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[2015] ZALAC 124
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South African Police Service v Public Service Association of South Africa and Others (DA01/2014) [2015] ZALAC 124 (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 333421.00 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 no
ted
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 plea
ded,
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]
Henc
e
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
decisi
on.’
[6]
[36]
In
the present case, to the extent tha
t 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)
prom
ote
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] ZACC 3
;
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.