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[2011] ZALCJHB 118
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Solidarity obo Louw v South African Police Services and Others (JS 970/2010) [2011] ZALCJHB 118; [2012] 6 BLLR 637 (LC) (6 July 2011)
SOLIDARITY obo M S LOUW v SA POLICE SERVICE THE
MINISTER OF POLICE, N.O THE NATIONAL COMMISSIONER OF THE SAPS K.
NAIR. Case NO:
JS 970/2010. Application. Discrimination on basis of
race and gender. Employment Equity Act. Application dismissed.
IN THE LABOUR
COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASENO: JS
970/2010
In the matter
between:
SOLIDARITY obo M
S LOUW
….......................................................
Applicant
AND
SA POLICE SERVICE
….............................................................
1
st
Respondent
THE MINISTER OF
POLICE, N.O.
….......................................
2
nd
Respondent
THE NATIONAL
COMMISSIONER OF THE SAPS
….........
3
rd
Respondent
K. NAIR
…......................................................................................
4
th
Respondent
JUDGMENT
Cawe AJ
Introduction
The present
application, brought on behalf of
Mr M S Louw
by
SOLIDARITY
,
emanates from the decision of the
South African Police Service
(hereafter referred to as the SAPS) to appoint
Ms Nair
(hereafter referred to as the Fourth Respondent). The Applicant
seeks to have the Fourth Respondent’s appointment set aside
on
the grounds of unfair discrimination.
The essence of the
dispute between the parties is encapsulated in paragraphs 1 and 2 of
the Applicant’s main Heads of Argument.
It reads as thus:
The
critical issue upon which this case turns is whether or not the
Respondents’ decision to prefer the Fourth Respondent
to
fill post 2650 and to reject the recommendation of the interview
panel was in compliance with the provisions of the
equity plan in
force at the time.
If
the decision was not in compliance with the plan, it follows that
the decision is bad and must be set aside.
The Applicant’s
Statement of Claim sets out the relief sought, in paragraph 7, as
follows:
An
order that the Respondent unfairly discriminated against the
Applicant on the grounds of race and gender.
An
order directing the Respondents to appoint the Applicant to position
of Colonel in post 2650, or to any suitable vacant post
of similar
rank within the component, with retrospective effect to 1st March
2010
An
order directing the Respondent to compensate the Applicant with an
amount equivalent to the difference of the salary he has
earned as
from 1
st
of March 2010 and the salary he would have
earned had he been promoted then.
ALTERNATIVELY
An
order directing the Respondents to pay the applicant compensation in
the amount that the Court deems fit to grant.
Directing
the Respondent to take steps to prevent the same unfair
discrimination or a similar practice occurring in the future
in
respect of other white male applicants.
Publication
of the Court’s order in the event of the Applicant being
successful.
Such
further and/or alternative relief as the Honourable Court deems fit
to grant.
The relevant
facts
The facts upon
which the Applicant relies in evidence are the following:
On the 4
th
of December 2009, post 2650, being the position of Senior
Superintendent: Section Commander: Custody and Complaints Management:
Community Services at the division Visible Policing together with
various other positions were advertised and the Applicant duly
applied for the position.
At the relevant
time, the Applicant was employed as Lieutenant Colonel at the
Visible Policing unit of the Crime Prevention component.
The Applicant is a
white male who commenced employment at the SAPS on the 5
th
January 1978. He currently earns a gross salary of R24 718.25 per
month.
The Applicant,
together with six other candidates, was shortlisted and was
interviewed on the 28
th
January 2010 by the interviewing
panel consisting of the following members:
Chairperson:
Assistant Commissioner Pienaar
Director Mkhwanazi
Director Van Staden
Director Le Roux
Director Mncadi
Secretary: Captain
Venter.
The panel
recommended three candidates, namely;
M S Louw (the
Applicant) – a white male
Ms K. Nair –
an Indian female
N Nkuna – an
African male.
The recommendations
were handed to the Divisional Commissioner for his recommendation in
accordance with the Promotions Policy.
After the recommendation, the
National Commissioner sat with the panel to appoint a candidate they
deem suitable for the post.
The post applied for by the Applicant
was a post Level 12 (Senior Superintendent).
The National panel
decided not to appoint the Applicant. Instead the Fourth Respondent
was appointed. The Applicant had scored
the highest points of all
the candidates at the interview.
On the 30
th
June 2010, the Applicant lodged a grievance with the SAPS regarding
his non appointment. In his Particulars of Grievance, the
Applicant
sets out in detailed chronological order the posts that he had
applied for and was not successful. He also highlights
the fact that
he had acted in many of those posts, including the instant one,
without getting any permanent appointment.
Paragraph 2.10 of
his grievance summarises the gist of his grievance and reads:
2.10.
Taking all the above mentioned facts into consideration and by not
being appointed in post number 2650, I am of the following
opinion:
2.10.1.
I was the best candidate for the post and should have been appointed.
2.10.2.
In order to improve service delivery in the SAPS, I should have been
appointed.
2.10.3.
I was not treated rationally and fairly and the principals (sic) of
fairness were not kept in mind with my appointment.
2.10.4.
My constitutional right to equality was ignored.
2.10.5.
I was grossly and undeservedly discriminated against.
2.10.6.
No due consideration was given to my particular circumstances and I
was thereby adversely affected.
2.10.7.
Contrary to the letter and spirit of the Constitution of South
Africa, no due regard was given to my right of dignity and
in was not
respected.
2.10.8.
I was discriminated against on account of my race and gender,
although my non-appointment was not in line with the current
affirmative action policy.
2.10.9.
Although the selection panel had taken my personal work history and
circumstances into account and, therefore recommended
my appointment,
it was ignored during the final decision not to promote me. These
factors should have been regarded as important
factors.
An investigation
was done and the outcome thereof was outlined on page 3 of the
investigation report. It is summarised as follows:
During
2009, the grievant applied for promotional post, Phase 2-2009/2010,
post number 2650: Custody and Complaints: Community
Services,
Division Visible Policing.
The
grievant was short-listed by the selection panel and during the
interview the selection panel recommended the grievant as
the
successful candidate for the post. However, the Divisional
Commissioner, Visible Policing did not approve the selection panel’s
recommendation and promoted an Indian female instead.
Lt
Col Booysen indicated that the SAPS’s focus during the
promotion process, Phase 2-2009/2010 was addressing representivity
within female employees, and K. Nair was rated as the highest among
the female applicants, hence she was promoted to the post.
In
terms of paragraph 4(11)(iv) of the National Instruction 2/2008,
selection of a candidate must be based on the representivity
of the
relevant Division or Province as the level that is applicable to the
post in terms of the Employment Equity Plan of the
relevant business
unit.
In
addition, paragraph 4(12)(b) further stipulates that the Divisional
or Provincial Commissioner must, upon receipt of recommendations,
satisfy himself or herself that the process took place in accordance
with the National Instruction 2/2008 and the includes paragraph
4(11)(iv).
It
is also important for the aggrieved to not that in terms of
paragraph 4(1)(c) of the National Instruction 2/2008, an employee
who has been appointed in an acting capacity in a higher post
neither has a right nor a legitimate expectation to be appointed
in
the relevant post.
CONCLUSION
The
Division Visible Policing maintains its status quo with regards to
the decision taken.
After he received
the outcome of his grievance, the matter was reported to internal
mediation. No consensus was reached at the
end of the mediation. His
main contention, as he testified during the present application, was
that there were more Indian females
appointed already and the Fourth
Respondent’s appointment was irregular.
The Applicant seeks
to challenge his non-appointment as discrimination under the
Employment Equity Act 55 of 1998 (hereafter referred
to as the EEA).
The specific
provision of the EEA that the Applicant wishes to invoke is Section
20 which provides (and was extensively set out
by the Applicant):
A
designated employer
must prepare and implement an employment
equity plan which will
achieve reasonable progress towards
employment equity in that employer’s workforce
An
employment equity plan prepared in terms of subsection 1 must
state:
The
objectives to be achieved
for each
year of the plan;
the
affirmative action measures to be implemented as required by
section 15 (2);
Where
underrepresentation of people from
certain groups
has been identified
by the analysis, the
numerical goals
to achieve the equitable representation
of
suitably qualified people from designated groups within each level
in the workforce,
the timetable
within which this is to be achieved,
and
the strategies intended to achieve these goals;
The
timetable for each year
of the
plan for the achievement of goals and objectives other than
numerical goals;
The
duration of the plan, which may not be shorter than one year or
longer than five years;
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;
The
internal procedures to resolve any dispute about the
interpretation or implementation of the plan;
The
persons in the workforce, including senior managers, responsible
for monitoring and implementing the plan; and
Any
other prescribed matter.
For
purposes of this Act, a person may be suitably qualified for a job
as a result of any one of, or any combination of the
person’s-
Formal
qualifications;
Prior
learning
Relevant
experience; or
Capacity
to acquire, within a reasonable time, the ability to do the job.
When
determining whether a person is suitably qualified for a job, an
employer must-
Review
all factors listed in subsection (3); and
Determine
whether that person has the ability to do the job in terms of any
one of, or any combination of those factors
In
making a determination under subsection (3), “an employer may
not unfairly discriminate on a person solely on the grounds
of lack
of relevant experience.
An
employment equity plan may contain any other measures that are
consistent with the purposes of this Act.”
The Applicant
concluded his submissions by contending that the SAPS, as a
designated employer under the EEA, did not comply with
its own
equity plan. The target on representivity in relation to Indian
females had already been achieved. On the other hand,
the Respondent
argued that the Applicant was not overlooked solely because of his
race. The rationale for overlooking the Applicant
was done in the
process of the SAPS exercising its managerial prerogative in
deciding which candidate to appoint. The mere fact
that a candidate
comes top at an interview does not guarantee automatic appointment
to that position. The prerogative lies with
the National Police
Commissioner.
The Respondent
submitted that at the time the decision was made, White males at
Level 12 were over-represented by nine. The Equity
Plan that applied
between January 2010 and December 2014 required the SAPS to move
towards a fifty (50) per cent representation
of women at higher
levels, such as level 12. The Fourth Respondent is a woman falling
within this category. Respondent’s
case is that the case is
not about race but about gender.
Testifying for the
Respondent,
Johannes Kgomotso Phahlane
(Divisional Commissioner: Personal Services at the
relevant time) drew the Court’s attention to the provisions of
the National
Instruction 2/2008 (Grade Progression and Promotion of
Employees of the Service to post levels 2 to 12 and Bands A to MMS).
The
relevant paragraphs to which he referred are (c), (f) and (i)
which read:
The
promotion
of employees to level 8 or Band C and higher levels
or
bands
must be submitted to the National Commissioner for
consideration with the recommendation of the Divisional or
Provincial Commissioner
concerned.
The
National, Divisional or Provincial Commissioner may accept or reject
the finding and recommendations of an evaluation panel.
If the
National, Divisional or Provincial Commissioner does not approve a
recommendation of an evaluation panel, he or she must
record the
reason for his or her decision in writing.
If
the National Commissioner does not approve the
promotion
of a
recommended candidate, the National Commissioner must consult with
the relevant Deputy National Commissioner, the Divisional
or
Provincial Commissioner, or the evaluation panel and either promote
another candidate of his or her choice from the preference
list
submitted by the evaluation panel, or direct that the post be
re-advertised.
He sat on the
National Panel that decided to appoint the Fourth Respondent as
opposed to the Applicant. He echoed what was held
by the
investigation team regarding an officer’s acting in a
particular post. This appears earlier in this judgment.
On the question of
the fifty per cent goal by the First Respondent, Phahlane testified
that it did not mean that men would never
be appointed. It only took
into consideration that there were more males already appointed and
appointing the Applicant would
have worsened the situation. There
was already a seventy-one per cent male representivity as opposed to
twenty-nine per cent
women. Moreover, there was only one Indian
female on the relevant band. Phahlane also added that the Fourth
Respondent was suited
for the position as she had the right
qualifications.
Answering
questions, during cross examination, Phahlane pointed out that the
panel did not consider what Sutherland termed “the
absolute
barrier” to white males as they were not considering Mr Louw
as a candidate before them. The panel did not even
have to consider
the Applicant’s personal circumstances as he was not a party
before them. They were only dealing with
the Fourth Respondent’s
application.
General Lamoer,
testifying for the SAPS, pointed out that although the target
Indian females was one (1) and had already been met there was the
gender question to be considered. The Fourth Respondent is a female
and was thus preferred to the Applicant.
Analysis
In his closing
argument, the Applicant abandoned his earlier submission that the
Respondent’s equity plan was invalid. Now
all that the Court
is called upon to decide is; first, whether or not the equity plan
was complied with and whether the targets
set in the plan had
already been met; secondly, whether or not a holistic appreciation
of the candidates was conducted and thirdly,
whether or not what
happened violated the Applicant’s dignity.
The claim by the
Applicant that the equity plan of the employer was not complied with
is based on what he perceives as discrimination
against him based on
his race and gender. To deal with his submissions in this regard,
one has to put his case in the context
of the EEA and the
Constitution of the Republic of South Africa Act 108 of 1996 (the
Constitution). Both the Constitution and
the EEA provide for the
equity and non-discrimination in the workplace.
The EEA provides
for suitably qualified people from designated groups to have equal
employment opportunities and be equitably
represented in all
occupational categories and levels in the workplace of a designated
employer (section 15).
The SAPS, as a
state organ, is a designated employer. The EEA also makes it
obligatory for designated employers to develop and
implement equity
plans. In the instant case, the Applicant seeks to argue that by
appointing the Fourth Respondent as opposed
to himself, the employer
did not comply with its own equity plan as there was an
over-representation of Indian females in the
contested level.
The equity plan of
the SAPS at the relevant time reflects that the male to female ratio
at the level 12 salary band was 71.67
per cent to 28.33per cent. The
ideal that the SAPS was striving for was 50 per cent to 50per cent.
According to the
breakdown of the equity plan, Indian females were over-represented
in this band. The question that has to be
asked is what was
considered in the appointment of the Fourth Respondent. Was it
ethnic group, gender or race (taking into consideration
that so
called Indians are Black)? It is clear from the evidence of both
Phahlane and Lamoer that the National Selection panel
considered the
gender of the Fourth Respondent in their appointment. Now one has to
consider whether this went against the spirit
of the SAPS’s
equity plan as alleged by the Applicant. Were the actions of the
National Panel discriminatory, unfair and
based on his race and
gender?
To answer this
question, one has to look at the provisions of section a(3) of the
Constitution which stipulates that:
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.
A cursory glance of
the above provisions would lead one to believe that the Applicant
was discriminated against on the basis of
his race and gender.
The next
consideration would be whether the discrimination against the
Applicant was unfair or not. The relevant provisions of
the
Constitution in this regard is section (5) which reads:
Discrimination
on one or more grounds listed in subsection (3) is unfair unless it
is established that the discrimination is fair.
The answer to this
question lies in the demographics of the SAPS. In a scenario where
the representivity of males is 71per cent
as opposed to 28.8per cent
females, it is inconceivable that yet another male had to be
appointed to the position currently occupied
by the Fourth
Respondent. Here we are dealing with a White male who is pitted
against a Black female (in the broader sense).
When race is
considered, Ms Nair, the Fourth Respondent, is a female despite her
Indian ethnic group.
The Applicant’s
counsel did not address the Court on how it would be equitable to
appoint the Applicant to the position
whereas White males at salary
level 12 were already represented by 9. His argument centres on what
he perceives as the Respondent’s
eagerness to reach the ideal
50 per cent representation of females, at the applicable salary
level, at any cost.
The Fourth
Respondent’s appointment has to be subjected to the provisions
the National Instruction 2/2008 (Grade Progression
2 to 12 Bands A
to MMS). The relevant paragraphs in this regard are 8(b) and (h)
which lay out what should be considered when
dealing with the issue
of equity in promotions.
8(b) provides:
“
A
chairperson of a panel must at all times ensure that the equity
statistics of the relevant business unit are presented before
the
panel to ensure that employment equity is taken into account and
supported. A panel must, in considering the applications
for
promotion,
promote equal opportunities, fair treatment, employment equity and
advance service delivery by the Service.”
and
8(h) provides:
“
The
promotion
of a candidate should add value to service delivery and panels must
therefore ensure that recommended candidates display the
necessary
competence
or potential and that they meet the
inherent
requirement of the job
.”
The actions of
General Lamoer cannot be faulted when one considers the provisions
of section 8(supra). The Fourth Respondent was
deemed also suitable
for the position. She was found to be adequately qualified and this
met the inherent requirements of the
job. She was only 1.3 points
lower that the Applicant when they were scored. She is a Black
woman. Her appointment would not
jeopardise service delivery in the
SAPS.
The Applicant’s
counsel sought to rely on the case of
Solidarity on behalf of
Barnard v SA Police Service (2010) 31 ILJ (LC)
to prove that
the Applicant was sacrificed for the sake of addressing gender and
race. The present case is distinguishable from
Barnard’s in
that in the Barnard case no-one was appointed whereas in the instant
case a competent and suitably qualified
woman was appointed. It was
not, as in the Barnard case, a matter of the Applicant not being
appointed and the position left
vacant.
One also has to ask
two further questions regarding the appointment of the Fourth
Respondent. The questions are: Firstly; did
the appointment of the
Fourth Respondent “fly in the face” of the service
delivery imperatives of the SAPS? Secondly;
Was the SAPS prejudiced
in its mission of having a visible police force by the appointment
of the Fourth Respondent? The answer
to both questions has to be in
the negative as a member of an under represented gender was
appointed.
Another crucial
point to consider is whether the appointment of the Fourth
Respondent constituted a gallop towards the 50 per
cent female
representivity goal of the SAPS equity plan at the expense of the
Applicant. The appointment of one Black (Indian)
woman would not
result in the scales being balanced between the sexes and races.
White males are over-represented by 9. This
cannot be said of Indian
women. The demographics in the relevant category remain skewed in
favour of White males even after the
Fourth Respondent’s
appointment. Unlike the
Willemse v Patelia No & others
[2007]
2 BLLR 164
(LC)
where the Court concluded that the acting
director-general had failed to apply his mind, in the present case
there were deliberations
right up to the highest echelons of the
SAPS regarding the Fourth Respondent’s appointment. In the
Willemse case (supra)
the court concluded that the employer had
applied affirmative action in an arbitrary and unfair manner. In the
present situation
both the Applicant and the Fourth Respondent were
evaluated holistically and a just and equitable decision was
reached.
In his address to
the Court, during his closing argument, Mr Sutherland refers to
Du
Preez v Minister of Justice and Constitutional Development and
others (2006) 27 ILJ 1811 (SECLD)
as the critical decision in
regard to absolute barriers. One should not lose sight of the fact
that in that case, the Applicant
was much more experienced than his
competitors. This distinguishes that case from the instant one as in
the instant case the
Fourth Respondent and the Applicant are both
very experienced. Even the scores at the interview are very
marginally apart.
The Applicant
believes that his non appointment impaired his dignity because his
personal circumstances were not dealt with and
his application was
not properly dealt with. His counsel actually argued that the
Applicant was treated very shabbily. One understands
the Applicant’s
non promotion for 15 years but this can hardly be categorised as
undignified. He applied, was short listed
but not appointed. All
this points to the fact that his circumstances were considered.
These include the fact that he is a White
male who had applied for a
level 12 position which happens to be saturated with White males.
Equity is supposed to address the
inequalities of the past. This is
what happened in the present case.
I fail to
understand how the Applicant’s grievance was dealt with in a
‘ritualistic’ and insulting manner as
suggested by
Applicant’s counsel in his closing arguments.
All relevant facts
were considered including the Applicant’s experience and
qualifications. That is how, as I understand
it, he was shortlisted
and scored the highest points. He only lost because of the racial
demographics at level 12.
Conclusion
I have considered
the submissions of both counsels for the parties. I have perused the
documentation of the parties and have found
no bad faith in the
actions of the Respondent herein.
I therefore am not
persuaded that that decision not to appoint the Applicant, and to
appoint the Fourth Respondent, was not made
in accordance with the
SAPS Equity plan. The SAPS selection panel diligently considered all
the applicants who were short listed
and came up with an equitable
decision. The Application, therefore, stands to fail.
Both parties
concede that costs should not follow the result. I agree with this
approach in view of the continuing relationship
between the parties.
In the
circumstances, I make the following order.
1. The Application
is dismissed.
2. There is no order
as to costs.
Cawe AJ (Acting
judge of the Labour Court)
Date of Hearing:
2011-06-02
2011-06-03
2011-07-06
Date of
Judgment:
Appearances
For the applicant:
Advocate Sutherland SC
Instructed by:
Serfontein
Viljoen & Swart Attorneys
For the
respondent: Advocate
Ngcukaitobi T
Instructed by: The
State Attorney
15