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[2015] ZALAC 21
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Minister of Safety And Security and Others v Naidoo (JA66/2013) [2015] ZALAC 21; [2015] 11 BLLR 1129 (LAC) (11 June 2015)
Not
Reportable
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
Case no: JA 66/2013
In the matter between:
THE MINISTER OF SAFETY AND
SECURITY
First Appellant
THE NATIONAL COMMISSIONER OF
THE SOUTH AFRICAN POLICE
SERVICE
Second Appellant
SOUTH AFRICAN POLICE
SERVICE
Third Appellant
and
JENNILA
NAIDOO
Respondent
Heard:
18 November 2014
Delivered: 11
June 2015
Summary:
Affirmative
action -
Employment Equity
Act
55 of 1998
–
Affirmative
action measures aiming at the advancement of designated groups –
employee’s recommendation by provincial
panel for appointment
overlooked by national panel – national panel appointing
another candidate – employee contending
unfair discrimination
based on race – evidence proving that appointment of
successful candidate advancing service delivery
and that appointed
employee having more operational experience than unsuccessful
employee – Employer’s decision consonant
with its
employment equity plan – Labour Court’s judgment set
aside – appeal upheld.
Coram: Musi JA, Murphy AJA
et
Kathree-Setiloane AJA
JUDGMENT
C J MUSI JA
[1]
Measures designed to achieve equality by targeting persons or
categories of persons who have been disadvantaged by unfair
discrimination
have been the subject of many court challenges. This
is yet another one of them.
[2]
This appeal, which is with leave of this Court, is against the order
of the Labour Court (Shaik AJ) wherein it found that the
National
Commissioner of the South African Police Service (The second
appellant or the Commissioner) unfairly discriminated against
the
respondent on the ground of her race and gender and declaring her
non-appointment to be substantively and procedurally unfair.
[3]
During April 2009, the South African Police Service (SAPS) advertised
various vacancies. The respondent applied and was subsequently
interviewed for the position of Cluster Commander: Krugersdorp (the
post). The provincial selection panel recommended her for
appointment. The second appellant, however, rejected the
recommendation and appointed another candidate, TS Maswanganyi.
[4]
The respondent lodged an internal grievance which was not resolved to
the respondent’s satisfaction. She referred the
dispute to the
Commission for Conciliation Mediation and Arbitration which issued a
certificate that the matter should be referred
to the Labour Court.
The Labour Court found in the respondent’s favour.
[5]
The facts of this matter are mainly common cause. The respondent (an
Indian female) joined the SAPS in 1989 as a student Constable
in
KwaZulu Natal. She was transferred to Gauteng where she rose through
the ranks and in 2001, she was appointed as a Deputy Area
Commissioner. She had experience in operational and support
functions. She confirmed that she applied, was shortlisted and
interviewed
for the post. She was dissatisfied with her
non-appointment because she was recommended for the post and her
appointment would
have enhanced gender equality and service delivery.
She was of the view that the Commissioner discriminated against her
based on
her race and gender.
[6]
General Bester, who was a member of the provincial panel that
assessed candidates for,
inter
alia,
the post and made recommendations to the Commissioner, testified that
the selection panel considered the National Instruction 3
of 2000
[1]
when the candidates were assessed. The assessment consisted of
looking at the curricula vitae of the candidates, their relevant
experiences, prior learning, knowledge and skills, managerial ability
and competence. The candidates had to do a presentation and
they
participated in a crisis management role-play.
[7]
The respondent obtained 74,2% and Director Maswanganyi obtained
71,1%. Director Mothlala obtained the highest mark, 77,7%. The
provincial selection panel made the following recommendation:
‘
The
panel recommends Director J Naidoo (respondent) as the first
candidates due to the fact that the candidate with the highest
mark
(Motlhala) is already recommended for post 2009. In the event that
she cannot take up the post, Director Maswanganyi is recommended
as
the second candidate and Director A du Bruin as the third candidate.
The recommendation will address gender equality.’
[8]
Bester testified that the respondent was recommended because she was
the best person for the post (merit) and her gender was
also
considered. She also testified that they received a document from the
SAPS’ equity experts which indicated that an Indian
female may
be appointed to the post.
[9]
On 28 April 2009, the Divisional Commissioner: Career Management
wrote a letter to
inter alia
All Divisional Commissioners and
Provincial Commissioners, stating the following:
‘
1.
The Cabinet memorandum dated April 2006 pertaining to the
above-mentioned matter, paragraph
3 of the Head of Department’
s
8
-principle Action plan for promoting women’s empowerment and
principle 9 of the Monitoring and Evaluation report
on
the South African Police Service (SAPS) refer. A copy of the
memorandum, 8-point plan and principle 9 is enclosed herewith for
easy reference.
2.
Subsequent to the concerns raised by the DPSA and Presidency in terms
of reaching
the 50/50 allocation for women representation on the SMS
level by March 2009, it is imperative that SAPS utilize and seize the
opportunity to fill most of the posts advertised in the current round
of appointments with women to adhere to the ratio approved
by the
Cabinet.
3.
By setting a higher target, the SAPS will at least reach the 70/30
target, since
there is only 21% women on the SMS level currently.’
[10]
Bester testified that the ‘current round of interviews’
in the letter refers
inter
alia
to the interviews
conducted for the post. They therefore considered the 50/50
target when they recommended the respondent.
She testified that after
they had made their recommendation, she received a telephone call
from General Phahlane who asked her
about the female candidates that
were recommended for other positions and about the respondent. With
regard to the respondent,
she told him that the respondent was the
first woman ever appointed as a Cluster Commander because she was
appointed Commander
of the Randburg zone during a pilot project, and
that her appointment would also address gender equity. Phahlane then
said that
the respondent is a support person. She requested him to
read the respondent’s CV. Bester confirmed that the second
appellant
rejected their recommendation and appointed Director
Maswanganyi.
[11]
During cross-examination, Bester testified that she was not familiar
with the SAPS’s equity plan or its implementation
but that she
viewed it as a guide. She conceded that the SAPS was obliged to act
in terms of their equity plan when appointing
personnel but that she
has never seen the equity plan. She confirmed that the panel gave
effect to the Cabinet decision and disregarded
the equity plan.
[12]
Colonel Ramathoka, who was stationed at the Division: Human Resource
Utilisation and working as the Subsection Head: Monitoring
and
Evaluation, testified that it was,
inter
alia
,
his responsibility to draft the equity plan of SAPS. He confirmed
that the equity plan was implemented after an extensive consultative
process within both the SAPS and the Bargaining Council for the
safety and security sector. The Employment Equity Plan of
the SAPS
was developed in line with the prescripts of the Employment Equity
Act
[2]
(the Act). The
relevant employment equity plan was valid and applicable from 1
January 2007 to 31 December 2010.
[13]
He confirmed that statistical data in relation to the demographics of
the national population was extrapolated from the national
census
report of 2006 that was compiled by Statistics South Africa, at the
time. Based on those statistics, the equity plan determined
that 79%
of all posts should be allocated to Black Africans. Of the 79%, 70%
of the posts would be allocated to Black males and
30% thereof to
Black females. 2,5% of all posts would be allocated to Indians. Of
the 2,5%, 70% would be allocated to Indian males
and 30% to
Indian females. The 2,5% was derived from the census report and was
reflective of the number of Indian citizens.
The targeted ratio was
therefore 70% males and 30% females.
[14]
He confirmed that the SAPS has a plan which commenced on 1 January
2014. In terms of the new plan, the gender representivity
target was
changed from 70/30 to 50/50.
[15]
In terms of the numeric targets of the equity plan none of the five
positions advertised on level 14 were supposed to be allocated
for
Indian females. The witness demonstrated how numerically on a 70/30
or 50/50 ratio there would still be no allocation for Indian
females
given the number of posts and the national demographics. There were
19 level 14 posts in terms of the resource allocation
guide. Fourteen
of the nineteen posts were already filled. The remaining five were
advertised and the post was one of them. In
order to determine,
numerically, how many posts should be allocated to which designated
group and gender, one should take national
demographics of the
particular group. In the case of Indians, they were 2,5 % of the
national population. Multiply that by the
number of actual posts (5 x
2,5% = 0,125), which will give the number of Indians which may be
appointed. In order to determine
the number of Indian women that
should be appointed 0,125 must be multiplied by 30%, therefore 0,125
x 30% = 0,375; which rounded
off is equal to zero. Even on the 50/50
ratio, it would still be zero for level 14 posts in Gauteng Province,
because 5 ×
2.5% = 0,125. 0.125 × 50% = 0.0625 which
would, if rounded off, still amount to zero. There were no Indian
females on level
14 in Gauteng which was, in terms of the employment
equity plan, ideal.
[16]
Lieutenant General Phahlane testified that he was the Divisional
Commissioner: Personnel Services and therefore responsible
for the
recruitment, selection and appointments process in the SAPS. He also
serves as the Secretary of the national appointment
panel (the
national panel) which was chaired by the National Commissioner. He
confirmed that the national panel received the provincial
panel’s
recommendations but they were not satisfied. They were dissatisfied
because, firstly, the respondent would not function
optimally in the
post; secondly that she did not have sufficient experience in the
operational environment and thirdly they were
of the view that her
appointment would not enhance the employment equity profile of the
business unit on level 14. He was requested
to consult with the
Provincial Commissioner in order to share the concerns raised by the
national panel and to get his input.
[17]
Deputy Commissioner Bester was acting as the Provincial Commissioner
and he spoke to her. Her response was that the recommendations
were
made by the Provincial Panel.
[18]
He testified that all the documents including the curricula vitae and
score-sheets of the candidates were before the national
panel. It was
clear that Maswanganyi had superior operational experience when
compared to the respondent but the bulk of the respondent’s
experience was in a support environment. The national panel also
considered the fact that there was a disparity in the scores;
it
looked like Bester, undeservedly, gave the respondent very high marks
whilst she gave Maswanganyi low marks, even though he
had more
experience than the respondent. General Bester’s scores were
not consistent with the information contained in the
CV’s of
the two candidates. The National Panel also considered a letter
written by the respondent on 17 September 2007, approximately
two
years before this process. In the letter, she made representations
not to be transferred from Johannesburg Central Support
Service to
Sophia town as Station Commissioner, which was an operational post.
In the letter, she
inter alia
wrote the following:
‘
I
would once again like to bring to your attention that I have no
experience or training as a Station Commissioner or any exposure
to
Detective Service work. I do not have the passion for or the interest
in such a position. I thus believe that given the challenges
of and
the needs of the Sophia town community, that will be unfair to post
an inexperienced Station Commissioner who still has
to learn the job
and is unable to deliver on their needs, immediately. I also believe
that this will set me up for failure and
will certainly not be
empowering to me in any way.
As
much as I appreciate the fact that you believe that ( ) is meant to
empower me for my future growth and career in the SAPS. I
would like
to state that I have never in the past applied for promotional posts
as a station commissioner and have no intention
of doing so in the
future.
My
passion and interest, if I remain in the service, is Human
Development specifically in a training environment, since I believe
that it is an area that could impact positively on the SAPS as a
whole. To this end I intend studying further in this field. I
would
be able to do training at my current or any other level and foresee
(sic) this as my future career path, promotion or non
promotion
(sic).’
[19]
Based on the national panel’s view that Maswanganyi had
superior operational experience; that his appointment will enhance
employment equity in the business unit and that they suspected
that he was being deliberately overlooked by the provincial
panel,
the provincial panel’s recommendation was rejected. The
national panel commented as follows:
‘
Recommendation
not approved in respect of Director J Naidoo. The appointment not
enhancing employment equity. The panel’s
recommendation not
consistent with the service delivery objectives. The second candidate
Director Maswanganyi’s appointment
to the post
approved.’
[20]
It was common cause that the Provincial Panel had no power to appoint
the respondent. They only recommend
a candidate for appointment by
the National Commissioner. In terms of National instruction 3 of
2000, the selection panel must
indicate to what extent employment
equity would be promoted by the implementation of its
recommendation.
[3]
Furthermore, that a
candidate who, on average, obtained the highest score is not entitled
to be appointed to the advertised post.
[22]
The Labour Court found that Phahlane’s explanation, with regard
to the inherent requirements of the job precluding the
respondent
from being appointed, is an afterthought. It also found that her lack
of experience was not mentioned by the National
Commissioner as a
reason for her non--appointment. The Labour Court correctly found
that it was the assessment centre and the Provincial
Panel that were
charged with the duty to assess candidates. It however said the
following:
‘
If
the national panel was of the view that the scoring was not a fair
reflection of the candidates that it ought to have requested
a
re-examination and by a differently constituted panel. It was not
entitled to reject the scoring and substitute their own if
indeed
that is what they did.’
[23]
The Labour Court pointed out that the National Instruction stated
that the appointment procedure is based on the principle
of open
competition, competency, and objectivity of the fairness and is aimed
at creating a workforce which is broadly representative
of the South
African population, in particular as far as race, gender and
disability is concerned. The Labour Court then concluded
that the
national panel did not meet the competing candidates, did not afford
them the opportunity to place information relevant
and necessary
before it and thereby compromised the values underlying the National
Instruction. According to the Labour Court,
at the very least,
candidates ought to have been made aware that the results of the
assessment were being nullified and their assessment
was being
conducted by the national panel and the process that would be
followed.
[24]
The Labour Court criticised the national panel for taking the
representations of the respondent into consideration when it
made the
appointment. It referred to paragraph 10(8) of the National
Instruction which reads as follows:
‘
Negative
information regarding particular candidates may not be taken into
account if the information has not been put to the candidate
during
the assessment and he or she was not afforded the opportunity to
respond to such information.’
[25]
The Labour Court concluded that “the competing candidates had
no meaningful opportunity to press their candidature on
the national
panel. As a result of the national panel nullifying the scoring of
candidates done at the assessment centre and by
the provincial panel,
the taking into account irrelevant considerations, the absence of any
process let alone one that was objective
and fair caused the
principle of open competition to be violated and as a result of such
violation the Applicant (respondent) was
made to suffer prejudice.”
[26]
The Labour Court found the national panel’s assertion that the
provincial panel’s recommendation is inconsistent
with service
delivery objectives to be vague and nebulous.
[27]
The Labour Court reviewed the employment equity plan and concluded
that it is inconsistent with the purpose of the Act and
the
Constitution of the Republic of South Africa 108 of 1996 (the
Constitution).
[28]
On this score, Mr Ngcukaitobi submitted that the court
a quo
erred in reviewing the equity plan because that was neither the
respondent’s request nor her case. He argued that the Labour
Court was supposed to confine itself to the respondent’s case
which concerned the application of the plan in relation to
her. He
further submitted that the court
a quo
totally misconstrued
the facts and the law relating to this matter.
[29]
The Constitutional Court has delivered a judgment in a similar
matter.
[4]
The different views
and nuances of the separate judgments in
Barnard
were comprehensively analysed by this Court in
Solidarity
and Other v Department of Correctional Services and Others
.
[5]
It is therefore
unnecessary to repeat that exercise in this judgment.
[30]
Section 9 of the Constitution 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.”
[31]
The employment equity plan is a measure that was taken by the
appellants to protect or advance persons or categories of persons
who
were disadvantaged by unfair discrimination. In
Minister
of Finance v Frederick Jacobus Van Heerden,
,
[6]
it was said that:
‘
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 it is 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 requirement is whether the measure promotes the achievement of
equality.’
[7]
[32]
Once a measure passes the above test, it is neither unfair nor
presumed to be unfair.
[8]
Although remedial
measures may be taken to advance those who were disadvantaged by
unfair discrimination, they must not invade the
human dignity of
those affected by them.
[9]
[33]
The Act seeks
inter alia
to achieve equity in the workplace by
promoting equal opportunity and fair treatment in employment through
the elimination of unfair
discrimination and implementing affirmative
action measures to redress the disadvantages in employment
experienced by designated
group, in order to ensure their equitable
representation in all occupational categories and levels in the
workplace. In terms of
section 6(2) of the Act, it is not unfair
discrimination to take affirmative action measures consistent with
the purpose of the
Act or to distinguish, exclude or prefer any
person on the basis of an inherent requirement of a job.
[34]
Section 15 of the Act states:
‘
15
Affirmative action measures
(1)
Affirmative action measures are measures designed to ensure that
suitably qualified
people from designated groups have equal
employment opportunities and are equitably represented in all
occupational levels in the
workforce of a designated employer.
(2)
Affirmative action measures implemented by a designated employer must
include-
(a)
measures
to identify and eliminate employment barriers, including unfair
discrimination, which adversely affect people from designated
groups;
(b)
measures
designed to further diversity in the workplace based on equal dignity
and respect of all people;
(c)
making
reasonable accommodation for people from designated groups in order
to ensure that they enjoy equal opportunities and are
equitably
represented in the workforce of a designated employer;
(d)
subject
to subsection (3), measures to-
(i)
ensure the equitable representation of suitably qualified people from
designated
groups in all occupational levels in the workforce; and
develop people from designated groups and to implement appropriate
training
measures, including measures in terms of an Act of
Parliament providing for skills development.
(3)
The measures referred to in subsection (2)
(d)
include
preferential treatment and numerical goals, but exclude quotas.
(4)
Subject to section 42, nothing in this section requires a designated
employer to take
any decision concerning an employment policy or
practice that would establish an absolute barrier to the prospective
or continued
employment or advancement of people who are not from
designated groups.’
[35]
In terms of section 20(1) of the Act, a designated employer must
prepare and implement an employment equity plan which will
achieve
reasonable progress towards employment equity in that employer’s
workplace. Section 20 (2) states:
‘
(2)
An employment equity plan prepared in terms of subsection (1) must
state-
(a)
the
objectives to be achieved for each year of the plan;
(b)
the
affirmative action measures to be implemented as required by section
15 (2);
(c)
where
underrepresentation of people from designated groups has been
identified by the analysis, the numerical goals to achieve the
equitable representation of suitably qualified people from designated
groups within each occupational level in the workforce, the
timetable
within which this is to be achieved, and the strategies intended to
achieve those goals;
(d)
the
timetable for each year of the plan for the achievement of goals and
objectives other than numerical goals;
(e)
the
duration of the plan, which may not be shorter than one year or
longer than five years;
(
f)
the
procedures that will be used to monitor and evaluate the
implementation of the plan and whether reasonable progress is being
made towards implementing employment equity;
(g)
the
internal procedures to resolve any dispute about the
implementation of the plan;
(h)
the
persons in the workforce, including senior managers, responsible for
monitoring and implementing the plan; and
(i)
any
other prescribed matter.’
[36]
In
Barnard,
it was said that:
‘
The
next question beckoning is whether the manner in which a properly
adopted restitution measure was applied may be challenged.
The answer
must be yes. There is no valid reason why courts are precluded from
deciding whether a valid Employment Equity Plan
has been put into
practice lawfully. This is plainly so because a validly adopted
Employment Equity Plan must be put to use lawfully.
It may not be
harnessed beyond its lawful limits or applied capriciously or for an
ulterior or impermissible purpose.
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.’
[10]
[37]
The application of an employment equity plan must be in accordance
with its prescripts. There must be a correlation between
the
abilities of the beneficiaries and the job they are required to
perform. It must be applied to advance its legitimate purpose.
[38]
I agree with Mr Ngcukaitobi that the validity of the employment
equity plan and the National Instruction was not challenged
by the
respondent. The respondent’s case was that she was unfairly
discriminated against and that the employment equity plan
was
implemented incorrectly in her case. The court
a quo
was
therefore wrong to review the employment equity plan under
circumstances where the validity of the plan was not challenged
and
where there was no proper case made out for its review. In
Barnard,
Moseneke ACJ stated:
‘
With
respect, that court misconceived the issue before it as well as the
controlling law. It was obliged to approach the equality
claim
through the prism of s 9(2) of the Constitution and s 6(2) of the
Act. This is because the employment equity plan was never
impugned as
unlawful and invalid. It was not open to the court to employ the
Harksen
analysis of unfair discrimination, which presumed the application of
the Employment Equity Plan to be suspect and unfair. At stake
before
that court was never whether the employment equity plan was
assailable, but whether the decision the national commissioner
made
under it was open to challenge.”
[11]
[39]
It was not open to the court
a quo
to review the employment
equity plan or the National Instruction.
[40]
The Labour Court also erred in finding that Phahlane’s
explanation that the inherent requirements of the job precluded
the
respondent from being appointed was an afterthought. It was common
cause that when Phahlane called Bester he raised the concern
that the
post was essentially an operational one whereas the respondent had
mainly support experience. The National Instruction
is also clear on
the issue of inherent requirements. Clause 8 thereof reads as
follows:
‘
1.
The members of the selection panel must consider all the applications
on the basis
of-:
a.
The
inherent requirements and core functions of the advertised post;
b.
The
ability and potential of the applicant to function in the post;
c.
The
status of every applicant as provided for in the
Employment Equity
Act;
d
.
The
representivity of the relevant division or province at the salary
level that is applicable to the post.’
[41]
The service delivery objective of the post must logically include the
inherent requirements of the job. That was indeed one
of the stated
reasons why the respondent was not appointed.
[42]
The court
a quo
seemingly lost sight of the fact that the
provincial panel only made recommendations to the National
Commissioner. The National
Commissioner was however not bound by the
recommendation. The National Instruction states the following in this
regard:
‘
The
National Commissioner may approve the appointment of a candidate
subject to the to the conditions set out in paragraph 13-
a.
After
he or she has taken all the relevant information into consideration;:
b.
After
he or she has consulted with all stakeholders, if he or she deems it
necessary; and
c.
If
he or she is satisfied that the candidate is in every respect
suitable to fill the post.
If
the National Commissioner does not approve the appointment of the
recommended candidate, he or she may consult with the relevant
deputy
national commissioner, divisional commissioner or provincial
commissioner or the selection panel if he or she deems it necessary,
and either appoint another candidate of his or her choice from the
recommended list submitted by the panel, or direct that the
post be
re-advertised.
The
National Commissioner is under no obligation to fill a post.
The
reasons for any decision taken by the National Commissioner must be
recorded.’
[12]
[43]
The national panel did not reject the scoring of the provincial
panel. It decided to appoint the second candidate despite the
fact
that the respondent obtained a higher score, as it was entitled to
do. There was no need for the national panel to refer the
matter back
to the provincial panel for a re-examination by it or a differently
constituted panel, because it had all the information
before it and
it was in any event not bound by the recommendation.
[44]
There was also no need for the national panel to interact with the
candidates. There is no such requirement in the National
Instruction.
There was also no evidence that the results of the assessment centre
were nullified. In fact, Phahlane testified expressly
that they
accepted the scores of the Provincial Panel but were sceptical of
Bester’s scores.
[45]
The Labour Court’s criticism of the National Panel for taking
the representations which the respondent made two years
before this
process into consideration is misplaced. The National Commissioner is
enjoined to take all relevant information into
consideration and he
or she must be satisfied that the candidate is in every respect
suitable to fill the post. The respondent
had stated categorically
albeit two years earlier that she had never applied for a post as a
Station Commissioner (which is essentially
an operational post) and
had no intention of doing so in the future. That, in my judgment, is
indeed a relevant factor to consider.
Not only did the respondent say
that she has no passion for the operational side of the job but she
also said she would not apply
for such a job in the future.
[46]
The court
a quo
totally misunderstood paragraph 10(8) of the
National Instruction. That paragraph relates to the assessment centre
and not to the
National Commissioner. The National Commissioner may
consider any relevant information.
[47]
The court
a quo
’s conclusion that the targets constitute
an absolute barrier against the employment of Indian women by the
SAPS is also,
in my view wrong. The court
a quo
misconstrued
the evidence. It conflated the absence of Indian females on level 14
in the SAPS employment profile with the fact that
the ideal
allocation for Indian females on level 14 in Gauteng Province, taking
the resource allocation guide into consideration
was zero. The equity
plan did not proscribe the appointment of Indian females. What the
court
a quo
misunderstood was the fact that had there been
more posts on level 14 in Gauteng the formula might have yielded a
different result
that would have made provision for Indians or Indian
females. It was common cause that two Indian females were appointed
on level
14 in KwaZulu Natal because the requirements of the
respective business units provided for such appointments. This also
showed
that the employment equity plan was not an absolute barrier
against the employment of Indian females.
[48]
The court
a quo
found that the letter dated 26 March 2006,
relating to the Cabinet resolution took precedence over the
employment equity plan.
It said the following:
‘
It
is to be noted that this adoption of the Cabinet resolution and the
instruction issued was regardless of the fact the Equity
Plan of 1
January 2007 – 31 December 2010, stipulates a 70: 30 ration in
the appointment of men and women. That Plan then
was changed and
unilaterally so and by means of fiat. In effect, SAPS amended the
formula that is set out in the Equity Plan. In
the circumstances, it
is difficult to understand why in the case of the Applicant, here and
now, SAPS insist on the use of a construct
and criterion that was
repudiated.’
[49]
The evidence makes clear that the equity plan was not amended by the
letter or Cabinet’s resolution. Colonel Ramathoka’s
testimony was to the effect that the Minister of the South African
Police Service as the executing authority did not authorize
the
amendment of the equity plan and secondly that the plan was a measure
that was approved in terms of the Act after extensive
consultation.
It may therefore not be amended unilaterally. The court
a quo’
s
finding that the plan was changed is therefore not correct. The plan
was adopted for five years. It was not changed. In any event,
the
letter did not change but confirmed the 70/30 ratio. It was also
demonstrated that the numerical targets even on a 50/50 ratio
would
not have provided for an Indian female to be appointed. The Cabinet
resolution was properly incorporated in the subsequent
plan.
[50]
General Bester’s testified that the Provincial Panel’s
decision to appoint the respondent was based on the 50/50
resolution
and not in terms of the equity plan. She further testified that the
Provincial Panel did not have the equity plan before
it when it made
its recommendation. How the Provincial Panel came to the conclusion
that the recommendation of the respondent would
“address gender
equity” is not clear. In terms of the National Instruction, the
selection panel must indicate to what
extent employment equity will
be promoted by the implementation of the recommendation. I am not
surprised that this was not done
by the Provincial Panel because it
could not be done without the employment equity plan or a proper
understanding thereof which
Bester by her own admission did not
possess.
[51]
The national panel came to the conclusion that the recommendation of
the respondent, based on the equity plan would not enhance
employment
equity. This decision was neither arbitrary nor capricious. It was
rational and reasonable based on the targets in the
employment equity
plan.
[52]
It is not in dispute that Maswanganyi had more experience than the
respondent. It was also not contested that his experience
is
predominantly in the operational sphere. The service delivery
objectives of the post were predominately operational. The core
functions of the Cluster Commander were set out in the advertisement
for the post. They were:
‘
Directly
accountable to the relevant Provincial Commissioner, the candidate
will ensure excellent service delivery through effective
cluster
management at provincial level to meet organizational
responsibilities as required by the Constitution of the RSA, 1996
(Act no 108 of 1996), which includes ensuring visible policing
services within a demarcated cluster,
ensuring
detective service investigations within a demarcated cluster,
managing the Cluster Crime Combatting Forum manage a Cluster
Support
Services Forum, ensuring information (intelligence products) provided
by Crime Intelligence (CIS) is managing operational,
plans and other
administration related functions ensuring major events/specific
crimes are policed in co-ordination with
other policing agency and
role players, proper management and utilization of all resources
allocated to the immediate post environment
in accordance with
relevant directives and legislation.’
[53]
The respondent admitted two years earlier that she lacked the
requisite passion, training, skill and inclination to function
in an
operational environment while Maswanganyi was engaged in the
operational sphere for practically his entire career. It goes
without
saying that the appointment of Maswanganyi would be more consistent
with the service delivery objectives of the SAPS because
he would be
able to function optimally in such an environment.
[54]
In my view, the reasons given by the National Commissioner for
appointing Maswanganyi are consistent with the lawful purpose
of the
equity plan, rational and reasonable and in accordance with the
National Instruction.
[55]
The respondent has since resigned from the SAPS. I am of the view
that fairness and the law dictate that no costs order should
be made.
[56]
I therefore make the following order:
a.
The
appeal succeeds with no order as to costs.
b.
The
order of the court
a
quo
is set aside and replaced with the following:
i.
The
claim is dismissed with no order as to costs.
_______________
C. J. Musi JA
Murphy
et
Kathree-Setiloane AJJA concur in the judgment of Musi JA
APPEARANCES:
FOR THE
APPELLANT:
Adv T Ngcukaitobi and Adv N Muvangwa
Instructed by State Attorney
FOR THE FIRST
RESPONDENT:
Adv Beaton SC with Adv Prinsloo
Instructed by Du
Toit Attorneys
[1]
National Instruction 3 of 2000 sets
out the composition of the assessment centre, preparation thereof,
how assessments should
be conducted, the evaluation process and how
marks for the key performance areas ought to be allocated.
[2]
55 of 1998.
[3]
Paragraph 11 (2)
and (3) of the National Institution reads as follows:
“
2.
The selection panel must indicate to
what
exten
t
employment equity will be promoted by the implementation of its
recommendation. If the appointment of the recommended candidate
will
not promote representivity in the component, division or province at
the level of the advertised post, a full motivation
must be
submitted together with the recommendation.
3.
A candidate who, on average, obtained the highest score in the
assessment or
was recommended for appointment, is not entitled to be
appointed in the advertised post or any other post.”
[4]
SAPS v
Solidarity obo Barnard
2014
(6) SA 123 (CC).
[5]
Unreported
judgment by Waglay JP and Davis JA delivered on 10 April 2015.
[6]
2004 (6) SA 121
(CC).
[7]
At para 37.
[8]
Barnard
at para 33.
[9]
Bar
n
ard
at para 38.
[10]
Barnard
at paras 38 and
39.
[11]
See para 51.
[12]
See paragraph 12
(6) to 9 of the National Instruction. Paragraph 13 deals with the
Employment Contract and the performance Agreement.