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[2015] ZALAC 16
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South African Police Service v Public Service Association of South Africa and Others (DA01/2014) [2015] ZALAC 16; [2015] 8 BLLR 805 (LAC); (2015 36 ILJ 1828 (LAC) (24 April 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Case no:
DA01/2014
DATE: 24 APRIL
2015
Reportable
In the matter
between:
THE SOUTH AFRICAN
POLICE
SERVICE
.......................................................................
Appellant
And
THE PUBLIC
SERVICE ASSOCIATION OF
SOUTH
AFRICA
..........................................................................................................
First
Respondent
CAPTAIN
MUNSAMY
............................................................................................
Second
Respondent
THE MINISTER OF
SAFETY AND
SECURITY
..................................................................................................................
Third
Respondent
Heard: 17 March
2015
Delivered: 24
April 2015
Summary:
Affirmative action – employee substituted for appointment in
order to address representivity – employee referring
unfair
discrimination dispute – employee disputing the existence of
the employer’s equity plan – Labour Court
finding equity
plan non-existent and that no consultation took place for the
adoption of the plan - evidence showing that
extensive
consultation took place with organised labour and that employer
having equity plan – evidence also showing that
employer’s
equity plan addressing classes of people victims of past unfair
discrimination – employer equity plan seeking
to fulfil the
objectives as set out in
Barnard
and
Van Heerden –
appeal upheld with costs – Labour Court’s judgment
set aside and replaced with an order to the effect that the
application
is dismissed with costs.
Coram: Davis,
Ndlovu JJA and Hlophe AJA
JUDGMENT
DAVIS JA
Introduction
[1]
The Constitution of the Republic of South
Africa Act 108 of 1996 expressly mandates that restitutive or
affirmative action measures
are to be part of our constitutional
vision. Section 9(2) of the Constitution provides that “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.” This case
involves the implications of this constitutional guarantee.
[2]
Second respondent applied for three posts
at the level of superintendent in the organisation of appellant. Upon
being denied promotion,
he approached the court
a
quo
, contending that the decision to
deny him promotion was not in accordance with a legal defensible
employment equity plan. Accordingly,
the conduct of appellant
constituted unfair discrimination. Whitcher AJ (as she then was)
upheld this application and directed
the appellant to pay the amount
of R 333 421.00 to second respondent within two months of
delivery of her judgment. It is
against this decision that the
appellant has approached this Court on appeal.
Material facts
[3]
Second respondent is an employee in the
South African Police Service (SAPS). He applied for promotion
from captain to superintendent
in 2000 in respect of the following
three posts:
1.
Post 493 – SAPS Umlazi for the post of Superintendent,
Commander CSC.
2.
Post 459 – Area Commissioner Durban South, Superintendent Crime
Prevention.
3.
Post 463 – Area Commissioner Durban South, Superintendent
Registry and Records Head.
[4]
With regard to Post 493, second respondent
was ranked fourth out of four candidates that were shortlisted. The
successful candidate
Captain Gumbi scored 64.31 and second respondent
scored 59.28. The court
a quo
held that there could be no suggestion that Gumbi’s appointment
could be regarded as one based on race. Accordingly, it dismissed
the
application insofar as this post was concerned.
[5]
Turning to post 463, the court
a
quo
noted that second respondent was
not shortlisted for this post. The court
a
quo
thus dismissed this component of
second respondent’s case.
[6]
On appeal, it became clear that these two
posts were not central to the present dispute. The issue on appeal
concerned the failure
of appellant to appoint second respondent to
post 459. I turn to deal with the case that second respondent brought
before the court
a quo
,
with particular reference to post 459.
Second
respondent’s pleaded case
[7]
In his statement of case, second respondent
said the following:
‘
Applicant
was shortlisted by the Area Promotion Panel as the number 2 preferred
candidate and on Schedule 2 dated 2000-05-22 recommended
for post 459
due to the number 1 Dhanesar’s pending criminal matters.
However another attachment by the Area Panel
form [sic] some unknown
reason preferred Dhanesar as number 1 and applicant as number 2
candidates. The Provincial Promotion
Panel changed the rankings
in respect of Post 459 on 2000-05-30 and replaced Dhanesar with
applicant with reason being “
Munsamy
more suitable qualified
”.
The National
Commissioner Ref 8/1/1 dated 2000-07-19 indicated that the Province
could improve its representivity amongst:
-
Black males
-
Black females
-
White males
This despite the
fact that Ref 8/1/1 dated 2000-07-17 conceded that no EEP was in
effect and that the numerical goals were calculated
guesses. No
indication existed as to where in which business units under
Representivity existed in terms of the demographics
of the Province.
No Equity Plan existed at that time and applicants were evaluated in
terms of suitability. In PSSS
1444 Advocate Balton ruled on
similar facts where KD Singh was also preferred by the Provincial
Panel as the most suitable candidate
to the National office, and
amended after Ref 8/1/1 dated 2000-07-17 from the National
Commissioners office dictated otherwise
that there was no equity plan
in force at the time the panel sat. No proper plan existed that
Indian males should score less
than African males and be singled out.
Supra rendered the process unfair.’
[8]
In a supplementary pre-trial minute of 21
November 2011, the parties agreed that the issues that the court was
required to decide
were the following:
‘
Whether
the selection process was fair, objective, reasonable and
justifiable?
Whether the
Employment Equity Plan and/or the numerical goals / targets were
objective, reasonable, justifiable, and in line with
the provisions
of the Employment Equity Act?
Whether respondents’
affirmative action policy was fair, objective, reasonable and
justifiable and in line with the provisions
of the Employment Equity
Act.
Whether the
respondent unfairly discriminated against the applicant on the
grounds of race in failing to and/or refusing to appoint
the
applicant to any one of the disputed posts namely post numbers 493,
459 and 463.
[9]
The core answer to these questions which
was provided in the judgment of Whitcher AJ is reflected in the
following conclusion:
‘
In
the circumstances, the respondent has failed to prove that the
discrimination against the applicant was in line with an employment
equity plan that had been the subject of proper consultation and that
the measures relied upon to de-select the applicant were
permitted by
the employment equity plan relied upon
.’
[10]
In support of this finding, Whitcher AJ
found that appellant’s witnesses had been unable to provide the
court
a quo
with any evidence other than their “say so” to the effect
that the equity plan upon which appellant averred that it
based its
decision had been the product of proper consultation. In the view of
the learned judge
a quo
:
“It is unthinkable that no corroborating documentary evidence
would be available to sustain such a claim”. Further,
appellant’s claim was directly:
‘
contradicted
by the letter of 29 May 2000 from the KZN province to the national
office. This letter makes it clear that, as
at the 29 May 2000,
one day before the Interim Plan was submitted to the Department of
Labour, no reliable workforce or demographic
profile of the province
had been prepared or consulted on and that there had been no
consultation on affirmative action measures
and numeric goals
relevant to the province. It was only by the end of the year 2000
that the province anticipated that these issues
would have been
compiled and consulted on.
’
Evaluation
[11]
In his most able argument to the court, Mr
Maenetje SC, on behalf of appellant, noted that the critical dates
for the resolution
of the present dispute were 12 and 13 July 2000,
31 July 2010 and 11 August 2000. In particular, on 12 and 13 July
2000, the National
Panel for Promotions within SAPS met to consider
recommendations from various business divisions, principally in the
provinces,
in respect of candidates that were to be appointed. During
this meeting, Regional Commissioner Stander briefed the Panel as to
the history of SAPS’ appointment policy. On 27 June 1997, an
affirmative action policy for SAPS had been agreed upon in the
Safety
and Security Sectorial Bargaining Council. Of particular importance
was a paragraph in the policy entitled “Targets,
Quotas and
Timeframes”. It reads as follows:
‘
In
order to manifest commitment to this policy and constitutional
responsibility, the South African Police Service shall strive
to
reflect the demographics of the country in all occupational classes
and at all levels of the organisation at national and provincial
levels, in terms of race and gender. Persons with disabilities
shall be accommodated in terms of their abilities, and the
nature of
services rendered by the Service.
To this end, certain
mechanisms are required, of which the most important is the setting
of attainable goals for the organisation
which, in turn, will reflect
the minimum requirement for representivity set by the Government.
Therefore, the
Service shall strive to attain a minimum fifty (50) percent Black
people at management level by the year 2000.
During the same
period, women shall comprise at least thirty (30) percent at middle
and senior management levels. Within
ten (10) years, people
with disabilities shall comprise at least two (2) percent of the
Service. In order to meet the objectives
of this document, the
Service shall strive to attain representativeness which reflects the
population distribution based upon the
1996 National Populations
Census, by the year 2005.’
[12]
On 13 March 2000, a further circular was
generated, headed “Post Promotions – Members of the South
African Police Service:
Captain to Superintendent”. In
particular the following key statements were contained in this
letter:
‘
For
the purposes of deployment and to promote representivity in the South
African Police Service, applicants must note the fact
that although
they may indicate their preferences for specific posts, the
successful candidates can be offered any other advertised
post on the
same level if the candidate has indicated it as such on the annexure
B. If a post is not filled for some
reason or another,
the post will be re-advertised. In order to promote
representivity, the following guidelines are laid
down which have to
be achieved as far as possible taking into consideration the
composition of the Provinces/Divisions at present.
50% / 50% in terms
of gender
70% / 30% in terms
of race…
To consider the
applications for posts, panels must be convened at
provincial/divisional level under the chairmanship of at least
a
director. Care must be taken that the panels are representative
as far as race, gender and disability are concerned.
Taking
also into account the Strategic Objectives and Operational Plan of
the South African Police Service, the panels must make
a
recommendation for the placement of a candidate in a post. Full
minutes must be kept. Please note that one selected
member per
recognised employee organisation having observer’s status may
attend the proceedings. However, these representatives
may not
take part in the proceedings.
The criteria for the
selection of the candidates are as follows:
1. The training,
skills, competence and knowledge necessary to meet the inherent
requirements of the post.
2. Posts occupied by
the candidate, including his/her present post and station.
3. Representivity
4. The needs of the
SAPS in terms of the strategic objectives and operational plan.
5. The particular
circumstances of the candidate
6. Acting in a
higher post by the candidate and the period
7. Evaluation report
of the candidate – the marks allocated.’
[13]
On 1 May 2000, the then National
Commissioner of SAPS submitted an “Interim Employment Equity
Plan”. He stated “the
plan will undergo further
consultation processes which may necessitate changes. The finalised
plan will be submitted to your Department
on or before 30 June 2000.”
In this plan, it was made clear that there should be a 60%
appointment from persons drawn from
the designated groups for the
year 2000 and 70% for the year 2001.
[14]
At a meeting of the National Panel held on
12 and 13 July 2000, the minutes reflected that it had been decided
that SAPS would strive
towards the following ratios to enhance
representivity:
‘
It
was decided that the panel will strive towards the following rations
to enhance representivity:
100% - 70% male
30
% females
70% Black (African,
Indians, Coloured)
70%
male
30
% females
30% Whites
- 70% male
30
% females
[15]
It should be noted that representatives of
organised labour were present at this meeting. At this meeting, it
was also agreed that
“the demographics as provided by the 1996
census (should) be used as a guideline to indicate whether a positive
move towards
reaching … the numerical goals were brought
about.” Significantly, as far as KwaZulu-Natal was concerned,
the minutes
recorded the following: “Although it was evident
that a major attempt was made to reach the target, the
recommendations are
referred back to the Province with the emphasis
on black male, white female and black female”. (sic)
[16]
As Major General Brown, a member of the
Provincial Promotion Panel (KwaZulu-Natal) testified, the Provincial
Panel understood clearly
that the reference to “black male and
black female” meant African male and African female candidates.
[17]
On 19 July 2000, a letter was generated by
Divisional Commissioner Stander to the Provincial Commissioner of
SAPS, KwaZulu-Natal
in which the following was said:
‘
It
is clear from your recommendations that your Province is but one of a
few which really endeavoured to reach the desired outcome.
However the representivity level of black males, black females and
white females can be improved. The numerical goals as
set out
in the Employment Equity Plan as attached must be used as guideline.’
Post 459
[18]
With this background, it is now possible to
turn to the appointment process relating to Post 459. Second
respondent was considered
to be an appropriate candidate in terms of
the shortlist. He was initially shortlisted as the second candidate
after Mr J Dhanesar,
whom the area selection panel regarded as the
best candidate. According to General Brown, when the panel found out
that Mr Dhanesar
had a pending criminal case against him and thus
could not be promoted, it decided to replace Dhanesar with second
respondent.
However, in light of the recommendation by Divisional
Commissioner Stander that “the representivity level of black
males
and black females and white female could be improved”,
the Provincial Panel re-evaluated the recommendation. Captain Zakwe
had also been shortlisted for post 459 as number four of the
preferred candidates. He had scored 60.70 points compared to second
respondent’s 62.47 points. According to Major General Brown:
‘
Then
if you look at Zakwe he also had a period where he was the station
commissioner’s clerk and Support Services. So
equally
they both had an administrative background. But then if you see
his title here was the Commander of Crime Prevention
and he was
already ensuring that he was performing in the Pinetwon area,
cooperation between the police service and the community.
So he
was actual fact already in that field.
WHITCHER
AJ
of Crime Prevention? Yes.
MR
MAENETJE
So if I may ask you then, was
there much to choose between them other than that the area had ranked
them differently as far as you
were concerned conducting the review?
--- NO, we as the review felt that Zakwe was in actual
fact currently doing the
function which he had applied for. And
Munsamy had the necessary background, but he was not active in that
field at that
moment.
And the
recommendations that you made to national were those accepted by
national? Yes
And as a whole? As
a whole?’
[19]
Significantly, when second respondent
testified, he confirmed that Zakwe was appointable.
‘
Now
do you accept with the basic proposition that all – if you look
at page 70 – all of the shortlisted candidates 1
to 4 are
considered by area to be appointable to that post, would you agree
with that? That’s correct.
[Break in recording]
recommendations were considered, that is the review, when they
conducted the review at provincial level, Zakwe
was already active in
crime prevention, was in an acting post in crime prevention, you
recall that? --- No, I cannot recall that.
You can’t
recall that? Well, that’s what Brown said, do you have any
reason to dispute that? No, I don’t.
Yes, you don’t
dispute it, yes. Just that it doesn’t, the recording won’t
pick up when you shake your head, so
you do have to say. I say yes.
Yes. And you
also heard the evidence of Brigadier Marais yesterday that by the
time that Zakwe passed away he had been promoted
twice to the rank of
full colonel, do you recall that? --- It wouldn’t
have been twice, once.
I thought that
[break in recording] yes, now, and he also testified that there would
have been a performance assessment before he
was promoted to the
position of full colonel. Or, that is, performance would have
been taken into account. Is that
something you recall, or not
recall? --- Because he had to undergo an interview
process for that rank, so it could
have been done then.
Yes. So, there
would have been an assessment of his performance before he gets a
position of full colonel? ---
That’s correct.’
Second
respondent’s case
[20]
Ms Allen, who appeared on behalf of second
respondent, contended that the employment equity plan submitted by
the KwaZulu-Natal
Province at the end of May 2000 had made it clear
that it had not, at that time, completed its workforce profile and
was thus unable
to set justifiable numerical targets.
‘
Human
resources Management has however began [sic] the workforce profiling
process. Once this had been completed the Equity
Plan,
especially with regard to setting of numeric targets will be
formulised.’
She
noted that it was only by the end of 2000, that KwaZulu-Natal
anticipated that it would have compiled a demographic profile
of SAPS
KwaZulu-Natal. Accordingly, in the absence of accurate data from
which numerical targets could be established, Ms Allen
submitted that
the numerical targets which had been set by KwaZulu-Natal could not
be objectively defended as a legitimate basis
for the deselection of
second respondent from the post into which he had been initially
recommended; that is post 459.
[21]
Ms Allen also attacked the reliability of a
document dated 19 July 2010 entitled “Numerical Goals –
KwaZulu-Natal Demographics”.
She noted that the goals which had
been contained in this document for salary levels 9 and 10 were
irrational. For example, in
2000, it was recorded that there were 284
posts; 95 held by Indian men, 14 by African men and 132 by White men.
For the year 2001,
479 posts had to be filled of which 145 would be
African men, 17 Indian men and 164 White men. In her view, this set
of numerical
targets was manifestly irrational in that it would
result in a significant increase in appointments of white men and an
extremely
significant decline in posts held by Indian men. In short,
the plan could not be justified and any promotion based thereon was
not congruent with the relevant law.
[22]
It is to these questions that I now turn.
Evaluation
[23]
To recall the dispute which was defined in
the supplementary pre-trial minutes, the issues which the court
a quo
was
required to decide were the following:
‘
1.
Whether the selection process was fair, objective, reasonable and
justifiable?
2. Whether the
Employment Equity Plan and/or the numerical goals/targets were
objective, reasonable, justifiable, and in line with
the provisions
of the Employment Equity Act?
3. Whether
respondents’ (appellant’s) affirmative action policy was
fair, objective, reasonable and justifiable and
in line with the
provisions of the Employment Equity Act?
4. Whether the
respondent unfairly discriminated against the applicant on the
grounds of race in failing to and/or refusing to appoint
the
applicant to any one of the disputed posts namely post numbers 493,
459 and 463.’
[24]
Stripped to its essentials, the court
a
quo
was required to determine the
legality of appellant’s employment equity plan and whether
appellant’s decision not to
promote second respondent into post
459 could be justified in terms of the plan.
[25]
The
Employment Equity Act (‘the Act’)
[1]
was the subject of recent interrogation by the Constitutional Court
in
SAPS
v Solidarity obo Barnard (Barnard).
[2]
The Court noted that the Act contained important objectives,
including the elimination of unfair discrimination at the workplace
and the implementation of employment equity to redress the effects of
past discrimination in order to achieve a diverse workforce
which was
representative of the South African people. In terms of s13(1) of the
Act, a designated employer was obliged to take
affirmative action
measures. Section 15 of the Act mandates that affirmative action
measures must be designed to ensure that “suitably
qualified
people from designated groups have equal employment opportunities and
are equitably represented in all occupational categories
and
levels”. Section 15(3) of the Act provides that the
measures directed to affirmative action may include preferential
treatment and numerical goals
but
must exclude
quotas.
[26]
Second respondent’s case had
essentially been pleaded on the basis of an absence of an employment
equity plan. The evidence
clearly indicated that a contrary
conclusion was justified. I readily accept that the document entitled
Numerical Goals proved
impossible to comprehend. But that alone does
not mean that there was not an employment equity plan with which the
appellant had
worked. The Review Board Summary of 31 July 2000 made
this perfectly clear with reference to post 459 where the following
appears:
‘
06122876
Munsamy M was initially recommended for the post. The panel
reconsiders the applications in order to address representivity
and
the numeric targets as set out in the Employment Equity Plan.
The panel concurs to focus on the target groups as indicated
in Head
Office minute 8/1/1 dated 2000-07-19.
06017631 Zakwe VH is
recommended for the post.’
[27]
Whatever the reliability of the Numerical
Goals – KwaZulu-Natal Demographics document might have been, it
was not disputed
in any of the evidence placed before the court
a
quo
that Indian males had been over
represented at the relevant level within the Province. Furthermore,
it is clear from the minutes
to which I have made reference that the
decision to appoint Captain Zakwe was in order to address the under
representation of African
males at the relevant level and thus to
enhance representivity.
[28]
The court
a
quo
found that appellant had failed to
prove that discrimination against the second respondent “was in
line with the employment
equity plan that had been the subject of
proper consultation and that the measure relied upon to deselect the
applicant were permitted
by the employment equity plan relied upon”.
[29]
The first reason offered by the court
a
quo
was not part of second respondent’s
pleaded case. There was nothing in the pleaded case which suggests
that second respondent
was relying on s16 of the Act which places an
obligation on a designated employer to take reasonable steps to
consult in an attempt
to reach agreement on an employment equity
plan. Courts should not stray beyond the cause of action as pleaded.
(See
Fischer and Another v
Ramahlele and Others
2014 (4) SA 614
(SCA) at paras 17 and 18). But even if the point was pleaded,
regrettably, the court
a quo
appeared to have ignored the following paragraph which was contained
in the Interim Employment Equity Plan. It read thus:
‘
CONSULTATION
The consultation
process has been structured in such a fashion that there has been
consultation at all levels. In every business
until an internal
consultation process with employees and/or their representatives has
taken place. External to the business
units the Transformation
committee through its Affirmative Action Task Team is being utilised
as consultation forum. At National
level the Safety and
Security Sectorial Bargaining Council is being used for consultation
purposes. It must be noted that due to
the ever changing nature of
the environment and work force movement, the consultation process
will be continuous throughout the
life span of the Employment Equity
Plan.’
[30]
This paragraph should be read with another
piece of evidence which was in the record, namely the South African
Police Service Employment
Equity Plan Report 1 June 2000 – 31
December 2004 which sets out in considerable detail the consultation
which took place
insofar as the plan was concerned. If that was not
enough, further evidence was provided by Colonel Ramathoka. He
testified how
organised labour was consulted during the process of
the development of the plan. All of this had taken place before the
plan had
been signed off on 1 June 2000 by former National
Commissioner Selebi. None of this evidence was contested under
cross-examination.
[31]
In summary, there was no basis by which the
court
a quo
could have concluded that the plan was defective for want of
consultation. Furthermore, to the extent that the court
a
quo
found that there was no
consultation with regard to a “non-existent plan”, the
evidence showed compellingly that indeed
there was an equity plan and
it was upon the terms of this very plan that the decision not to
appoint second respondent had been
predicated.
[32]
This finding leaves two further questions,
namely whether the plan itself was objective, reasonable and
justifiable in terms of
the Act and, secondly whether the appellant
was justified in terms of the plan to decide not to appoint second
respondent to post
459.
[33]
In
Barnard
case,
supra
the majority of the Court appeared to take the view that any
challenge to the implementation of a decision which was the subject
matter of the dispute, could be resolved in terms of principle of
legality which would “require that the implementation of
a
legitimate restitution measure must be rationally related to the
terms and objects of the measure.”
[3]
[34]
Moseneke ACJ then continued:
‘
Ordinarily,
irrational conduct in implementing lawful projects attracts
unlawfulness. Therefore, implementation of corrective measures
must
be rational’.
[4]
[35]
The
Barnard
decision turned on the implementation of a legitimate restitution
measure; that is the measure itself was not attacked in that
Barnard
accepted that the Employment Equity Plan in question was a valid
affirmative action measure.
[5]
Hence as Cameron and Froneman JJ and Majiedt AJ said in
Barnard
:
‘
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.’
[6]
[36]
In the present case, to the extent that the
plan was attacked, the majority judgment in
Barnard
reminds us that the test as to whether a restitution measure is
compatible with the Constitution is as follows:
‘
The
measure must:
(a) target a
particular class of people who have been susceptible to unfair
discrimination;
(b) be designated to
protect or advance these classes of persons; and
(c)
promote the achievement of equality.’
[7]
[Footnote
omitted]
[37]
This
three stage test recalls the earlier judgment of the Constitutional
Court in
Minister
of Finance and another v Van Heerden.
(
Van
Heerden
)
[8]
In that case, Moseneke J (as he then was) said that, firstly, a
measure in order to be constitutionally compatible must target
persons or categories of persons who had been disadvantaged by unfair
discrimination.
[9]
Secondly the
measure must be designed to protect or advance the persons or and
categories of persons who have been disadvantaged
by unfair
discrimination and must be reasonably capable of obtaining the
desired outcome.
[10]
Thirdly,
the measure must promote the achievement of equality. This requires
an assessment as to whether the measure ‘will
in the long run
promote the achievement of equality’.
[11]
[38]
Manifestly, in the present case,
appellant’s employment equity plan was targeted toward
addressing the past and, in particular,
classes of people who had
been susceptible to past unfair discrimination. The plan was thus
designed to protect and advance the
employment’s applications
of these classes of persons.
[39]
A further question arises in this case in
that second respondent was also part of a designated group. And that
can make the question
of testing an employment equity plan all the
more difficult.
[40]
I accept as do Cameron, Froneman JJ and
Majiedt AJ in their judgment in
Barnard,
supra,
that these issues raise
transformative tensions between the equality entitlement of an
individual and the equality of society as
a whole and further the
competing claims of members of a designated group, albeit with
somewhat different histories. All too often,
we search for
reconciliation instead of understanding that in a country as rich in
diversity and as complex in history as is ours,
we may have to live
with contradiction. However, in the final analysis in negotiating a
justifiable path through this contradiction,
Moseneke J in
van
Heerden
reminds us of the following:
‘
It
is also clear that the long-term goal of our society is a non-racial,
non-sexist society in which each person will be recognised
and
treated as a human being of equal worth and dignity. Central to this
vision is the recognition that ours is a diverse society,
comprised
of people of different races, different language groups, different
religions and both sexes. This diversity, and
our equality as
citizens within it, is something our Constitution celebrates and
protects. In assessing therefore whether
a measure will in the
long term promote equality, we must bear in mind this constitutional
vision. In particular, a measure should
not constitute an abuse of
power or impose such substantial and undue harm on those excluded
from its benefits that our long-term
constitutional goal would be
threatened.
’
[12]
[41]
The goal as set out in s9(2) of the
Constitution is to promote a vision of a non-racial, non-sexist
society. The measures envisaged
in s9(2) are to be directed to this
end. The Act seeks to vindicate this vision by ensuring that the
equity plan which is implemented
cannot impose quotas and must ensure
the advancement of suitably qualified candidates from designated
groups (ss15(1) and (3)).
But within this framework, the purpose of
the Act is to promote equal opportunity and fair treatment in
employment and to redress
the structural forms of racism and sexism
which have produced such widespread disadvantage. This goal is an
imperative if we are
to construct a nation in the image of the
Constitution.
[42]
Africans throughout South Africa’s
racist history suffered the most sustained and egregious forms of
discrimination. The evidence
presented in this case, which stands
uncontradicted reveals the pernicious effect thereof. At all
applicable levels of the organisation,
Africans were hopelessly
underrepresented. The plan sought to ensure that restitution took
place in order that a broadly non-racial
police force could emerge in
KwaZulu-Natal, one that was not predicated on previous historical
patterns.
[43]
While there may be difficult cases where
competing claims within designated groups will vex a court with great
anxiety, in this
case the difference in scores between Captain Zakwe
and second respondent was insignificant. Furthermore, it was common
cause that
Captain Zakwe had the necessary ability to perform in the
post with distinction.
[44]
In conclusion, there can be no basis by
which to justify a conclusion that there was no plan, that the plan
did not seek to fulfil
the objectives as set out in the judgments in
Barnard
and
Van Heerden
supra
and
that the implementation of this plan to the facts of this case
resulted in second respondent suffering unfair discrimination.
For
these reasons, all of the basis upon which the court
a
quo’s
judgment was predicated
must be found to be incorrect.
[45]
For this reason, the following order is
made:
1.
The appeal is upheld with costs.
2.
The order of the Labour Court is set aside and replaced with the
following order:
The
application is dismissed with costs.
Davis
JA
Ndlovu
JA and Hlophe AJA concurred
APPEARANCES:
FOR
THE APPELLANT AND
THIRD
RESPONDENT: Mr NH Maenetje SC
Instructed by
State attorney, Johannesburg
FOR
THE FIRST AND
SECOND
RESPONDENTS: Ms K Allen
Instructed
by Norton Rose Fullbright, Durban
[1]
55
of 1998.
[2]
2014
(10) BCLR 1195 (CC).
[3]
Barnard
at para 39.
[4]
Barnard
at para 39.
[5]
Barnard
at para 52.
[6]
Barnard
at para 102.
[7]
Barnard
at para 36.
[8]
2004
(6) SA 121 (CC).
[9]
Van
Heerden
at para 48.
[10]
Van
Heerden
at para 41.
[11]
Van
Heerden
at para 44.
[12]
Van
Heerden
at para 44.