
with s15(3) of EEA which does not allow for the implementation
of
quotas in any remedial system.
Evaluation
of appellants’ argument
[40]
A quota is defined in the Concise Oxford
Dictionary, to the extent that it is relevant to this dispute, as “a
fixed number
of a group allowed to do something eg. immigrants
entering the country”.
[41]
Much of the debate before this Court turned
on the distinction between a quota, which in terms of the EEA, is an
impermissible mechanism,
and the permissible concept of numerical
targets. The key distinguishing factor between these two concepts
turns, it appears, on
the flexibility of the mechanism. An inflexible
set of numbers with which the designated employer is required to
comply, “come
what may” constitutes a quota and would
therefore be in breach of s15(3) of the EEA. By contrast, a plan
based on designated
groups filling specified percentages of the
workforce, but which allowed for deviations therefrom so that there
was no absolute
bar to present or continued employment or advancement
of people who do not fall within a designated group (s15(4)) would
pass legal
muster. Similarly, a plan which provides that the numbers
provided for in the plan constitute a goal to be achieved over a
defined
period would be congruent with the EEA. Of course, even in
this case, a target may be designed to achieve a defined goal in a
specified
period, after which, absent some room for flexibility, the
target could become a quota. If the plan is inflexible, then it must
be struck down. See in this connection
The
South African Restructuring and Insolvency Practitioners Association
v The Minister of Justice and Constitutional Development
and Others
2015 WCC (Case no. 4314/2014).
[42]
Mr Bonani, the Director for Equity and
Gender in the DCS, testified about the approach to deviations from
the plan. He confirmed
in his evidence, “a deviation takes
place where scarce skills from the underrepresented group are not
available. Non-discriminatory
operational requirements/critical
positions” that are central to the core business may then be
considered by the National
Commissioner.
[43]
When asked what he meant by “operational
requirements on a non-discriminatory basis” he testified as
follows:
‘
Operational
requirements include positions that are required by areas that have
challenges, hotspot areas. They are management areas
that were
referred to as hotspot areas. For an example three years back
Pollsmoor was one of the hotspots. So when we have
such
management areas and there are applications to fill positions, when
it comes to those we are not really strict when it comes
to equity.
If the regional commissioner says in this region this management area
is a hotspot for me and I believe that I
have a candidate that can do
the job for me, and that candidate may not necessarily be in line
with the EE Plan, I therefore request
that commissioner IDV it based
on operational requirement. That’s what we’re talking
about and we are saying we don’t
want those to be
discriminatory. We look at issues where heads of – or area
commissioners would ordinarily say I want to
appoint a head of the
centre and I don’t want a female, without really having
tangible reason why he can’t or she cannot
appoint a female to
head correctional centre. So that’s why we are saying they
should not be discriminatory.’
[44]
There was supporting evidence that the
third respondent had,
inter alia
,
approved of 13 deviations in the Western Cape during the period 2010
to 2013. Further evidence of this was recorded in paragraph
27 of the
respondents’ statement of defence of 9 June 2012.
[45]
These figures, uncontested as they were,
tend to indicate that there was not an absolute bar to promotion or
appointment and that
there had not been an inflexible adherence by
the DCS and, in particular, third respondent to the plan. Mr Brassey,
however, submitted
that in order for a deviation to pass legal
muster, regard had to be given to the individual applicant and, in
particular, the
effect on his or her self-worth, dignity and other
individual characteristics that may well be relevant in the
assessment of that
applicant’s case for appointment or
promotion.
[46]
The problem confronting the court is that
the appellants did not base their case specifically on the decision
to refuse deviation
in individual cases but focussed rather on the
plan itself, which it is alleged acted in a discriminatory fashion
towards the individual
appellants. It is thus difficult to know
precisely what considerations may or were taken into account by third
respondent in refusing
to deviate in these cases.
[47]
The following exchange did take place
between Mr Magagula the Regional Head: Corporate Services Western
Cape and Mr Brassey:
‘
Now
my understanding of what you are saying is that the decision as, the
decision of the commissioner is by reference to the needs
of the
Department? --- It is correct. Yes.
In other words, what
is termed here operational requirements of the Department? Is that
right? ---That is correct.
It is not by
reference to the excellence or otherwise of the individual candidate
or matters of compassion in relation to the individual
candidate or
the like? It is nothing to do with that? --- Obvious that will also
play a role for us to can submit a request to
the national
Commissioner.’
[48]
Mr Brassey’s insistence that a
deviation, which would render a plan legal, must be based on the
assessment of the individual
condition of an applicant raises a
central question in this case: that is the relationship between
individual and collective interests.
Expressed differently, if
substantive equality is to be achieved, what balance must be struck
between an individual claiming a
post as opposed to the need to
recognise the group as the central concept with which Apartheid
worked to undermine the dignity
of millions of South Africans which
remains central to the journey to be taken to move society away from
this sorry past.
[49]
Much
of this problem thus turns on the scope and meaning of substantive
equality which is to be employed in South African constitutional
jurisprudence. From early in its history, the Constitutional Court
considered dignity to be “a loadstar of equality”.
See LWH Ackerman
Human
Dignity. Loadstar for Equality in South Africa
(Juta,
2012); see also
Harksen
v Lane
[18]
.
But in
van
Heerden
,
the court began to develop a concept of equality which was not merely
an extension of dignity, but particularly its emphasis on
the
individual rather that it should be understood separately. In
van
Heerden
[19]
,
Moseneke J began the jurisprudential development of ensuring that
substantive equality was a self-standing right to be determined
within its own parameters and not as derivative from an
individualistic concept of dignity, which characterised early
Constitutional
Court jurisprudence. See for example,
President
of Republic of South Africa v Hugo
[20]
.
In particular, Moseneke J said the following:
‘
This
substantive notion of equality recognises that besides uneven race,
class and gender attributes of our society, there are other
levels
and forms of social differentiation and systematic under-privilege,
which still persists. The Constitution enjoins
us to dismantle
them and to prevent the creation of new patterns of disadvantage.
It is therefore incumbent on courts
to scrutinise in each equality
claim the situation of the complainants in society; their history and
vulnerability; the history,
nature and purpose of the discriminatory
practice and whether it ameliorates or adds to group disadvantage in
real life context,
in order to determine its fairness or otherwise in
the light of the values of our Constitution. In the assessment
of fairness
or otherwise a flexible but ‘situation sensitive
approach is indispensable because of shifting patters of hurtful
discrimination
and stereotypical response in our evolving democratic
society.’
[21]
A
thoughtful
attempt
to give dignity a less individualistic concept and hence its
potential contribution to the development of a coherent meaning
of
equality is well set out in an article by Henk Botha “
Equality
Plurality and Structural Power
”
[22]
.
[50]
Within the context of the EEA, it is clear
from a reading of s2 that the achievement of equality is sought
through the redress of
structural disadvantage, which in turn, will
create a more just and egalitarian social and economic order.
Individual self-worth
and thus the dignity of all who live in this
country can only be attained by removing the hierarchy of privilege
and power which
was sourced in a racist and sexist system. This is
manifestly the goal which s2(b) of the EEA seeks to achieve.
[51]
Because
Barnard
,
was concerned with the decision by the National Commissioner not to
appoint Captain Barnard to an advertised position, the court
in that
case did not have to examine the equity plan. It follows that the
test set out in
van
Heerden
,
was not strictly applicable to the determination thereof. But in this
case, the three criteria which the court in
van
Heerden
isolated in s9(2) to test restitutionary measures are directly
relevant. To recapitulate: the measure should target a category
of
beneficiaries disadvantaged by unfair discrimination. This is
reflected in the very nature of the DCS plan. Secondly, the measure
must be “designed to protect or to advance such persons or
categories of persons, and must be reasonably capable of obtaining
the desire outcome”. In terms of the plan, there is a provision
for deviations, which can be implemented in the event that
a rigid
implementation of a plan would compromise service delivery or where
it would not be possible to appoint suitably qualified
people from
designated groups to the relevant occupational categories and levels
in the workforce. If rationally implemented, these
deviations ensure
that the plan does not have to be implemented in a rigid fashion, in
which case the plan is reasonably capable
of obtaining its desired
outcome of a representative workforce which is suitably qualified and
achieves service delivery. Thirdly,
the court in
van
Heerden
,
supra
held that the measure must promote “the achievement of
equality”
[23]
. Hence,
the test is concerned to ensure that the plan not impose
disproportionate burdens or “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”.
[24]
It is
here that the rights of persons who are not part of the designated
category can be protected. That this protection must pass
through the
prism of the substantive nature of the right to equality makes this a
most difficult part of the enquiry.
[52]
It is clear from the testimony of Mr
Magabula and Mr Bonani that this was the objective which the DCS had
in mind when it developed
its plan to ensure substantive equality for
those who suffered the most egregious forms of discrimination under
apartheid. In light
of our observation regarding the third leg of the
enquiry, there is a further important consideration which adds weight
to the
respondents’ case; that is that the EEA must be read
through the prism of s9(2). Inevitably, on the reading we have given
to s9(2), weight is accorded in the balancing act to the position of
the individual appellants even though there cannot be a blanket
deference to a decision to promote disadvantaged groups. The EEA
however recognises a need for balance. In the first place, a person
appointed from a designated group must be suitably qualified for the
position. Secondly, where an individual applicant possess
scarce or
unique skills which are relevant to the organisational needs of the
designated employer, these must be taken into account;
hence the
prohibition against an absolute bar to employment. Thirdly, for
reasons which will become apparent presently, a consideration
of
regional demographics in terms of s42 of the EEA may well come to the
aid of categories of applicants who otherwise were unduly
burdened by
the implementation of the plan. Sachs J in
Van
Heerden
; stated as follows:
‘
Given
our historical circumstances and the massive inequalities that plague
our society, the balance when determining whether a
measure promotes
equality is fair will be heavily weighted in favour of opening up
opportunities for the disadvantaged. That is
what promoting equality
(s 9(2)) and fairness (s 9(3)) require.’
[25]
[53]
In summary, in working with the approach as
laid out in
van
Heerden
,
as well as the implicit content given thereto and portions of the
Barnard
judgment to which we have made reference, we are of the view that the
DCS plan as presently constituted passes the test required
in terms
of the EEA reading it together with the Constitution.
The category of
‘designated groups’
[54]
Apart
from the question of regional demographics, Mr Brassey also raised
the point that the effect of the implementation of the
plan by DCS
was “particularly perverse” because a barrier was created
which resulted in persons from designated groups
(all the individual
appellants save for second appellant) suffering discrimination. This
argument raises great difficulties in
that choices which are made may
well affect certain categories of designated persons adversely. Take
the case of White women who
form part of the designated group. It may
well be that a policy which is determined to address racial
inequality will consider
that Black persons within a designated group
should have a greater claim to appointment than White women. Absent
any other material
evidence, it would be difficult to argue that this
is impermissible. See
Motala
and Another v the University of Natal
[26]
where the Court was required to consider the competing claims of
Indian and African pupils.
[55]
Some
assistance in this painfully difficult task can be derived from the
Supreme Court of Canada in
Alberta
(Aboriginal Affairs and Northern Development) v Cunningham
[27]
(“Alberta”
)where
the Court considered s15(2) of the Canadian Charter of Rights and
Freedoms which permits inequalities which are associated
with
ameliorating programs aimed at helping the disadvantaged group. The
relevant passages from McLachlin CJ’s judgment reads
as
follows:
‘
If
these conditions are met, s 15(2) protects all distinctions drawn on
enumerated or analogous grounds that “serve and are
necessary
to” the ameliorative purpose:
Kapp
,
at para. 52. In this phrase, “necessary”
should not be understood as requiring proof that the exclusion
is
essential to realising the object of the ameliorative program.
What is required is that the impugned distinction in a
general sense
serves or advances the object of the program, thus supporting the
overall s 15 goal of substantive equality.
A purposive approach
to s 15(2) focussed on substantive equality suggests that
distinctions that might otherwise be claimed to
be discriminatory are
permitted, the extent that they go no further than is justified by
the object of the ameliorative program.
To be protected, the
distinction must in a real sense serve or advance the ameliorative
goal, consistent with s 15’s purpose
of promoting substantive
equality.
The fundamental
question is that: up to what point does s 15(2) protect against a
claim of discrimination? The tentative answer
suggested by
Kapp
,
as discussed above, is that the distinction must serve or advance the
ameliorative goal. This will not be the case, for instance,
if the
state irrational means to pursue its ameliorative goal. This
criterion may be refined and developed as different cases emerge.
But
for our purposes, it suffices.
If s 15(2) does not
protect the impugned distinction, the analysis returns to s 15(1) to
determine whether the distinction constitutes
substantive
discrimination by perpetuating disadvantage or prejudice or by
inappropriately stereotyping the excluded group.
If substantive
discrimination is established under s 15(1), the final question is
whether the government has shown it to be justified
under s 1 of the
Charter
.
Section 15(2),
understood in this way, permits governments to assist one group
without being paralyzed by the necessity to assist
all, and to tailor
programs in a way that will enhance the benefits they confer while
ensuring that the protection that s 15(2)
provides against the charge
of discrimination is not abused for purposes unrelated to an
ameliorative program’s object and
the goal of substantive
equality.’
Cross-Appeal
[56]
In redressing the agony of our dreadful
history, it is apparent that difficult choices have to be made. In
this, the
Alberta
decision is helpful. But whatever respect must be accorded to the
decision-maker in the evaluation of a plan designed to effect
restitution, a balance must be struck so as to promote the dignity of
all. This conclusion then leads to the question of the cross-appeal
and the importance of the regional demographic. The cross-appeal
turned on the decision of Rabkin-Naicker J that the recruitment
process as derived from the DCS plan had taken no cognisance
whatsoever of the regional demographics of the Western Cape. This
omission amounted to discrimination which was not protected by s6(2)
of the EEA. The respondents, and particularly Mr Ngalwana,
who
appeared with Ms Karachi on behalf of the
amicus
,
submitted that the relevant provision, s42 of the EEA had been
amended pursuant to the Employment Equity Amendment Act 47 of 2013.
Prior to this amendment, the Act, to the extent that it is relevant,
provided that in determining whether a designated employer
is
implementing employment equity in compliance with this Act, the
Director-General or any person or body applying this Act must
take
into account (the) demographic profile of the national and regional
economically active population (s 42 (a) (i)).
[57]
The 2013 Amendment Act replaced the “must”
with a “may”. Accordingly, it was argued by Mr Ngalwana
that
s42 no longer renders a consideration of regional demographic
peremptory for testing compliance with the EEA.
[58]
There are at least two responses to this
submission which we consider to be relevant. In the first place, the
Amendment Act only
came into force in August 2014 long after the plan
was implemented, the matter was heard before the court
a
quo
or judgment was delivered on 18
October 2013. Hence at the time the plan was implemented, respondents
had an obligation to take
account of regional demographics. Secondly,
even though the word “must” has been replaced by “‘may”,
there will be factual contexts in which it is difficult to envisage
how a plan could pass legal muster without a consideration
of
regional demographics. Within the Western Cape, where some 50% of the
economically active population come from the “Coloured”
group, an application of the present plan would result in significant
discrimination in that the plan only envisages that 8.8%
of the
workforce should come from the Coloured population. Similarly, in a
province where more than 79.3% of the population are
African, this
could result in a similar significant reduction in African employees
in the province, which plan would again manifestly
work to their
disadvantage and constitute a clear infringement on dignity to those
who were the very target of Apartheid’s
racist policies.
[59]
In summary, the respondents failed to take
account of the particular regional demographics of the Western Cape
which was a mandatory
requirement at the time that the plan was
conceived. The failure to do so could result in a large scale
reduction in the workforce
of members of the designated group, who
themselves had suffered egregious discrimination as a result of
Apartheid. Even if the
word “may” is employed in this
enquiry, it is our view that, given South African history, the
failure to take account
of the impact of regional demographics on the
nature and purpose of the plan adversely reduces the contribution of
restitution
towards substantive equality and hence the attempt to
achieve the effect goal of developing a non-racial and non-sexist
society.
This complete failure to examine the region in which the
plan is conceived, constitutes a sufficient legal obstacle against
the
plan being held to be in compliance with the EEA.
Remedy
[60]
In her judgment, Rabkin-Naicker J referred
to s50(2) of the EEA which provides thus:
‘
(2)
If the Labour Court decides that an employee has been unfairly
discriminated against, the Court may make any appropriate order
that
is just and equitable in the circumstances, including
(a) payment of
compensation by the employer to that employee;
(b) payment of
damages by the employer to that employee;
(c) an order
directing the employer to take steps to prevent the same unfair
discrimination or a similar practice occurring in the
future of other
employees.’
[61]
She then held that “the most
appropriate relief for the court to order in these circumstances is
one that will benefit all
employees of DCS in the Western Cape who
are Black employees of the DCS and members of the Coloured community
in the future.”
[62]
Mr Brassey submitted that this approach was
unacceptable in that persons whose rights had been violated were
entitled to an effective
remedy. He submitted further that the
individual appellants had suffered unfair discrimination and that
such discrimination provided
the basis for their non-appointment. The
court was in a position to order employment of the individual
appellants concerned or,
at the very least, to grant compensation in
recognition of the adverse effect of the unfair discrimination
committed by respondents.
Such a remedy would be consistent with
s50(2) of the EEA. Mr Brassey further submitted that the court
a
quo
did not explain how it could be
appropriate, just and equitable to ignore the plight of these
individuals nor was any justification
advanced for refusing to grant
relief pursuant to a finding of discrimination.
[63]
The finding of this Court is that the plan
fails because respondents in the formulation of the plan did not take
regional demographics
into account in the consideration of who falls
within a designated group and thus who should benefit from a
restitutionary plan.
On this finding there does not appear to be a
basis by which second appellant’s case can be upheld, he being
a White man,
in circumstances where his appointment was declined
because it resulted in a deviation of the DCS. It was certainly not
shown that
a consideration of regional demographics would have
affected second appellant. Accordingly, there is no case made out as
to why
he should obtain a remedy. Fourth appellant was not
recommended by the interviewing panel for the post. His case
therefore, is
distinct from those of the remaining appellants. Fifth
appellant was appointed to the post of Director Area Coordinator:
Corrections,
Pollsmoor Management Area from 1 July 2012 and therefore
falls outside of the need for an individual remedy.
[64]
The balance of the appellants however were
recommended for appointment. The question arises as to the
counterfactual: had regional
demographics been a mandatory factor to
be taken into account by third respondent at the time, would these
appellants have been
appointed or promoted?
[65]
In seeking to answer this question, it is
important again to have recourse to the case pleaded by appellants.
Admittedly, appellants
in their statement of case state:
‘
The
third respondent’s decision to refuse, whether pursuant to an
application for deviation or otherwise, to promote the individual
respondents to the aforesaid positions of posts is unreasonable,
irrational unlawful within the contemplation of paras (e) (iii),
(f)
(ii) (h) and/or (i) of s 6 of the Promotion of Administrative Justice
Act 3 of 2000 (‘PAJA’).
’
[66]
But it is in the foundation for their claim
that the real case as pleaded is to be found. Appellants state in
amplification of their
legal submission:
‘
The
DCS EE Plan engages upon social engineering based on naked race and
gender profiling, differentiates between members of the
designated
groups purely on the basis of their race, and sets targets that,
properly analysed, constitute nothing but a compendium
of absolute
quotas. So much is clear from the fact that the DCS EE Plan
states as its objective representation of races based
on the national
demographic and that fact that it employs a system of allocation of
positions on the basis of racial profiling.
’
Later
in their statement of claim they aver:
‘
When
examined for coherence upon its own terms (i.e that absolute targets
based on demographics are legitimate), the DCS EE Plan
is hopelessly
crude and arbitrary. No account is taken of regional
differences in racial demographics so that, for example,
the
representation of coloured people is made to depend on national
demographics despite the preponderance of such persons in the
Western
Cape. In the same vein, no account is taken of the incidence of
economically active people in the country.
In the
circumstances, the manner of implementation of the affirmative action
measures in question conforms neither to the latter
and the spirit of
the EEA not to s 195(1)(i) of (10) the Constitution. It places
absolute barriers for appointment to all
non-designated employees; it
effectively establishes a quota system; the targets which it has set
for itself do not comply with
the statutory and constitutional
obligation of achieving a workforce broadly representative, and/or
the relevant respondents clearly
fail to consider any of the factors
which needs to be taken into consideration in terms of section 42 of
the EEA.’
[67]
In his opening address to the court
a
quo,
Mr Brassey set out his case very
clearly. He argued that the plan’s:
‘
[p]rincipal
concern is with producing a profile of the Department that accurately
reflects the National racial distribution and
National gender
distribution of the population and we say that if there is one thing
that is outlawed by the Constitution and if
there is one thing that
is not sanctioned by the
Employment Equity Act it
is race norming of
this nature.
The second point
that we will say about the plan is that it set absolute thresholds
that must be surmounted and fails to mandate
a sensitive, nuanced and
thoughtful approach to who should and shouldn’t be appointed
when matters of race and gender are
given due weight in the process
of appointment. ‘
[68]
Turning to regional demographics, Mr
Brassey informed the court
a quo
:
‘
So
the regions proceed, not unsurprisingly, but completely illogically
on the supposition that every region is homogenous so far
as
demographic representation is concerned. Every region comprises
the same demography and the consequence is that a region
such as the
Western Cape which comprises a preponderance of Coloured people is
prejudiced though the target remained 8.8 percent.
Now that is
not a matter of Departmental bungling, it is a product as Your
Ladyship will discover when we place the evidence before
her of a
determination of the part of the Department to assert that the
National demographics shall be applied Regionally for were
it not so,
so there is one celebrated passage still to be celebrated in the
papers. Were it not so then the Regional distributions
of
Coloured people for instance in the Western Cape, Asian and Indian
people in Natal and so on which are said to be the consequence
of
apartheid policy would simply be perpetuated in future.’
[69]
Absent from any of these submissions, the
evidence led or the cross-examination is any guidance to whether
recourse to regional
demographics in the Western Cape would have
resulted in the individual applicants being appointed or promoted.
Unless the regional
demographics must be utilised in the form of a
quota, it is impossible, on the available evidence, to make such a
determination.
The attack on the deviation programme was based solely
on this submission articulated by Mr Brassey in his opening address:
‘
The
deviations have been treated in the same inflexible and insensitive
manner as the plan proceeds that unless there is a compelling
reasons
why special skills should be solicited and obtained, no deviation
should be granted.’
[70]
As indicated, we do not consider that a
deviation plan that focusses exclusively on organisational need and
the consequent assessment
of skills, experience and the ability of an
individual applicant to fulfil these defined needs renders such a
plan unconstitutional.
[71]
In summary, given the paucity of evidence
and the time that has lapsed between the central facts that gave rise
to this dispute
and this appeal, together with the fact that the
appellants did not focus their attention on the deviation decision in
sufficient
detail, this Court cannot grant a remedy of promotion. For
similar reasons compensation for non-promotion is inappropriate. The
issue of damages was neither canvassed nor pleaded. In light of the
lack of certainty as to what outcome would have resulted had
regional
demographics been taken into account, it would be inappropriate to
award damages.
[72]
We have carefully considered whether
further guidance should be given to respondents in the formulation of
a plan that takes regional
demographics into account. However, we are
hesitant to attempt a prescription. Manifestly, recourse to the
particular demography
of a region should not result in the
implementation of a quota. The animating idea behind these
considerations should not be to
freeze a pattern of regional
demography, which is invariably a product of the vicissitudes of
generation of racist rule. Hence,
in the construction of a non-racial
and non-sexist nation, the relationship between regional and national
demographics requires
nuance and flexibility. It is best left to the
respondents to develop an appropriate plan as opposed to a judicial
attempt at legislation.
[73]
For these reasons, therefore, the following
order is made:
1.
The appeal is dismissed.
2.
The cross-appeal is dismissed.
3.
There is no order as to costs.
Waglay
JP Davis JA
Mngqibisa-Thusi
AJA concurred with the judgment.
APPEARANCES
:
FOR
THE APPELLANTS
: Adv.MSM Brassey SC with
MJ Engelbrecht instructed by Serfontein Viljoen & Swart Attorneys
FOR
THE RESPONDENTS
: MTK Moerane SC; DB
Ntsebeza SC; BM Legoge and N Mbelle instructed by the State Attorney
FOR
THE AMICUS CURIAE
: V Ngalwana SC with F
Karachi instructed by Marais Muller Yekiso Inc.
[1]
2014(6)SA123 (CC)
[2]
2004 (6) SA 121 (CC)
[3]
Van
Heerden
at
para 25.
[4]
Van
Heerden
at
para 31.
[5]
Van
Heerden
at
para 32.
[6]
See paragraphs 45-52;53-56
[7]
At paragraph 44
[8]
At paragraph14
[9]
Barnard
at
para 42.
[10]
Barnard
at
paras 66-67.
[11]
Barnard
at
para 39.
[12]
Barnard
at paras 98-102
[13]
Barnard
at
para 102.
[14]
Barnard
at
para 123.
[15]
Barnard
at
para 174.
[16]
Barnard
at
para 175.
[17]
Barnard
at
para 148.
[18]
1998 (1) SA 1300
(CC) at para53
[19]
At paragraphs 26 and 27
[20]
1997 (4)SA 1 (CC)
[21]
Van
Heerden
at
para 27.
[22]
2009 (25) SAJHR 1
[23]
Van
Heerden at para 37
[24]
Van
Heerden
at para 44.
[25]
Van
Heerden
;
at para 152
[26]
1995 (3)BCLR 374 (D)
[27]
[2011] 2 SCR 670