Naidoo v Minister of Safety and Security and Another (JS 566/2011) [2013] ZALCJHB 19; [2013] 5 BLLR 490 (LC); 2013 (3) SA 486 (LC); (2013) 34 ILJ 2279 (LC) (15 February 2013)

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[2013] ZALCJHB 19
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Naidoo v Minister of Safety and Security and Another (JS 566/2011) [2013] ZALCJHB 19; [2013] 5 BLLR 490 (LC); 2013 (3) SA 486 (LC); (2013) 34 ILJ 2279 (LC) (15 February 2013)

REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JS 566/2011
In the matter between:
JENNILA NAIDOO
..........................................................................................
Applicant
and
THE MINISTER OF SAFETY
AND SECURITY
.................................
First
Respondent
THE NATIONAL
COMMISSIONER OF THE
SOUTH AFRICAN POLICE
SERVICE
...........................................
Second Respondent
Heard: 20 December
2012
Delivered: 15 February
2013
Summary: appointment
process and procedure and affirmative action measures
___________________________________________________________________
JUDGMENT
SHAIK, AJ
This dispute concerns an
appointment made in the South African Police service for the post
Cluster Commander Krugersdorp. The
Applicant alleges that she
suffered unfair discrimination on the ground of her race and gender.
Background
The South African Police
Service (“SAPS”), on or about the 14 April 2009,
declared and advertised vacancies for several
positions at national
and provincial levels. Amongst the posts advertised, 5 positions
were for Cluster Commander in the Gauteng
region.
The Applicant submitted
an application for post number 09/04/2011, which was the position of
‘Cluster Commander: Krugersdorp’.
She was subsequently
shortlisted for the position.
During June 2009, a
selection panel evaluated the Applicant for the position during a
two-day assessment centre that was conducted
in accordance with the
prescripts of the National Instruction 3/2000. The Applicant was
allocated scores for written appreciation,
a drafting test and
role-play. The total mark allocated to the Applicant was 74, 2% and
she was placed second in the field of
candidates that applied for
the post.
On 22 June 2009, the
provincial selection panel recommended the appointment (or rather
promotion) of the Applicant as the candidate
with the second highest
score and because her appointment would address gender equity. The
candidate with the highest score was
recommended to another cluster
commander position. In the event that she could not take up the
position, T S Maswanganyi was
recommended as the second preferred
candidate and A du Bruin as the third candidate. The total mark
allocated to T S Maswanganyi
was 71, 1% and he was placed fourth
amongst the candidates that applied.
On 24 July 2009, the
national panel did not approve the appointment of the Applicant on
the basis that it would not enhance employment
equity and would not
be consistent with service delivery objectives. The candidate ranked
second in the order of preference,
T S Maswanganyi, was appointed to
the post of ‘Cluster commander: Krugersdorp’ with effect
from 1 August 2009.
Subsequently, the
Applicant lodged an internal grievance and as the matter remained
unresolved, a dispute was referred first to
the bargaining council
and then to the Commission for Conciliation, Mediation and
Arbitration that issued a certificate that
the matter be referred to
the Labour Court for adjudication.
The Applicant alleges
that she suffered unfair discrimination in that the Equity Plan
constitutes an absolute barrier to her appointment
and that the
manner in which the Equity Plan is implemented and targets applied
are inconsistent and arbitrary and therefore
unfair.
The Respondent denies
the appointment made was only on the basis of numeric targets set
out in the Equity Plan and argues that
there was more to it. Even
so, it is not unfair discrimination to take affirmative action
measures consistent with the purposes
of the Equity Act or to prefer
any person on the basis of an inherent requirement of a job.
Summary of evidence
The following facts are
common cause:
Appointments to post
13-15 are regulated by the National Instruction 3/2000. This
instruction provides,
inter alia,
for applications,
requirements for appointments, composition of selection panel,
selection process, evaluation of applications,
the conduct of
assessments, recommendations by a selection panel, the consideration
of recommendations made and contracts of
employment.
[11] The relevant
provisions of the National Instruction referred to are the following:
(a) Section 10.1:
candidates must be assessed in a process involving an assessment
centre and candidates are to be treated in an
objective, fair and
unbiased manner;
(b) Section 10.5: The
assessment centre performance of a candidate must be reflected in the
rating of the candidate in accordance
with the rating system
determined by the national Commissioner;
(c) Section 10.8:
negative information regarding a particular candidate 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 respond to such information.
(d) Section 11.3: a
candidate who obtains the highest score is not entitled to be
appointed to the advertised post;
(e) Section 11.7: if the
national commissioner does not approve the appointment of the
recommended candidate he or she may consult
with the relevant
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 selection panel or direct
that the post be re-advertised;
(f) Section 11.9: the
reasons for any decision taken by the national commissioner must be
recorded.
[12] The SAPS is a
designated employer and in terms of
Section 23
of the
Employment
Equity Act, 55 of 1998
. A designated employer is required by law to
have an Equity Plan in place. At times relevant, an Equity Plan was
prepared and adopted
by the employer for the period 1 January 2007 to
31 December 2010.
[13] This Plan sets out
its purpose, namely:
‘
The
South African Police Service has developed this subsequent Employment
Equity Plan that will span from 1 January 2007 to 31 December
2010
which is geared to:
Promote
the constitutional right of equality and the exercise of true
democracy;
Eliminate
unfair discrimination in employment within the South African Police
Service;
Ensure
proper and effective implementation of Employment Equity within the
South African Police Service to redress the effects
of past
practices;
Achieve
a diverse workforce broadly representative of the South African
community; and
Promote
economic development and efficiency in the workforce.’
To advance these
purposes, and in particular, the purpose of achieving “a
diverse workforce broadly representative of the
South African
community” the Plan sets out numeric targets. The targets are
formulated on the basis of the 2001 Census
Report and in that report
it is said the national population is composed of “79%
Africans, 9.6% White, 8.9% Coloured and
2.5% Indians”. The
numeric targets are so formulated in accordance with this ratio.
The Census Report is
used only for the formulation of targets on the basis of race. It is
not used for the formulation of targets
on the basis of gender. For
whatever reason, and none was advanced, in the equity plan, the
gender target was Male 70% Women
30%.
The 30% target for women
is expressed as follows:
‘
30%
of all posts will be allocated to women as a designated group in
their race groups.” Thus, and to illustrate the application
of
targets, say 10 posts are vacant it will be filled accordingly, for
the African group in mind:
79%
of 10 results in 8 posts available for Africans and of that 8 posts
30% are to be filled by African women, for convenience,
it is said 2
positions of the 8 posts available will be filled by African women.’
The Census Report of
2001 held that women constituted 51% of the population. No reason
was proffered as to why only 30% was formulated
as a target for the
employment of women in SAPS.
The employment of women
in the public service was a concern raised by the then Minister for
Public Service and Administration:
Mz GJ Fraser-Moleketi with the
then Minister of Safety and Security Mr. C Nqakula. On the 31 March
2006, Minister Fraser-Moleketi
wrote to Minister Nqakula and advised
him amongst other things that:
‘
In
reflecting on the success achieved to date in increasing the overall
rate of employment of women in the Senior Management Service
(SMS),
we would need to make progressive decisions to work towards equality.
Strategically aligning with the African Union and
our international
commitments, Cabinet approved a 50% equity target for women at all
levels of the sms by March 2009.’
[Her
emphasis]
This concern and the
decision of Cabinet were communicated to SAPS and its management and
influenced the decision making in promotions
and appointments. On
the 28 April 2009, Divisional Commissioner MA Nchwe addressed a
letter to all Divisional Commissioners,
Provincial Commissioners,
Component Heads, Chairpersons: National Executive Council of the
Women’s Network, and Women’s
Network Champions wherein
he stated:
‘
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.’
And again, it also finds
expression in an instruction issued by the Divisional Commissioner J
K Phahlane on the 20 October 2009
to all Deputy National
Commissioners, Divisional Commissioners, Heads of Departments and
Section Heads in the following terms:
‘
POST
PROMOTIONS: PHASE 1-2009/10: LEVEL 8 AND BAND C AND HIGHER LEVELS
Your
recommendations for promotions to level 8 and band C and higher
levels for the phase 1-2009/10 promotion process refers:
2.
Divisional/ Provincial Commissioners and Component Heads are hereby
directed to review their promotion to level 8/band C and
higher
levels recommendations for the phase 1-2009/10 to realize the 50/50
male/female gender distribution as directed by the National

Commissioner in line with government policy.
3.
Divisional/Provincial evaluation committees must be reconvened to
revisit the recommendations for promotions for level 8/Band
C and
higher levels to achieve the 50% female representivity per level,
without compromising /condonation of the requirements.
4.
Your revised recommendations (reflecting at least 50% female
representivity per level) must reach this office not later than
28
October 2009. In view of the fact that the phase 1 promotion process
needs be finalized, no extension will be granted.
5.
No deviation from this instruction will be entertained.’
On or about 22 June
2009, the Provincial Panel, made up of Provincial Commissioner
P.Naidoo, Deputy Provincial Commissioner G
H Bester and Deputy
Provincial Commissioner R.N. Mdluli made the following
recommendation:
‘
The
panel recommends Director J Naidoo as the first candidate due to the
fact that the candidate with the highest mark is already
recommended
for post2009. In the event that she cannot take up the post, Director
TS Maswanganyi is recommended as the second candidate
and Director A
Du Bruin as the third candidate. The recommendation will address
gender equity.’
The recommendation of
the provincial panel served before a national panel comprised of the
Acting National Commissioner TC Williams,
Deputy National
Commissioner LCA Prius and Deputy National Commissioner HM Hlela and
on the 24 July 2009, this panel made the
following decision:
‘
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.’
It is this decision and
the manner in which it is made that is the subject of the attack.
To summarise: the
management prerogative was circumscribed by firstly, the National
Instruction 3/2000; secondly, the Employment
Equity Plan for the
period 1 January 2007 -31 December 2010; and thirdly, the Cabinet
Decision on gender representivity which
was adopted by SAPS and
given effect thereto by way of instruction issued by Divisional
Commissioner: Career Management MA Nchwe
and Divisional
Commissioner: Personnel Services J K Phalane.
I turn to deal with the
evidence received and the versions presented by the parties.
For
convenience, the summary of evidence set out below is culled from
the heads of argument and accords with the testimony received.
The Applicant’s
Case
The Applicant called
General Bester to testify as a witness. General Bester was a member
of the provincial panel that interviewed
and assessed the Applicant
and that made the recommendation that she be appointed to the
position of Cluster Commander: Krugersdorp.
General Bester was the
Deputy Provincial Commissioner: Gauteng and the recruitment,
selection and promotion of SMS members were
part of her
responsibilities.
Briefly, it was the
testimony of General Bester that:
The National Instruction
3 of 2000 regulates the procedures to be followed for the
appointment of individuals on salary level
13 – 15;
The selection panel
would consider the inherent requirements and core functions of an
advertised position, the ability and potential
of the applicants to
function in the position and the status of every applicant in terms
of employment equity
Every candidate is
assessed fairly and objectively and the panel is not supposed to put
matters to candidates that are not related
to the inherent
requirements of the post and any negative information regarding a
candidate may not be taken into account if
the information has not
been put to the candidate during the process and he or she is
granted an opportunity to respond to that;
Each candidate was
assessed by an assessment centre and that entails a written
appreciation, crisis management, role play and
presentation. This is
provided for in National Instruction 3 of 2005;
For the post of Cluster
Commander: Krugersdorp the results produced at the Assessment Centre
were the following:
MM MOTLHALA 77.2% Male
1st
J NAIDOO 74.2% Female 2nd
JT PHARASI 71.5% Male 3rd
TS MASWANGANYI 71% Male
4th
A DU BRUYN 65% Male 5th
NP MASIYE 64.1% Female
6th
D BAIJNATH 61.6% Male 7th
The Applicant’s
overall score on all the assessment criteria was 74,4% and was the
second highest of all the candidates
and General Maswanganyi’s
score was 71,1% and he was placed 4th;
The same panel
interviewed the positions for Cluster Commander: Johannesburg
Central, Hillbrow, Krugersdorp, Orlando and Sebokeng
and recommended
two African females, two African males and one Indian female for
appointment. The Indian female recommended was
the Applicant.
The Applicant was
recommended for appointment to the post of Cluster Commander:
Krugersdorp because the candidate with the highest
mark was already
recommended for another position and the Applicant had the second
highest score and her appointment would have
enhanced race and
gender equity;
The Applicant had the
ability, potential, qualifications and experience to function in the
position of Cluster Commander and she
was the best candidate to be
recommended;
The Provincial Panel
firstly considered the merit of the Applicant and her ability to
function in the position and the second
consideration was race and
gender equity;
The
provincial equity experts, the career management unit, provided the
provincial panel with a document titled Gauteng Equity
Allocations
for Externally Advertised Posts Phase 1/2009/10 Salary Level 14
indicating that in Gauteng province and for the positions
of Cluster
Commanders the ideal allocation would be one African male, two
African females, one Coloured female and one Indian
female and this
was considered by the panel. It is important to mention here that
the Respondents challenge the correctness of
the equity target set
out in this document and as it will be mentioned elsewhere for
convenience, this document will hereinafter
be referred to as the
Gauteng Equity Allocation
.
Also it needs be
mentioned that
General
Bester admitted under cross-examination that the provincial panel is
not at liberty to make recommendations contrary to
a determination
by the head office on how the equity allocations were to be
implemented.
T
he provincial
authorities have no discretion to apply such directives in a manner
other than as determined by the national office.
In the view of General
Bester, gender equity was an important consideration, especially in
view of the document received from
the national office dated 28
April 2009 stating that the 50/50 representation on SMS level should
be achieved as the SAPS had
only 21% females on SMS level and this
applied to the positions of Cluster Commander as it was imperative
for SAPS to reach the
50% female target.
Cabinet had approved a
50% equity target for women at all levels of the SMS by 31 March
2009 and the 50% target to appoint females
on SMS level had been
considered by the Provincial Panel and it was one of the reasons for
recommending the Applicant;
The National Panel did
not approve the recommendations of the Provincial Panel in respect
of the Applicant as her appointment
would not enhance employment
equity and would not be consistent with service delivery objectives
and the second recommended candidate,
Maswanganyi, was appointed;
The National Panel
approved and implemented the recommendations of the Provincial Panel
in respect of the other four candidates,
only the recommendation in
respect of the Applicant was not approved;
The Provincial Panel
recommended the appointment of two African females, two African
males and one Indian female as no Coloured
female applied;
In the approved
structure, referred to as the RESOURCE Allocation Guide (RAG) the
current distribution and the ideal representation
for Indian females
all reflected zero Indian females to be appointed. This, she said,
was not a fair reflection of what was needed
in the Gauteng
province;
The Applicant was an
ideal candidate because there were no Indian females on level 14 in
Gauteng, the Applicant had the required
experience and background
and they had to achieve a 50% female target on SMS level and her
appointment would have contributed
to achieving the target;
General Bester received
a phone call from General Phahlane and he asked her why the
Provincial Panel recommended the appointment
of Ndaba (African
female), de Lange (African female) and the Applicant. In respect of
the Applicant she explained to him that
the Applicant was qualified
for the position and that she also addressed gender equity whereupon
General Phahlane responded that
the Applicant is a support person as
opposed to an operation focussed person. She did not agree with that
and referred him to
the Applicant’s CV and to the Provincial
Commissioner. There is a dispute about all that which was discussed
in the telephonic
discussion but it is of no consequence.
The Applicant testified
and it was her case that she joined the SAPS in 1989 as a student
constable and she underwent training
and was transferred to various
units until she was promoted to her current rank in 2001 when she
was appointed as Deputy Area
Commissioner, specifically responsible
for operations and exercised command and control over seven police
stations. Her current
post is that of Provincial Head of visible
policing and she is responsible for visible policing at 141 police
stations within
the Gauteng province. The Applicant provided an
overview of her experience and knowledge, which included both
operational and
support functions.
The Applicant applied
for the contested position because she had 24 years of experience
with the SAPS; she has functioned at all
levels of policing –
station level, provincial level and cluster level; and, most
importantly, she held the position of
Deputy Area Commissioner for
five years and the functions listed as the core functions for the
contested position are the precise
functions she carried out as a
Deputy Area Commissioner. She had the necessary experience in all
the core functions and was competent
to perform those.
She testified that she
had the experience in functional and support environments and had
delivered on all these core functions
associated with the contested
position and did not agree that her appointment would not have
enhanced service delivery. She also
did not agree that Maswanganyi
had more experience.
She was never granted an
opportunity to respond to the notion that her appointment would not
enhance service delivery objectives.
The Applicant was one of the
first people appointed to a position similar to that of cluster
commander and she had seven police
stations reporting to her. She
denied that she would have needed tutoring and would not have been
able to make an immediate contribution.
Her appointment would
have enhanced equity as she is part of a designated group and at the
time the contested position was filled.
There was a drive to appoint
females and there was not a single Indian female General in the
whole country, let alone Gauteng;
The
Section 21
report
for Gauteng for the period March – June 2009, the period
within which the contested position was advertised and
interviewed,
showed a zero allocation for Indian females on level 14 but showed
an overall shortage of 52 Indian females and
a shortage of 17% and
this indicated that there was room for Indian females to be
appointed in Gauteng;
The allocation for
Indian females on the approved structure (RAG) indicated a zero
provision for Indian females, the current distribution
was zero and
the ideal distribution was zero, meaning that a zero was ideal and
that made it impossible for her to progress to
level 14 and beyond;
Two Indian females were
appointed on level 14 subsequently and almost one year later. The
Applicant testified that she could not
understand how Indian females
could not have been appointed when the Employment Equity Plan made
zero provision for Indian females
on level 14; the conclusion the
Applicant drew was that there was a deviation from the Equity Plan
and if that was possible and
she could have been appointed as well.
The Applicant testified
that this has affected her very negatively as she sacrificed 24
years of her life and family for the SAPS
and she has risked her
life for the SAPS.
Respondent’s
Case
Broadly, the
Respondents’ case was that it did not discriminate against the
Applicant on the basis of her gender or race
and deny that their
conduct constituted unfair discrimination. The National Commissioner
appointed Maswanganyi to the contested
position, despite the
recommendation of the Provincial Panel that the Applicant be
appointed and in doing so, he considered the
fact that Africans were
under represented and Indian females had an ideal representation.
The ideal being zero or stated differently
the ideal and the target
provided that no Indian females may be appointed.
Maswanganyi’s
appointment would have addressed the issue of the under
representation of Africans. Maswanganyi had superior
operational
experience compared to the Applicant and he would make a better and
more meaningful and immediate contribution to
service delivery,
whereas the Applicant would have needed tutoring.
The Respondent firstly
called Colonel Ramathoka to testify. He explained that at the time
the contested position was considered,
the allocation for Indians
was 2,5% of the total number of posts that were available in terms
of race and 70% of the 2,5% will
be allocated to Indian males and
30% of the 2,5% to Indian females. This allocation is determined by
having regard to the national
demographic representation of Indians
in the general population as determined by the census report.
Colonel Ramathoka
testified that to diversify the workforce on specific salary level,
positions will firstly be allocated in terms
of race and thereafter
in terms of gender. The 30% (and later 50% allocation) for women is
allocated within their specific race
groups. In other words, the
order of preference and priority as set out in the Equity Plan for
the purposes of affirmative action
was race and thereafter gender.
It was put to Colonel
Ramathoka that equity, applied to both race and gender, and in
respect of gender its importance was underscored
by the Cabinet
decision to pursue a target of 50/50 employment. To this he replied
that ‘[i]t is crucial.’ However,
to explain the variance
between the Cabinet decision and the SAPS Equity Plan, he testified
that the police implemented a 70/30
ratio being quite aware of the
Cabinet instruction and irrespective of it.
And again if the
national demographics were used as a criterion for employment, that
criterion did not apply for the appointment
of women. For women, the
equity target provided for in the Equity Plan was 30% even though
women represent more than 50% of the
general population. He
testified that ‘[a]ll circulars or letters written within the
organisation has to be read with the
available polices and precepts.
So based on that, I still stick to what I said earlier on to say
70/30 ratio was applicable up
until it was changed in a subsequent
Employment Equity Plan. And that was the decision taken by the
Executing Authority.’
He conceded that the
Gauteng Equity Allocations is a document produced by SAPS produced
in the provincial office. Nevertheless,
he testified that the
allocation of one (1) Indian Female, as a target for employment
equity appointment, is wrong. It ought
to have been zero. To explain
away the Gauteng Equity Allocations he had this to say: ‘[i]t
seems to me as the equity expert
from head office I still have a lot
of work to do in the Gauteng Province because the calculation and
the way they do things
is totally not in line with the Employment
Equity Plan as well as the instructions from head office.’
In respect of Gauteng
Province, there were 19 positions on level 14 allocated. By the time
the five positions of Cluster Commander
were advertised, the
remaining 14 positions were filled by seven African males, one
Indian male, one Coloured male, two White
males, one African female,
zero Indian females, zero Coloured females and two White females;
The calculation used to
determine the race and gender allocation was explained as follows:
19 positions on level 14 are multiplied
by the national demographic
figure for a specific race group eg 19 positions x 79% Africans = 15
of the 19 posts must be filled
by Africans, then 15 x 70% = 11
positions to be filled by African males minus the current status of
seven meaning there is a
shortage of four African males.
For Indian females the
calculation is 19 x 2, 5% = 0, 5 positions to be filled by Indians,
then 0, 5 x 30% = 0, 1 Indian females
and that is rounded off to
zero. Of the five available positions 0,125 could go to Indians x
30% gender allocation means 0.037
could be allocated to Indian
females and that is rounded to zero.
Indian females on level
14 were ideal because there was none and the ideal was zero. There
was one Indian male on level 14 but
there ought to be none, whether
male or female as the ideal for Gauteng was zero and no Indian could
be appointed.
He could not respond to
the proposition that equity and representivity on all occupational
levels and categories could not be
achieved if the goal for Indian
females is zero. He merely reverted to the demographics and the
calculations he did on that and
persisted that ‘… the
ideal was zero and it was just like that.’
The witness was also
unable to respond to the proposition that the way representivity for
Indian females are calculated will always
be a percentage too low as
they are such a minority group and it will never be enough to
justify the appointment of one person.
An Indian female could not
have been promoted to level 14 as that would have created an over
representation, despite the fact
that the targets for females in
general were not met.
The entire SAPS
workforce increased from 2006 to 2009 with 29 189 positions and
during the same period the Indian females increased
with 39
individuals, that is 0,133%. Seemingly, the trend revealed that
Indian females were not being appointed. The exchange
between
Counsel for Applicant and Colonel Ramathoka is instructive:
MS PRINSLOO: What is so
wrong in recommending an Indian female when the 70/30 gender equity
had not been reached?
COLONEL RAMATHOKA: There
was not any provision made for the appointment of Indian females
according to the Employment Equity Plan
of SAPS. The ideal is zero.
MS PRINSLOO: But you are
blocking Indian females from promotion completely?
COLONEL RAMATHOKA: We do
not block Indian females, to any promotion, but we have to adhere to
our own policies and precepts as the
organisation, in this regard
being the Employment Equity Plan.
He explained that to the
extent there was an under representation in terms of gender, one had
to address (also) the under representation
of African females and
Coloured females and I got the impression he implied in that order of
preference, regard being had to the
national demographic of the
country.
Colonel Ramathoka
testified the Resource Allocation Guide that featured at page 123 of
the trial bundle summarises the correct
application of the
distribution of posts in the Province of Gauteng at salary level 14.
This document shows that no allocation
was made for Indians (male or
female) and that the status of Indian females, for purposes of the
application of the approved
equity plan at the time, was “ideal”.
In his view, as the employment equity expert, General Bester and the
Provincial
Panel was wrong to rely on the document referred to as
the Gauteng Equity Allocations where it is recorded that there was
provision
for one post to be allocated to Indian females.
The Colonel testified
that during 2010 two Indian females were indeed appointed, one at
Legal Services and one In Kwa-Zulu Natal,
as the implementation
plans for those divisions made provision for the appointment of
Indian females. In making these appointments,
there is no deviation
from the national plan. The witness was, however, unable to show in
the National Employment Equity Plan
where provision is made for the
appointment of two Indian females. It remains an assertion made in
the absence of any evidence
that the implementation plan and
section
21
reports for the two divisions that appointed Indian females,
provided for that.
The only way for the
Applicant to be promoted is for her to apply for a position in a
business unit where Indian females are underrepresented.
The second witness for
the Respondents was General Phahlane. He testified that he wrote the
comment that the Applicant’s
appointment would not enhance
equity and would not be consistent with the service delivery
objectives. This comment, he testified,
was the culmination of the
“deliberations and decisions” of the national panel. He
did not serve on the national
panel as a member or participate in
the deliberations or decisions taken but merely acted as the
recorder and or liaison.
General Phahlane
testified that the representations made by the Applicant in 2007
regarding her transfer to a post were considered
in the
deliberations of the national panel and taken into account in not
making her appointment.
Having regard to the
scoring of Brigadier Maswanganyi, he felt there was unfairness and
had this to say: ‘[t]he panel arrived
at the conclusion that
there was an injustice if you consider the allocation of scores on
knowledge and ability, managerial ability,
experience, relevant
experience of these two candidates.’ He testified that General
Bester opted to underscore Brigadier
Maswanganyi and that was the
reason for the scores attained by Brigadier Maswanganyi. It was a
deliberate effort that he said
that ‘to come to a
predetermined conclusion’ and that ‘there is a specific
panel member that was orchestrating
this.’ He named General
Bester as the culprit.
With regard to the
scoring of candidates by the provincial panel at the Assessment
Centre, he testified that it was the views
expressed by members of
the national panel, there was a bias against Brigadier Maswanganyi
that resulted in him being under scored.
As a result of this belief,
the scoring of the Assessment Centre was not accepted fully. He
testified as follows:
With regard to the
reason for the appointment of Brigadier Maswanganyi he testified as
follows:
‘
In
this particular case the national panel was convinced that someone is
deliberately being overlooked, who (1) has got experience
(2) has got
potential to function, great potential and had a track record of
performance in the post where he was coming from,
and lastly the fact
that his appointment would have enhanced the equity profile of the
particular environment as it is evidenced
in the 50/50 split which I
testified here.’
Lt-General Phahlane
explained the decision-making process when the National Commissioner
considered the recommendation concerning
the Applicant. It was his
testimony that the National Panel was concerned that the
recommendation of the Applicant by the provincial
panel did not
appear to reflect the preliminary view of the National Panel when
that panel was deliberating on the recommendation
in the light of
information available to the National Panel about the two
candidates. Lt-Gen Phahlane was tasked with making
enquiries from
the Provincial Commissioner, in order for the National Panel to
better understand the reasoning and justification
by the provincial
panel.
Lt-Gen Phahlane made
enquiries with General Bester, who was the Acting Provincial
Commissioner at the time. The enquiry to General
Bester was not
limited to the Applicant. It also related to recommendations on two
other clusters. General Bester was unable
to give a proper
motivation to Lt-Gen Phahlane regarding the recommendation of the
Applicant. General Bester could only say that
the provincial panel
had recommended the Applicant.
Lt-Gen Phahlane
testified that the National Panel held the view that T S Maswanganyi
was “miles ahead” of the Applicant,
when taking into
account what the two candidates said about themselves in their
respective CVs. This was also informed by the
National Panel’s
prior knowledge that the Applicant had refused to be moved to an
operational environment; in circumstances
where those members were
also familiar with the work of T S Maswanganyi, including at the
10111 centre.
As General Bester failed
to provide an explanation during her exchange with Lt-Gen Phahlane,
the National Panel became fortified
in its preliminary views and
confirmed the appointment of T S Maswanganyi over the Applicant. The
National Commissioner having
formed the view that T S Maswanganyi
had superior operational experience (based on what the panel members
knew already from the
past, together with information as stated in
his CV).
The National Panel and
the Commissioner disagreed with the provincial panel’s view
that the recommendation would address
gender equity. The National
Panel had regard to the approved structure in terms of the RAG, the
current distribution, and the
under and over representation at
salary level 14 in Gauteng. The Commissioner formed the view that
the recommendation on gender
equity was not sustainable when the
indicated position for Indian female was shown as “ideal”;
together with the
fact that coloured females and African females
were under-represented.
The Commissioner’s
decision was based on the dictates of the equity plan and how it
related to the approved RAG for salary
level 14 in the Province of
Gauteng at the time. That decision was informed by objective
considerations regarding compliance
with SAPS’ equity plan at
the time.
Lt-General Phahlane told
the Court that the decision by the National Commissioner was not
based simply on implementing numerical
targets agreed in the equity
plan and in this regard he mentioned four considerations, namely
(and in that order): the inherent
requirements of the post;
experience of the candidate in the environment; the impact on
service delivery, and equity.
Submissions
The gravamen of the
Applicant is that she suffered unfair discrimination on the basis of
her gender and race. It was submitted
on behalf of the Applicant:
The fact that the
Applicant is an Indian female was an important and convincing
consideration and it caused for her not to be
promoted as her race
and gender would not enhance employment equity.
The discrimination was
unfair in that it was but naked preference which imposed substantial
and undue harm to the Applicant who
is part of a vulnerable minority
and as a member of the designated group and had to be protected and
advanced.
The Equity Plan and the
manner in which targets are to be calculated by use of the national
demographics as a criteria will always
produce a zero target for
Indian females and in the result an absolute barrier is created.
Notwithstanding the
Equity Plan, the appointment of the Applicant was a decision that
was inconsistent, arbitrary and unfair.
The argument advanced by
the Respondent was that the appointment was based on four
considerations, namely and in that order, inherent
requirements of
the post, experience of the candidate in the environment, the impact
on service delivery and equity.
In amplification, so the
argument went, that in the exercise of discretion, the national
panel reached a contrary conclusion to
that of the provincial panel
which conclusion was justified and justifiable. There was no
improper exercise of discretion by
the National Commissioner and in
the absence of justification this court ought not to second guess
the National Commissioner
in the exercise of power vested in him.
It is said that the
considerations taken into account did not rest solely on the numeric
targets. At any rate even if there was
discrimination, such
discrimination was not unfair as it formed part of an affirmative
action measure as envisaged in terms of
section 6
(2) of the
Employment Equity Act. The
targets were flexible and last only for
the duration of the Plan. Even so, the numeric targets represent a
rational programme
aimed at achieving the required demographic
representivity as set out in the equity plan.
Analysis
In general, appointments
and promotions fall within the management prerogative of the
employer. That prerogative is however constrained
by law.
The
Labour Relations Act
No 66 of 1995
requires employers to treat employees fairly when they
apply for promotions and in this regard
section 186
(2) is relevant.
The
Employment Equity Act No 55 of 1998
prohibits unfair
discrimination, inter alia, on the basis of race and or gender in
terms of
section 6.
Whilst acknowledging the
management prerogative this court would nevertheless interfere with
a decision made by a functionary
if it is proved that the decision
maker acted irrationally, capriciously or arbitrarily, was actuated
by bias, malice or fraud
or failed to apply his or her mind or
unfairly discriminated. The
Labour Relations Act No 66 of 1995
requires employers to treat employees fairly when they apply for
promotions and in this regard
section 186
(2) is relevant.
The
Employment Equity
Act No 55 of 1998
prohibits unfair discrimination,
inter alia
,
on the basis of race and or gender in terms of
section 6.
However,
an affirmative action measure, in terms of the Act, to the extent
that it embodies a preference, whether on the ground
of race or
gender, is not unfair discrimination, if it is designed to promote
substantive equality of a designated group.
The essence of
affirmative action is to differentiate and to prefer a member of a
designated group in order to promote and attain
substantive
equality. Its purpose is to redress the effects of past
discrimination and end discrimination and by these means
promote
equality.
I turn to deal with the
submission made by the Respondents and the procedure followed and
reasons given for the non appointment.
Inherent requirements
The submission that the
appointment was based on the inherent requirements of the post is
founded on the evidence of Lt General
Phalane but is not the reason
why he recorded contemporaneously and the reason that the national
panel members signed off on.
The reason that the members of the
national panel advanced is firstly, the appointment of the Applicant
would not enhance employment
equity and, secondly, such an
appointment would not be consistent with “service delivery
objectives.”
I am not inclined to
accept this
post facto
explanation that there were inherent
requirements that precluded the appointment of the Applicant. This
assertion simply is put
out without any explanation whatsoever. What
were the inherent requirements that the Applicant did not meet? He
does not say
so; it is just a phrase he used without explanation or
content or context. The phrase used in this manner is meaningless.
It needs be borne in
mind that Lt. General Phalane did not serve on the national panel;
he was merely a recorder of its decisions.
It is the decision of the
National Commissioner that matters and the reasons that the National
Commissioner puts forward to justify
the decision made. Inherent
requirements were not among the reasons set forth and recorded.
Even so, In
Whitehead
v Woolworths (Pty) Ltd
,
1
Waglay J, as he then was, held that
an inherent requirement implies an “indispensable attribute”
of the job, which
must “relate in an inescapable way to the
performing of the job required”. An inherent requirement is
one that if
not met an applicant would simply not qualify for the
post.
The provincial panel did
not consider that there were any inherent requirements of the job
that the Applicant did not satisfy.
And, they would know if there
was indeed any ‘inherent requirements’.
There is no basis having
regard to the evidence on hand to conclude that there were any
inherent requirements of the job that
the Applicant could not meet.
Experience
Again, this is not a
reason recorded for the non appointment. For the reasons mentioned
above, I do not accept that “experience
of the candidates in
the environment” was a reason for the non-appointment. If
indeed it was, the National Commissioner
and the national panel
members would have said so and it would have formed part of their
comments made and or reasons for the
decision taken.
At any rate the
experience of the Applicant and Brigadier Maswanganyi (as he then
was) was comparable. At the Assessment Centre,
the Applicant scored
7.3 and Brigadier Maswanganyi scored 7.5 - the difference was not
significant but it none the less favoured
Brigadier Maswanganyi.
Another reason Lt.
General Phalane advanced, contending that it was the view of the
National Commissioner and the members of the
national panel, that
some years before, at a time when the Police Service was being
restructured, the Applicant expressed a preference
to perform in a
service environment as opposed to an operating environment. Lt.
General Phalane testified that the national panel
members were aware
of this preference and for that reason too she was not appointed as
the post of cluster commander was an operating
environment post.
But this is not borne
out by the facts of the matter. At the time when the candidature of
the Applicant for the post was considered,
she was serving in an
operational environment and had been doing so for a good many years.
It is objectionable at any rate for
this representation made in the
context of restructuring, to be used as justification for a non
appointment. As a reason, it
sounds contrived. The national panel
did not cite this as their reason for the non-appointment.
The scoring of the
provincial panel on the say so of Lt General Phalane was not
accepted by the national panel. Apparently, according
to him, it
revealed the bias of General Bester. Brigadier Maswanganyi should
have received a higher score and the score he was
awarded was the
product of her manipulation.
There is no evidence and
none that he refers me too that justifies the conclusion to be drawn
that General Bester manipulated
the scoring of candidates such that
the Applicant was awarded a higher score. In fact, with regard to
experience, Brigadier Maswanganyi
received the higher score.
If the national panel
rejected the scoring of the provincial panel, on account of bias,
Lt. General Phalane did not raise this
in his telephonic
conversation with her. And neither was this allegation put to her in
cross examination.
More importantly, in
terms of the National Instruction, it is the Assessment Centre and
the provincial panel that is charged with
the duty to conduct
assessments of candidates. 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. And then too,
it is not known what score was
allocated to the candidates by the
national panel if indeed they scored the competing candidates
themselves.
Lt. General Phalane
testified that the national panel did not accept the scores
allocated by the provincial panel in respect of
(a) knowledge and
skills, (b) ability and competence, (c) managerial ability, (d)
relevant experience, (e) prior learning/training
and development and
finally, the total score awarded to candidates. This represents 5
out of 10 competency areas. In the result
I must assume that the
total score awarded to each candidate by the provincial panel was
simply disregarded.
So how thereafter was
the assessment of the competing candidates conducted, by who, on
what basis and what were the results of
that assessment? Lt. General
Phalane testified that Brigadier Maswanganyi was “miles ahead”
of the Applicant. At
the provincial level when the competing
candidates were assed the scores attained were:
J Naidoo 74.2% 2
nd
position
TN Maswanganyi 71.1% 4
th
position
This scoring was rejected
by the national panel on the basis of bias and manipulation. Lt.
Phalane testified that the national panel
formed their own
assessment. The manner in which this assessment was performed as
testified by Lt. General Phalane was that the
national panel reviewed
the curriculum vitae of each candidate and had regard to their
personal knowledge of the candidates and
their working experience.
The national instruction
3/2000 regulates the conduct of assessments for the purpose of
appointment and promotion. The purpose
of the National Instruction
is recorded to be the following:
‘
The
purpose of this instruction is to regulate the procedure for
appointing applicants in advertised posts on salary levels 13 to
15,
excluding deputy national commissioners. This procedure is based on
the principles of
open
competition, competency, objectivity and 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 are concerned.’[The emphasis is mine]
Amongst other matters
under the heading Assessment, it is provided at clause 3 that:
‘
During
the assessment, the selection panel members’ must-
Put
the same type of questions to each candidate;
Afford
every candidate the opportunity to participate in the assessment
process and to respond to any questions put to him or
her;
Afford
every candidate the opportunity to place any information which he or
she deems necessary, at the disposal of the selection
panel and to
put any question to the panel;
Afford
every candidate the opportunity to ask any question for the sake of
clarity; and
Treat
candidates in an objective, fair and unbiased manner.’
If Lt. General Phalane
is to be taken at his word, this was a shocking violation by the
national panel of the National Instruction
that regulates the
assessment of candidates. As the national panel had abrogated the
provincial panel scoring of the candidates,
on the serious charge of
bias and manipulation, and assumed the responsibility to evaluate
the candidates themselves, still,
they were obliged to follow a fair
procedure and abide by the National Instruction 3/2000 in the manner
in which assessments
were to be conducted.
The national panel did
not meet the competing candidates, did not afford them any
opportunity to participate in the process and
did not afford them
the opportunity to place information relevant and necessary; this in
turn compromised the National Instruction
to “treat candidates
in an objective, fair and unbiased manner.” At the very least,
the candidates ought to have
been made aware that the results of the
assessment centre were nullified and their assessment was being
conducted by the national
panel and the process that would be
followed.
Lt. General Phalane
testified that the panel had regard to the curriculum vitae of the
competing candidates and the prior knowledge
of the candidates and
in the case of the Applicant, her previous representation to be
transferred to the support services. As
the Applicant curriculum
vitae was sparse on matters concerning operational experience that
was taken into account in forming
an impression of the candidates
and the ability and potential to perform. Brigadier Maswanganyi on
the other hand had set out
his experience in full detail.
It is of relevance to
the Applicant that the national panel took into account her
representation filed during or about 17 September
2007, about two
years earlier. Essentially, in that representation all she sought
was a clear career path and if possible, to
render service in a
training environment. For whatever reason, that representation is
treated as “negative information”
and is held against
her and the conclusion is drawn that the Applicant seeks to serve in
the support service section instead
of the operating section.
The National Instruction
stipulates at clause 8 that:
‘
Negative
information regarding a particular candidate 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.’
The competing candidates
had no meaningful opportunity to press their candidature on the
national panel. As a result of 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 for the principles of
open competition to be violated and as
a result of such violation the Applicant was made to suffer
prejudice.
Strangely so, Lt.
General Phalane testified that the national panel accepted the
scoring of the provincial panel with regard to
the four other
cluster commander positions. The allegation of bias and manipulation
in the circumstance rings hallow.
At the very least, the
testimony of Lt. General Phalane betrays the fact that the national
panel disregarded the provincial panel
assessment and scoring of the
candidates and in turn conducted their own assessment of the
competing candidates, and in doing
so disregarded the provisions of
the National Instruction and even so the procedure they adopted for
the conduct of the assessment
was flawed such that it can be said it
was arbitrary, capricious and unfair and this was to cause the
Applicant to suffer prejudice.
In the result, I am not
prepared to accept his testimony to the effect that it was the view
of the National Commissioner and members
of the national panel that
Brigadier Maswanganyi was “miles ahead” of the
Applicant. That opinion is not the product
of an object and fair
process and smacks of arbitrariness.
Service Delivery
I understood the
testimony of Lt. General Phalane that ‘service delivery
objectives’ referred to the operational dynamics
that
prevailed then in the Krugersdorp Cluster. But, it is not apparent
and he did not testify why, in the view of the national
panel, the
Applicant would not have performed ably in the position and inspire
confidence in the top management that the ‘service
delivery
objectives’ would be met.
At provincial level, the
Applicant was recommended as she had attained the higher mark and
her appointment would address gender
equity. In the assessment of
the provincial panel, the Applicant was competent, experienced and
equal to the task on hand of
serving as a cluster commander. The
considerations that underlie the provincial panel recommendation
were competence and gender
equity.
The provincial panel
members were all familiar with the Krugersdorp Cluster Command, the
competing candidates who at the time
fell under their command and
the service delivery requirements of that Cluster. No doubt, service
delivery, would have been high
on their minds. They considered the
Applicant to be equal to the task to execute the service delivery
requirements and recommended
her appointment.
I got the impression
General Bester was astounded when in a telephonic discussion with
Lt. General Phalane he raised the operating
experience of the
Applicant in an operating environment. To which she replied
‘General, go and read her CV!’
With regard to the
comment that the recommendation was not consistent with service
delivery, General Bester declared “that
is totally untrue.”
It was apparent to General Bester, having regard to the comment (s)
of Lt. General Phalane that the
national panel had not applied their
minds to the matter on hand.
Commenting on the
decision of the National Commissioner and the national panel and the
reasons cited for the decision made she
said:
‘
I
do not know if they had the CV but if I read that comment it becomes
obvious to me that they did not have [regard to] her experience,
her
background or anything in front of them, because if they saw her CV
and they saw what her experience was in the field of crime

prevention, service delivery, of every aspect that was in the
advertisement that they had to comply with then they would because

she complied with all the requirements of the post. I would not have
made that comment if I had the information in front of me.’
Whilst the comment
“[t]he panel’s recommendation not consistent with the
service delivery objectives” is put
up as a reason for
rejecting the recommendation, this reason is not self explanatory.
Without more, it is difficult to understand
it. It is vague and
nebulous.
I got the impression
from the evidence of Lt. General Phalane that the national panel was
concerned about the Applicant and her
experience in the operating
environment. Stated differently, their concern was whether the
Applicant would have been able to
ensure that the Krugersdorp
Cluster under her command would meet the service delivery
objectives.
This is a justifiable
concern. The National Instruction 3/2000 provides for the manner in
which such concerns are to be raised,
canvassed and addressed in a
manner that would promote fair and open competition amongst
candidates whilst at the same time creating
a capable and competent
Police Service, broadly representative of the South African
population.
I am quite sure that
General Bester was not aware that the national panel had abrogated
the provincial panel’s scoring assessment
and was in the
process of conducting their own assessment and as matters then
stood, the fate of the Applicant hung in the balance
at the time
when she made the comment referred to above.
This reason however does
not appear to be the convincing consideration or even a
consideration at all. Lt General Phalane testified
with regard to
the appointment made that ‘it was not about her’ and her
abilities or experience. He went on to say
it was about the
employment equity profile that was “dictating” the
decisions to be made at the time.
This view was also
expressed by Colonel Ramathoka in his testimony. As far as he was
concerned, the appointment of the Applicant
was a statistical
impossibility. The evidence shows that employment equity was the
convincing consideration for the non-appointment
of the Applicant.
Employment Equity:
Affirmative Action Measures
Discrimination is not
actionable in our law; only when such discrimination is unfair may a
litigant be entitled to relief. Discrimination
is not unfair if it
is proved that the discrimination was necessary in order to
implement affirmative action measures consistent
with the purpose of
the
Employment Equity Act.
Affirmative
action
measures which comply with section 9 (2) of the Constitution and
section 6
(2) (a) of the
Employment Equity Act are
not presumptively
unfair and constitute a complete defense to a claim of unfair
discrimination.
In the
Employment Equity
Act, affirmative
action measures are defined as follows:
‘
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 categories and 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 categories and levels
in the
workforce; and
(ii)
retain 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.’
In the assessment of
compliance of affirmative action measures,
section 42
list a number
of factors to be considered, namely:
‘
(
a
)
The extent to which suitably qualified people from and amongst the
different designated groups are equitably represented within
each
occupational category and level in that employer’s workforce in
relation to the—
demographic
profile of the national and regional economically active population;
pool
of suitably qualified people from designated groups from which the
employer may reasonably be expected to promote or appoint
employees;
economic
and financial factors relevant to the sector in which the employer
operates;
(iv)
present and anticipated economic and financial circumstances of the
employer; and
(v)
the number of present and planned vacancies that exist in the various
categories and levels, and the employer’s labour
turnover;
(
b
)
progress made in implementing employment equity by other designated
employers operating under comparable circumstances and within
the
same sector;
(
c
)
reasonable efforts made by a designated employer to implement its
employment equity plan;
(
d
)
the extent to which the designated employer has made progress in
eliminating employment barriers that adversely affect people
from
designated groups; and
(
e
)
any other prescribed factor.’
Concerning the approach
to application of affirmative action measures, Justice Moseneke
writing on behalf of the majority in
Minister
of Finance v Frederick Jacobus van Heerden
2
had this to say:
‘
This
substantive notion of equality recognizes that besides uneven race,
class and gender attributes of our society, there are other
levels
and forms of social differentiation and systemic under-privilege,
which still persist. The Constitution enjoins us to dismantle
them
and to prevent the creation of new patterns disadvantage. It is
therefore incumbent on courts to scrutinize in each equality
claim
the situation of the complainants in society; their history and
vulnerability; the history, nature and purpose of the discrimination

practice and whether it ameliorates or adds to group disadvantage in
real life context, in order to determine its fairness or otherwise
in
the light of the values of our Constitution. In the assessment of
fairness or otherwise a flexible but “situation-sensitive”

approach is indispensable because of shifting patterns of hurtful
discrimination and stereotypical response in our evolving democratic

society. The unfair discrimination enquiry requires several stages.
These are set out by this court in
Harksen
v Lane NO and Others
.’
In
Harsen
v Lane NO,
3
it was held that there is a
three-stage test for establishing whether there was unfair
discrimination namely:
Was there
differentiation which amounted discrimination?
Is the discrimination
unfair?
If the discrimination
arises out of a law of general application, is it justified?
He went on to say,
referring to the affirmative action measures and the Constitution,
that:
‘
Legislative
and other measures that properly fall within the requirements of
section 9 (2) are not presumptively unfair. Remedial
measures are not
derogation from, but a substantive and composite part of, the
equality protection envisaged by the provisions
of section 9 and of
the Constitution as a whole. Their primary object is to promote the
achievement of equality. To that end, differentiation
aimed at
protecting or advancing persons disadvantaged by unfair
discrimination is warranted provided the measures are shown to

conform to the internal test set by section 9(2). When a measure is
challenged as violating the equality provision, its defender
may meet
the claim by showing that the measure is contemplated by section 9
(2) in that it promotes the achievement of equality
and is designed
to protect and advance persons disadvantaged by unfair
discrimination. It seems to me that to determine whether
a measure
falls within section 9(2) the enquiry is threefold. The fist
yardstick relates to whether a 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 equality.’
4
The
Employment Equity
Act is
legislation enacted to further the objectives of section 9 of
the Constitution and provide for the adoption of remedial measures

as a means to address the adverse effects of apartheid and promote
transformation. It is important to bear in mind that whilst

employment equity prohibits unfair discrimination it promotes non
racialism and non sexism. That is the essence of the transformation

agenda envisaged in the Constitution. Employment equity, in so far
as it is a remedial measure contemplated within the meaning
of
section 9 (2), carry the imprimatur of the Constitution. It requires
no further justification. For this reason, the remedial
measures
must be appropriate and crafted with great care and circumspection.
The danger presented was made clear by Mokgoro J
in her minority
judgment:
‘
It
would therefore be improper and unfortunate to section 9(2) to be
used in circumstances for which it was not intended. If used
in
circumstances where a measure does not in fact advance those
previously targeted for disadvantage, the effect will be to render

constitutionally compliant a measure which has the potential to
discriminate unfairly. This cannot be what section 9(2) envisages.’
The purpose of the
Employment Equity Act is
clear:
‘
Achieve
equity in the workplace by (a) promoting equal opportunity and fair
treatment in employment through the elimination of unfair

discrimination; and (b) implementing affirmative action measures to
redress the disadvantages in employment experienced by designated

groups, in order to ensure their equitable representation in all
occupational categories and levels in the workforce.’
5
The implementation of
affirmative action measures is not a choice; it is mandatory.
Designated employers must design and implement
affirmative action
measures for people from designated groups.
The South African Police
Service had developed and designed affirmative action measures which
are set out in the Employment Equity
Plan for the period 1 October
2007 to 31 December 2010. This was the second plan. The first plan
covered the period 1 October
2001 to December 2006.
It is important in
analysing an affirmative action measure to examine the measure from
the perspective of the group to be advantaged.
An analysis that is
from the vantage of the group to be disadvantaged is to miss the
point of affirmative action and give undue
focus to the rights and
interest of this group. In the comparative to be made, the
exceptions and tiny minorities are to be disregarded
and the focus
maintained on the majority.
The Constitutional Court
object to be pursued, in the words of Justice Moseneke “is the
creation of a non-racial and non-sexist
egalitarian society
underpinned by human dignity, rule of law, a democratic ethos and
human rights”.
6
The target of affirmative action
measures, the design and its purpose and the manner in which they
implemented, are all to be
reviewed and tested against the standard
of substantive equality and the pursuit thereof.
The
Employment Equity
Act does
not provide for disparate treatment of members of a
designated group on the basis of degrees of disadvantage suffered in
the
past within and between the designated groups nor does the Act
recognise the notion of multiple disadvantages which for example
is
the condition of women presently in South Africa.
The Act advocates the
notion of ‘equitable representation’ in order to
determine the appointment of members of different
designated groups
on the basis of affirmative action.
The ideal profile that
the Constitution and
Employment Equity Act envisages
and the
Employment Equity Plan of SAPS embraces is that the workforce be
“broadly representative of the South African community”.
It is with these laws
and jurisprudence in mind and the perspective and constitutional
objectives, I turn to consider the equality
claim of the Applicant.
Firstly, is the
target of the affirmative action measure persons or categories of
persons from the designated group ?
It is self evident that
Equity Plans sets out affirmative action measures in general that
target persons and categories of persons
previously disadvantaged and
who fall within the designated group.
Secondly, is the
measure designed to protect or advance such persons or categories of
persons within the designated group?
It is the complaint of
the Applicant that the affirmative action measures, whilst intended
to redress the disadvantages in employment
experienced by members of
the designated group, in fact, creates an entry barrier to some
within the designated group and, rather
than promote equitable
representation in all occupational categories and levels in the
workforce, undermines that purpose. I am
called to consider if the
affirmative action measures as embodied in the Equity Plan and as
applied in SAPS does indeed have those
effects and to the extent that
it does, it may be self defeating and for that reason undermine the
third leg of the enquiry, the
promotion of substantive equality.
The Employment Equity
Plan that is of relevance is for the period 1 January 2007 to 31
December 2010. The Plan is designed to,
amongst other things,
achieve a diverse workforce broadly representative
of the
South African community. In order to achieve a diverse workforce,
the Executing Authority together with SAPS Management
Team designed
an ideal workforce profile.
In the design of the
ideal workforce profile it is recorded in the Equity Plan that:
‘
Ideal
figures with regard to race are based on the 2001 census report. (79%
Africans, 9.6% White, 2.5% Indians and 8.9% Coloureds)
30%
of all posts will be allocated women as a designated group in their
race groups.’
The affirmative action
measure was designed on this construct and these criterion:
For race, it is said
the ideal workforce profile and numeric targets be 79: 9: 8: 2 in
respect of Africans, White, Coloured
and Indians.
For gender, it is said
the ideal workforce and numeric targets be 70:30 in favour of men
over women.
It is important to note
this construct is at variance with the stated purpose in the Equity
Act and Equity Plan to create a workforce
that is ‘broadly
representative of the South African community’.
In addition, the
construction of using proportional representation of the population
is at odds with section 42 (a) (i) of the
Equity Act that refers to
the ‘demographic profile of the national and regional
economically active population’.
This construct is also
at variance with section 15 (1) of the Equity Act that that states:
‘
Affirmative
action measures designed to ensure that suitably qualified people
from designated groups have equal opportunities and
are equitably
represented in all occupational categories and levels in the
workplace of a designated employer.’
Following on this
particular construct of the ideal workforce profile and numeric
targets, the employment of Indians are limited
to 2.5% for the whole
group and for Indian Females it is 30% of 2.5% or .75%. The effect
of this calculation is that the ideal
profile and numeric target for
the employment of Indian females in the salary band 14 is zero. That
is to say the ideal profile
provides that no Indian females are to
be employed and the numeric target provides for zero as the ideal.
At times relevant, there
were no Indian females employed in the salary band 14 in the Gauteng
Province, being the business unit.
In fact there were no Indian
females in that band in the whole country. There was only one Indian
male employed in that band
in Gauteng. The approved Resource
Allocation Guide, based on the ideal workforce profile, provided
that no Indians, male or female,
may be employed in that band and
beyond that band. The fact that one Indian male was in employment at
that time that created
a “over representation”.
The Applicant contends
this workforce profile and numeric target was adopted as the “ideal”
by SAPS and as such it
constitutes an absolute barrier to her career
advancement as an Indian female and was the cause of her
non-appointment to the
advertised position.
She draws attention to
the fact that this ‘barrier’ has been in place since
2001 as the Equity Plan then in force
had the same profile. It will
continue to be in place until 31 December 2014 as the third equity
plan has the same profile.
It was the evidence
received that an Indian female may not be employed in that band.
Colonel Ramathoka impressed that fact and
so did Lt. General
Phalane. That fact is underscored in the comments made by the
national panel when it did not approve the appointment
of the
Applicant as it cited the reason as “[t]he appointment not
enhancing employment equity.” It is not clear whether
the
national panel had in mind race or gender or both. However, it was
the evidence of Lt. General Phalane and Colonel Ramathoka
that it
was race and gender.
Whilst at first glance
it appears that this construct may be useful to achieve ‘equitable
representation’ on closer
examination it has a manifest
exclusionary effect.
The exclusionary effect
is exacerbated if gender representation is set at only 30% of the
race group. This feature of the construct
reduces Indian females to
be a tiny minority within the designated group. If the ratio is set
at 50:50 this minority status is
improved. Thus a tiny minority is
as a result of the construct used; it is the product of the
criterion. And the criterion is
incorrectly based on the
proportional representation of the general population instead of on
the “demographic profile of
the national and regional
economically active population.”
The effect then on the
Applicant on account of her race and gender is to cause her to
suffer multiple forms of discrimination.
When viewed through the
lens of race she is according to the impugned construct and
criterion part of a ‘tiny minority’.
When viewed through
the lens of gender, and again using the impugned construct and
criterion, she is part of a small group within
the designated group.
In both instances, the construct and criterion produces groups that
is made to appear to be tiny or small
but in fact is neither if the
correct construct and criterion are used.
Thus the construct and
criterion used creates a false reality and this has significant
effects on the affected members within
the designated group.
In the lower grades, the
ideal representation of 2.5% allows for some Indians to be employed.
But in the middle and top grades,
when the number of posts is few,
it causes for no Indians to be employed, male or female. The effect
then on this race group
is disproportionate in the upper echelons of
the Police Service and a result of the use of percentages in
formulating numerical
targets.
Rather than promoting
‘equitable representation’ within each occupational
category and level of the workforce it results
in no appointment
being made or the provision thereof for persons from the Indian
community, women in particular.
The problem is best
illustrated by having regard to the salary band 14 that of Cluster
Commander at the level of Assistant Commissioner,
the post to which
the Applicant sought to be appointed to. In this band provision is
made for the employment of 19 persons. Using
this construct, it
produces an ideal for Indians [2.5%] which it means no Indians may
be employed. This conclusion is as a result
of the formula: [2.5% of
19 = 0.47] which equates to zero.
The management level of
SAPS consists of salary levels 13-16. At the management level of
SAPS, no Indians may be employed, male
or female. The concept of
proportional representation based on the general population at these
levels has the effect of creating
a barrier. They may not rise
higher: men or women. Colonel Ramathoka expressed the predicament
with candor when he testified:
“…the ideal was zero and
it was just like that.”
And that is the
complaint of the Applicant. She contends this constitutes an
employment barrier. The barrier takes the form of
a ‘glass
ceiling’. This barrier she says that is enforced and rigidly
so. As a member of the designated group, on
account of her race and
gender, she complains that the affirmative action measures set out
in the Equity Plan rather than present
her with equal opportunity
denies her any opportunity.
In the context of South
Africa, members of the designated group, by law and practice were
denied equal opportunity in employment
and this has resulted in the
disfigurement of our labour market.
In the context of the
Safety and Security Services, and SAPS in particular, the designated
group as a whole, was excluded, not
entirely but more especially in
the management echelons. The designated group suffered
discrimination and exclusion almost uniformly.
Their presence in the
management echelon was perceived as a danger to the state and the
promotion and maintenance of law and
order. In the result, pre the
democratic dispensation, no member of the designated group served in
the upper echelon of the Police
Service.
In the case of Indians,
the ideal as embodied in the workforce profile continues with this
past employment practice. To the extent
that there are Indians in
employment in the salary band 13 and higher such is considered as an
‘over representation’.
That is to say their employment
in these bands is neither desirable nor sought in terms of the ideal
workforce profile and the
ideal numeric employment target.
The ideal so
constructed, and as set out in the approved Resource Allocation
Guide (RAG) in the grades 13 to 16, is evident of
an ‘absolute
barrier’. There is no and can be no flexibility as evident in
the testimony of Colonel Ramathoka, the
equity expert.
This barrier is
encountered in circumstance where there is as a matter of fact but
one Indian male employed and no Indian female
employed in the salary
band in the Gauteng Region.
The fact that one Indian
male was then in employment, that resulted in an “over
representation”. That “over
representation” may
well have contributed to the conclusion of the national panel that
the appointment of the Applicant
will not enhance employment equity.
In effect, the Applicant was treated as if she was not a member of
the designated group.
It needs be stressed
that, at times relevant, there were no Indian females employed in
the salary band 13-16. Subsequently, and
in the kwaZulu-Natal region
two Indian females were appointed at the salary level 14. The
Respondents use these appointments
to contend that there is no
employment barrier
per se
to the appointment of Indian
females.
It is not conceivable
that the subsequent appointment of Indian females in the
kwaZulu-Natal Region was in accordance with an
Equity Plan and a
numeric target calculated on the existing formula. For that to have
occurred, the formula for race and gender
would have had to be
changed and the management corps significantly enlarged. In all
probability, their appointment was made
on some other basis. At any
rate, these are
post facto
events and apply to another
province.
It was submitted further
by the Respondents, in support of the contention that there is no
barrier
per se
that if the salary band was to be expanded to
150, an Indian female could, theoretically, be appointed. But that
contention rather
than illustrate the absence of a barrier better
illustrates the fact that there is a de facto barrier. In reality,
SAPS can neither
afford to nor will it enlarge its management corps
eight fold merely to facilitate the appointment of an Indian female.
It is
in the way of a theoretical abstract.
The very purpose of
employment equity is to redress the effects of past discrimination
suffered by members of the designated group.
Its purpose is not to
create new
de facto
barriers to employment. The fact that the
barrier is created and results in a person from a designated group
suffering discrimination,
both on the grounds of her race and gender
, is perverse.
As mentioned before, the
focus is to be on the group to be favoured and unduly focusing on
the group to be disadvantaged holds
potential to undermine the
effort for remedial action and the pursuit of substantive equality.
Although that view was expressed
by Moseneke J in a different
context it seems to me as an approach it may also hold true in the
conduct of comparative within
and between members of the designated
group.
It may well be to
achieve substantive equality and ‘equitable representation’
for a group within the designated group
to be advanced whilst
another disadvantaged. The disadvantage to be endured by the latter
group is incidental to the purpose
of promoting substantive
equality. The disadvantage suffered is in pursuit of a higher
purpose and to the extent that the higher
purpose is realised, the
disadvantaged group also benefits. Thus advantage and disadvantage
cannot be seen in a narrow context
bound by the moment. A
situation-sensitive approach is required.
Despite the laudable
purpose of affirmative action, employees are not called upon to rest
their hopes on a wing and a prayer and
be differential to the equity
plans of their employer. They are invited to participate in the
development of equity plans and
forge an acceptable compromise that
is appropriate to the situation that prevails at any given time.
Our courts need review
the Equity Plan and have regard to the fact it may be the product of
a collective agreement or a compromise
that was the subject of
consultation which was accepted either impliedly or expressly by the
majority in the collective bargaining
unit and or Council concerned
and, as it is a remedial measure, provided it is compliant with
section 9 (2) of the Constitution,
exercise due restraint and
deference in reviewing the remedial measure.
In the context of the
labour market, the remedial measure must fit within the four corners
of section 9 (2) of the Constitution
and be a measure envisaged in
terms of the Equity Act. These laws set the parameters for remedial
measures and provide the test
for compliance.
It is self evident that
the construct used to create the target workforce profile and the
non appointment of the Applicant was
the product of an affirmative
action measure. The measure, however, creates a perverse competition
within the designated group
on the basis of their race and gender.
It seems to me and in passing that I should say that its practical
effect is to set a
race and gender based preference and that
preference is ordered as follows: African males, African females,
Coloured males, Coloured
females, Indian males and Indian females.
The Applicant being a member of the last mentioned falls to be the
last to be considered
if considered at all. Being the last to be
considered, it is as if it was she and her group is not the most
disadvantaged within
the designated group to be preferred when the
appointment fell to be considered.
The practical effect of
this construct is to create in practice degrees of disadvantage and
seemingly a ranking order for the
grant of favour. Neither the
Constitution, the Equity Act, the Equity Policy nor the Equity Plan
provides for the notion of degrees
of disadvantage. Our
jurisprudence and laws call for ‘equitable representation’
and this requires a concrete, contextualised
approach. We eschew a
formulaic, mechanistic approach.
In section 42 of the
Equity Act, the factors to be considered in assessing compliance are
circumscribed and within the designated
group there is no ranking
order of preference for favour. It may well be that one or another
group within the designated group
at particular moments in time
warrant special attention on account of the fact that they are
simply not represented or sufficiently
represented to a degree
‘equitable’.
In this sense then,
focus and attention of remedial measures may shift within the
designated group whilst the goal of ‘equitable
representation’
is pursued. So for this reason then, the situation-sensitive
approach advocated by Moseneke J finds pragmatic
value. A formulaic
approach has the tendency to produce inflexibility and does not
readily allow for a shift in focus and attention
in the effort to
remediate.
The Police Service has
sought to promote employment equity since 1 October 2001. The
construct that has guided the composition
of what is said to be the
ideal workforce profile and numeric employment targets has been the
same. This construct and its criterion
have not changed over the
span of three Employment Equity Plans that covers the period 1
October 2001 to 31 December 2014. During
this period the actual
composition of the workforce has changed substantially and certainly
so in the management echelon.
The impugned construct
and criterion in so far as gender is concerned were partially
eschewed by the Cabinet which had resolved
that there be in the
appointment of women, gender equality in the ratio 50:50. This
resolution of Cabinet was adopted by SAPS
and no other than Lt.
General Phalane was to write to the entire manage corps of SAPS and
on 20 October 2009 to instruct them
there would be “no
deviation” permitted and he called on Deputy National
Commissioners and Provincial Commissioners
to revise their
recommendations “to achieve the 50% female representivity per
level”. This then was the first challenge
of the construct and
criterion launched by the Minister of Public Service and
Administration and it must tantamount to a repudiation
of the
construct and criterion.
It is to be noted that
this adoption of the Cabinet resolution and the instruction issued
was regardless of the fact that the
Equity Plan of 1 January 2007 –
31 December 2010, stipulated a 70: 30 ratio 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.
Whilst the affirmative
action measure targets persons or categories of persons who have
been disadvantaged by unfair discrimination,
and the measure is
designed to advance such persons, it does so in a manner that is
decidedly under-inclusive and preferential:
firstly race and
secondly men. There is no legislative authority for or legitimate
government purpose to be served by a gender
based preference.
Women, as the majority
of the designated group, suffer and will continue to suffer under
representation under this construct.
Thus it can be said with
justification that the affirmative action measure rather than
promote equality maintains the historical
disadvantage suffered by
women in the labour market in general and in SAPS in particular.
It is not good enough to
say that 30% is a start and it represents progress. I do
nevertheless recognise that affirmative action
in its very nature is
a progressive measure or series of measures taken over time.
But this particular
measure presents itself as a form of tokenism. It is minimalistic.
We have embraced gender equality and this
equality is the hallmark
in the composition of Parliament, Cabinet, State Owned Enterprises,
and the senior management service
(SMS) of the entire Public
Service. In this regard, SAPS is out of kilt if regard is to be had
to the Public Service in general.
And, whilst the
Constitution and Equity Act enjoins the creation of a ‘broadly
representative’ Police Service by having
regard to the
“demographic profile of the national and regional economically
active population’ the targets and the
target workforce
profile set out in the Equity Plan create something else other than
that.
The workforce target
profile in general and the numeric targets in particular must be
measured against the constitutional objective
of non-racialism and
non-sexism. Seemingly, over a span of fifteen years, ‘non-sexism’,
has been relegated as a secondary
objective.
Do the affirmative
action measures promote the achievement of equality?
Patently, these plans in
general, and the impugned measures in particular, undermine the
constitutional objective of equality.
Instead of promoting
non-racialism it promotes and for the want of a better phrase
–perverse race rivalry- and instead
of embracing non-sexism it
proffers tokenism.
In a manner silly, it
can be argued that as the affirmative action measure promotes some
members of the designated groups, women
and Indians included, it is
notwithstanding its modest targets for those groups, and badly
constructed criterion, is still an
affirmative action measure as
envisaged by section 9 (2) of the Constitution and the Equity Act
and for that reason, demands
deference.
Whilst I acknowledge the
affirmative action measures set out in the equity plan, holding the
perspective of the group to be advantaged,
promotes some from the
designated group(s) its effects in the context of our broader
society is disturbing.
Perhaps this accounts
for the Cabinet resolution that intervenes in a manner insistent
that there be 50/50 gender representation.
The fact that cabinet
eschewed the formula it cannot in all honesty be said the
affirmative action measure served a ‘legitimate
purpose’
of the Government. And SAPS too repudiated the Equity Plan that it
at once seeks here and in this matter to uphold
and enforce whilst
in reality and practice the numeric target of 70/30 has long been
abandoned. This approach is inconsistent
and contradictory and
smacks of arbitrariness.
Women are not a minority
group; they constitute the majority of our population. Whilst the
affirmative action measure and the
numeric target set out there in
presents itself as an aspiration it in fact operates in practice as
a limitation to the attainment
of equitable representation. The
plight of the Applicant reveals that to be a fact and the current
employment figures corroborates
this fact.
In addition, the target
workforce profile and the numeric targets born of it serve to
exclude Indians entirely from the rank of
management and Coloureds
are in like fashion were limited. Certainly, in the pay grade 14, to
which the Applicant sought entry,
Indian females are effectively
denied entry in Gauteng. And in this case the Applicant was denied
equal opportunity for no reason
other than her gender and race.
The overall effect of
the affirmative action measure is then severely limiting on women in
general, and Indians and Coloureds
in particular. It is a windfall
for African men who constitute say 40% of the national population.
African men are not an insignificant
group within the designated
group. But they are not the overwhelming majority of the
‘economically active population’
within the designated
group. It is as it were that two significant majorities are present:
African men on one hand and Women
on the other. The presence of
women and their majority is simply not acknowledged. In the result,
their presence is rendered
sterile and they are limited to 30% as an
employment target.
In many ways the numeric
targets present itself as a quota rather than a target. The quota
having being satisfied in the case
of Indians results in an ‘over
representation’ and as the target [read quota] provides for no
Indian females, none
may be employed and for this reason the
Applicant was not employed.
As a majority of the
population, and a majority within the designated group, in the
comparative with any other group, the focus
should be on the
employment of women and rightly so. No one majority group within the
designated group may be so preferred that
results in disadvantage
being suffered by the other designated group. Whilst maintaining the
proper focus and balance, care must
be taken to avoid naked
preference and the creation of employment barriers. A contextualized
approach is required in the pursuit
of substantive equality as we
strive to create a non-racial and non-sexist society.
Examining the impugned
affirmative action measure, namely the ideal workforce profile and
numeric targets it has spawned, new
patterns of disadvantage and
discrimination are created for women in general and Indian and
Coloured people in particular and
all the more so in the upper
echelons of the Police Service but less so in the lower ranks. The
impugned measure does indeed
create a pattern as opposed to say a
temporary condition. The pattern finds expression in the mindless
repetition of the construct
and criterion over the period of three
equity plans spanning 15 years.
Viewed in the context of
our society, and our past experience, this is an inherently
dangerous course of action. It may have the
effect of alienating
women, Indians and Coloured communities as their aspirations for a
better life are frustrated as they encounter
‘barriers’
and ‘patterns’ of race based preferences. In the case of
Indian both men and women, the barrier
is absolute. In the case of
African women, the barrier is relative to the 30% target which in
turn serves as an unjustified limitation
on their employment
opportunities.
It is in my view,
referring to the aforementioned barriers, patterns and limitations,
it is a price too high to pay by our society
in general and the
affected groups in particular. Instead of promoting harmony, peace
and stability it holds potential for considerable
inter group
contestation, conflict and protests amongst the designated groups.
This undermines the pursuit of non-racialism and
non-sexism.
The measure that was
designed and that which is embodied in the affirmative action
measure, does not appear to be “tightly
circumscribed”
and in accordance with the lawful criterion set out in the Equity
Act. Whilst posing as a measure that is
constitutionally compliant
it in facts discriminates unfairly and unlawfully.
It may not have been the
intended result to create barriers and patterns of disadvantage but
it does in practice have such an
effect. These effects, undermines
equal opportunity and the pursuit of substantive equality. It
undermines too the constitutional
objective of creating a non racial
and non sexist egalitarian society. This is so and regardless of the
perspective, focus and
vantage one holds in the consideration of the
matter. It results in the naked preference of members drawn from the
African men
group. That naked preference is evident in the testimony
of Lt. General Phalane.
It is artificial to say
that the preference of one group, within the designated group, is
for a limited period. This preference
of one group (African men)
following on a previous plan and carried through in subsequent
plans, spans almost 15 years. The real
danger exists, that it will
entrench the notions of degrees of disadvantage and perverse race
and gender rivalry and before long
these notions will take hold in
our society. These notions stand in stark contrast with the
constitutional objective of non-racialism
and non-sexism.
This in turn may lead
women to give up on the legitimate expectation of gender equality
and accept tokenism. And in the case of
Indians the absolute barrier
will telegraph the false message, that there is no promotion
prospects in the Police Service. Justifiably
so, they will leave the
service and seek greener pastures elsewhere. This in turn will
frustrate the other objective of retention
of service of members
from the designated group as envisaged by section 15 (2) (d) (ii).
In the process, the pursuit of substantive
equality will be
frustrated.
In assessing how snugly
the impugned affirmative action measure fits into section 9 (2) of
the Constitution, I am of the view
it fits poorly. The measure
presents itself as an abuse of power and imposes substantial and
undue harm on those excluded from
its benefits that our long term
constitutional goal is threatened.
In the upper echelon of
management and in the bands 13-16, African men are presently the
majority in employment. It need not be
that no other group can be
advanced until this group has enjoyed their full measure of
preference. Commenting on progress made,
National Commissioner
Jackie Selebi acknowledged that “Despite all the problems that
plague the SAPS, there has been much
progress, which we need to
celebrate”. Subsequently, National Commissioner BH Cele made
the exact same comment in reviewing
progress made. They must have
had in mind, the progress of African men. For women the progress was
but 21% - by my way of thinking
that is pitiful.
It is apparent that the
first equity plan has served as a template and over time that
template has come to be cast in stone. And
the review and monitoring
of the equity plan and its effects has come to be nothing more than
an exercise in cut and paste such
that two National Commissioners in
different times say exactly the same thing. This is unfortunate and
a telling indictment on
the manner in which employment equity is
pursued in the Police Service.
I have little doubt that
the construct and the criterion it is based on may be one of the
causes of such limited progress if not
the most significant. This
then results in the affirmative action measure being in itself as
cause of discrimination that has
a negative impact on the employment
equity in the Police Service and the pursuit of substantive
equality.
I find nothing in our
laws or jurisprudence that affords African men a preferential status
such that this group, within the designated
group, should be
advantaged to the detriment of all others within the designated
group and for so long a period. This preferential
treatment lacks
any sense of proportionality.
We need recognise as
Moseneke J does when he said that “ours is a diverse society,
comprised of people of different races,
different language groups,
different religions and both sexes.” For this diversity to be
celebrated it needs to find expression
in our target workforce
profile and all the more so in the South African Police Service that
is charged with the duty to protect
and defend all the communities
that comprise our diverse society.
That capability will be
compromised if the race and gender preference as set out in the
construct and criterion upon which it
is based is to continue
unabated. As the evidence shows African men occupy more than 50% of
the positions in the upper echelons
of SAPS. To the extent that
previous affirmative action measures were embarked, with this group
in mind, such measures have resulted
in considerable progress. And
that fact is indeed to be celebrated.
Progress has been made,
and the focus needs shift to others within the designated group. The
workforce profile and the numeric
targets set out in the impugned
affirmative action measure does not show any shift in focus and
attention.
As a result the
diversity that Moseneke J refers to, unfair discrimination is not
allowed to emerge in the upper echelons of the
Police Service.
According to this Plan, no Indians may serve in the upper echelons
and only 30% women.
And for an Indian
female, it is as it were, a statistical improbability for such an
appointment to be made. The fact that women
are limited to a 30%
target within their race groups, has the effect that women, a
majority of the designated group, are purposively
limited in
employment in the Police Service and subjected to double
discrimination. The 30% ratio has a punishing effect on Indian
women
and results in a statistical improbability of appointment.
I have started on the
premise that the impugned affirmative action measure is not
presumptively unfair. I have sought to examine
the impugned measure
within the context of section 9 of the Constitution read as a whole.
In the main, I have considered whether
the impugned measure falls
within the meaning of section 9 (2) and section 6 of the employment
Equity Act and have assessed it
in accordance with section 15 and 42
of that Act. I have also conducted a comparative analysis of the
affected classes in a situation-sensitive
context and kept focus on
the majority rather than the difficult minority. In my view, the
plight of the Applicant is not an
exceptional case; it is the plight
of all of her race and her gender.
I have concluded that
African men are
de facto
treated as a favoured class within
the designated group and taken note of the fact that the construct
that produced this class
was based on a wrong criterion namely
proportional representation of the general population instead of on
the demographic profile
of the national and regional economically
active population.
I have taken note too
that this construct had the effect of creating a tiny minority for
Indians in general and Indian women in
particular when in fact this
is not so if the economically active population is to be considered
as a criterion.
I have also taken note
of the fact that women are a majority group within the designated
group by use of either criterion and
ought not to suffer less favour
in comparison to men in the designated group.
I have had regard to the
progress made over the years and took note of the fact that for
African men their position has been improved
and significantly so
such that presently they constitute the majority in the upper
echelons of management.
I have taken note of the
Cabinet resolution and the fact that in following the lead of
Cabinet, the management of SAPS has eschewed
the gender bias in
favour of men evident in the impugned equity plan.
Whilst the impugned
affirmative action measure is indeed designed to protect and advance
members of the designated group, it has
as its focus a much too
narrow definition of the designated group and it is a feature of the
flawed design that it is exclusionary
rather than inclusive to a
significant degree for the case of women; and in the case of Indians
and Indian females it excludes
them entirely and in doing so sets up
an employment barrier. In terms of the Equity Act, employment
barriers are prohibited.
And so are quotas.
The prejudice that this
causes is not incidental; it is in fact the purpose of the impugned
measure and the product of the construct
and criterion upon which it
is based. The interests of Indians in general are disregarded and
that of women and for no reason
at all, minimised. I have taken
cognisance of the impact that the impugned measures have on the
respective groups without giving
undue focus on the position of the
complainant.
I have illuminated the
design flaw of the affirmative action measure and its perverse
effects. This flaw in design is significant
as it causes prejudice
and not just to persons from the Indian community but also to a
significant majority. A very real danger
exists that this design
flaw, will give rise to a perverse race and gender rivalry and
produce in consequence confrontation and
alienation and will in the
long run, undermine the promotion of substantive equality and the
creation of a non racial and non
sexist society.
At any rate, the design
flaw was recognized by Cabinet and management. In practice, the
design of 50:50 men is to women was adopted
and given effect to by
SAPS and the 70:30 ratio was jettisoned. But the Equity Plan was not
amended to reflect this gender equality.
Opportunistically, SAPS
in this matter seeks to uphold the 70:30 ratio even as it
acknowledges that that ratio was abandoned.
This results in
inconsistency, confusion and contradiction. This is self evident in
the fact that at the provincial level the
numeric target is created
based on 50:50 which presents the Applicant with an opportunity.
However, at national level, the target
produced is declared to be
‘wrong’ and the national office refuses to abide by it.
In the absence of certainty, the
opportunity for arbitrary conduct
arises.
The criterion of
preference of men over women as is evident in the ratio 70:30 and
the use of the criterion proportionate representation
of the general
population are not to serve a legitimate government purpose and
government itself has partially rejected the design
of the
affirmative action measure constructed on this basis. The fact that
the formula was crafted in consultation in the Safety
and Security
Bargaining Council, and features in a collective agreement does not
constitute justification.
See
Larbi-Odam
and Others v Member of the Executive Council for education
(North-West Province) and Another
.
7
Per Mokgoro J
‘
Where
the purpose and effect of an agreed provision is to discriminate
unfairly against a minority, it’s origin in negotiated

agreement will not in itself provide grounds for justification.
Resolution by majority is the basis of all legislation in a
democracy,
yet it to is subject to constitutional challenge where it
discriminates unfairly against vulnerable groups.’
Accordingly, I conclude
the impugned affirmative action measures are not consistent with the
purpose of the
Employment Equity Act and
the Constitution. For this
reason it does not enjoy the protection envisaged in terms of
section 9 (2) of the Constitution or
section 6
of the
Employment
Equity Act.
In
as much as the
affirmative action measure fails the test in terms of
section 9
(2)
it fails the test in terms of section 9 (3) of the Constitution and
for much the same reasons. Whilst the Respondents pinned
their
colours to the mast that is section 9 (2), I have also considered
the impugned measure in terms of section 9 (3). That
is not to say I
divided section 9 into artificial parts. It the pursuit of
substantive equality that I am most conscious of.
In this regard,
the test set out in
Harksen v Lane NO
is relevant.
It is an inescapable
conclusion to be drawn from the facts of this matter that the
impugned measures affects the rights and interests
of members of the
designated group –Indians and woman- symbolised in the
Applicant and led to an impairment of their and
her fundamental
human dignity. The discrimination was on a listed ground: gender and
race. The discrimination in this matter
creates real disadvantage
and perpetuates the historical discrimination and disadvantage
suffered in the past.
The management of SAPS,
on a frolic of their own, not supported by Cabinet can hardly claim
the impugned measure is a legitimate
government purpose. There is no
rational connection between the impugned measures and a legitimate
government purpose and for
this reason, section 9 (1) of the
Constitution that embodies the equality guarantee, is violated.
The Applicant complained
that her dignity was impaired by the non appointment occasioned as
it was by discrimination on a prohibited
ground. Indeed, it was an
affront to her dignity that she should be denied equal opportunity
on account of her gender and race.It
is to be remembered that in the
Police Service, members are called upon to render service and
inherent in the rendering of such
service is the danger to life. As
a sector of the economy, the safety and security sector, presently,
is a dangerous sector to
render service.
In this context, it is
crass to limit women and in the case of the Applicant to deny her
altogether the opportunity for advancement
even though she puts on
life on the line to render public service to our country.
It is no less crass to
say that the ideal for the appointment of Indians in the bands 13 to
16 is zero. This is to undermine the
constitutional objective of non
racialism and non sexism as it constructs an absolute barrier that
is based on a prohibited ground.
It has the unfortunate consequence
of promoting cynicism and bringing affirmative action as a remedial
measure into disrepute.
The use of affirmative
action measures to promote substantive equality is necessary and in
the context of our labour dispensation
consultation and consensus is
the bedrock of collective agreements. Thus there is a need for
collective ‘buy in’
and acceptance of the affirmative
measures. If cynicism was to flourish, that would be the death of
consensus. Fiat will be the
order of the day and the manner in which
we order our labour relations, as is evidenced in this matter that
possibility is all
too real.
For all the reasons
mentioned, the affirmative action measure in particular the
construct and criterion set out there in bears
no rational
connection to a legitimate government purpose and the
differentiation amounts to unfair discrimination that cannot
be
justified under the limitation provision set out in the Constitution
and the Equity Act.
In this instance, it
seems to me that the affirmative action measure was made to serve an
interest, narrowly defined to the detriment
of the majority, if the
designated group is constituted on the basis of gender. I have taken
notice of the fact that the President
appointed a woman to serve
presently as the National Commissioner. If woman are to continue to
serve as National, Provincial
and Deputy Commissioners then a cadet
corps needs be developed in the lower, mid and upper ranks of
management and so present
a pool of candidates that may serve as
National Commissioners for the generations to come. The employment
equity plans betray
a systemic bias against women and vulnerable
minorities.
In the context of South
Africa, woman have played that is at once a leading and remarkable
role in bring to an end Apartheid and
the historically
discrimination it codified. It is in recognition of that
contribution that the constitutional objective is defined
as “non
racial and non sexist”. It is not by accident we eschew gender
discrimination.
I am mindful that gender
provides something of a catch-all net and under this guise those
previously advantaged may seek entry
into a favoured class. But that
is not the case here. The Applicant is a member of the designated
group on account of her race
and her gender. A properly crafted
affirmative action measure should promote and protect her as a
vulnerable minority. The impugned
measure does neither but in fact
creates circumstance to continue the discrimination she and her
group suffered in the past.
For all the reasons
mentioned, the decision of the Commissioner was irrational and
caused the Applicant to suffer unfair discrimination.
Conclusion
At the time the matter
was argued before me, the post of Cluster Commander: Krugersdorp was
vacant. Having regard to the egregious
conduct of the national panel
and the then National Commissioner, it seems inappropriate to simply
refer the matter back to the
National Commissioner for the
candidature of the Applicant to be reconsidered.
The subsequent Equity
Plan has not been amended to take into account the resolution of
Cabinet which was adopted by SAPS and given
effect to. This creates
a false facade that the management of SAPS may hide behind as they
have done in this matter. This is
duplicitous conduct and is
capricious.
In addition, the current
employment equity plan presents an absolute barrier to the
appointment of Indians and Coloureds, both
men and women, in the
upper echelons. This barrier must be removed and forthwith. Persons
of these communities are part of the
designated group, and they are
entitled to ‘equitable representation’ and if needs be
by means of reasonable accommodation
on account of the fact that
they are a vulnerable minority in South Africa.
The Equity Plan, and the
affirmative action measures in particular the workforce profile and
employment targets are constructed
on a wrong and impermissible
construct and criterion and the provisions of section 42 of the
Equity Act are violated.
Order
In the circumstances, I
make the following order:
The Second Respondent
unfairly discriminated against the Applicant on the ground of her
race and gender and the non appointment
of the Applicant was both
substantively and procedurally unfair.
The Second Respondent is
ordered to appoint the Applicant to the position of Cluster
Commander: Krugersdorp with effect from 1
August 2009.
The Applicant is to be
paid the difference in remuneration she would have earned as if she
was appointed to the post of Cluster
Commander: Krugersdorp such pay
to be calculated as from 1 August 2009.
The Applicant is to be
paid compensation in the sum equivalent to twelve months (12) months
remuneration calculated on the rate
of pay applicable for that of
Cluster Commander.
The Respondent is
ordered to pay the costs of this suit.
______________
SHAIK, AJ
Acting Judge of the
Labour Court
Appearances
:
For the Applicant:
Advocate C. Prinsloo
Instructed by: C. Du Toit
Attorneys
For the Respondents:
Advocate Mooki
Instructed by: The State,
Pretoria
1
(1999)
20 ILJ 2133 (LC) at para 36,
2
[2004]
12 BLLR 1181
(CC) at para 27.
3
1997
(11) BCLR 1489
(CC) para 53.
4
Van
Heerden
above n 2 at para
32.
5
Section
2
of the
Employment Equity Act.
6
Id
at para 26.
7