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[2013] ZALCJHB 130
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Solidarity obo van der Walt and Others v South African Police Service and Others (J 412/13) [2013] ZALCJHB 130; [2013] 8 BLLR 816 (LC); (2013) 34 ILJ 2943 (LC) (28 February 2013)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO
: J412/13
DATE
:
28 FEBRUARY 2013
In
the matter between
SOLIDARITY
obo VAN DER WALT AND
OTHERS
..........................................................
Applicant
And
SOUTH
AFRICAN POLICE SERVICE AND
OTHERS
..................................................
Respondent
JUDGMENT
STEENKAMP
J:
This is the
judgment in the matter heard at 12:00 today, it is an application for
urgent relief
pendente
lite
pending the determination of two matters pending before this
Court.
[1]
I shall refer to those two matters that is a discrimination claim
under case JS 469/12 and an attack on the SAPS Employment Equity
Plan
under case J 879/12, as the main disputes.
The application
has been brought on very short notice. The respondents, that is the
SAPS and the Minister of Safety and Security,
have been given little
more than one clear day's notice of these
proceedings. The
first question to be addressed, and the main leg on which Mr Moss/77,
for the respondents, based his attack, is
that of urgency.
In order to
consider the question of urgency, I shall briefly refer to the
background leading to this application. On 5 April 2011,
the parties
to the Safety and Security Sectoral Bargaining Council adopted a
collective agreement termed Resolution 2 of 2011.
That agreement
provides for a once-off promotion process for the promotion of police
officers. The contentious part of that agreement
is that among the
selection criteria for promotion was the following:
"Representivity
: the representivity guidelines and number of posts [are] the
baseline for that filling of the posts, provided
that that in the
case of same race group only, male members may supplement the
shortfall of female members.
The applicant,
that is Solidarity, argues that the agreement is expressly race-based
because it provides that the most senior members
"per each race
group" must be considered for promotion.
Arising from that
agreement, a promotion process was implemented as from 20 April 2011.
The applicant union and its individual members
lodged grievances that
remained unresolved. They then lodged the main cases to which I have
referred. What gave rise to this application
is that the SAPS have
now indicated that it is embarking on a second phase of
implementation. That was spelt out in a letter dated
18 February 2013
from the National Commissioner of the SAPS, Riyah Phiyega, all SAPS
commissioners in which she stated that:
“
Flowing
from SSS6C Agreement 2/2011 dated 5 April 2011 and in view of your
recommendations received, I have great pleasure in announcing
that
the promotion of the members mentioned in the attached list of names
and to the ranks as indicated, have been conditionally
approved with
effect from 1 March 2013.
The
promotions will only become effective after compliance with the
following conditions...''
And
certain conditions then follow. The applicant union says that the
list of names only came to its knowledge on 21 February 2011;
that is
uncontested. It therefore appears that unless interdicted, the
promotions, that it appears have already been conditionally
approved,
will take effect tomorrow, 1 March 2013, In those circumstances, when
the applicant union learnt of this state of affairs
and became aware
of the attached list, it wrote to the Minister, NE Mthethwa, and the
National Commissioner, MV Phiyega, the very
next day, 22 February
2013 referred to the second phase of promotion in terms of SSSBC
Agreement 2 of 2011 and stated:
“
We
confirm that we have been informed by our members employed by the
SAPS that the new list of appointments to the rank of Lieutenant
and
Major have been made available. Unfortunately, yet again, it seems
that the SAPS has followed a strict mathematical approach
in
populating these positions by making use of the 2006 mid-year
population estimates in allocating only certain amounts of posts
per
each race and gender group “It Is Solidarity's submission that
the aforementioned amounts to nothing other than a quota
system
(which is prohibited by law), that the application thereof leads to
an infringement of the right to equality and dignity
of the minority
groups, that it effectively sets an absolute barrier for promotion,
and that it contradicts the Constitutional
provisions by which the
SAPS is governed.
"Take
further note that Solidarity has already filed legal papers (under
case JS469/12) regarding the first phase of promotions,
in which the
legitimacy of SSS6C Agreement 2 of 2011 is attacked and we
accordingly request your urgent undertaking that the current
promotions will be held in abeyance until the court has made a final
ruling in the aforementioned case. Your urgent response by
no later
than Monday the 25
th
of February, dose of business, will
be appreciated.
No such
undertaking was forthcoming. Solidarity therefore once again wrote to
the Minister and the National Commissioner on 26 February,
nothing
that they have not received any response to their earlier leper.
Given the urgency of the matter, they raised the matter
again and
requested, once again, that phase two of the SSSBC Agreement 2 of
2011 be held in abeyance until the main case has been
adjudicated.
Once again, the
union did not receive the courtesy of a response. It then launched
this application on an urgent basis on 27 February.
And as I have
already stated, clarity is urgently needed before tomorrow, 1 March,
In those circumstances, it cannot be said that
any urgency Is
self-created; the matter is self-evidently urgent And much as this
Court would have preferred more time to deal
with it. It has to be
considered on that basis.
As
far as the applicant's prospects of success in the main application
is concerned, it is not for this Court to make a definitive
ruling on
an issue as contentious as this. Suffice it to say that, as Mr
Mosam
readily conceded, the case law with regard to the implementation of
agreements such as this and whether employment equity plans
that
constitute an absolute barrier to the promotion possibilities of
certain race or gender groups is far from clear. The applicant
has
set out in its uncontested founding papers that, viewed
mathematically, the SAPS Employment Equity Plan means that If there
are 100 available promotion posts, preference will be given to
11
Africans” until 80 are filled, irrespective of how many
“White," ‘Coloured", and Indian"
applicants
otherwise qualify in terms of the plan; they will only be
considered
v
for jthe remaining 20 posts until the quotas
for their
respective
groups are filled.
[2]
This brings us to the Orwellian scenario where an Indian woman, for
example - a member of a designated group on two counts - stands
a
chance of 1,23 out of 100 of being promoted, irrespective of her
merits and experience, ostensibly in the pursuit of employment
equity
and the constitutional right to equality.
Mr
Grogan,
for the applicants,
referred in his argument to a judgment that was handed down two weeks
ago by Shaik AJ in this Court under case
JS566/11, that is
Naidoo
v Minister of Safety and Security end the National Commissioner of
the SAPS
3
,
delivered on 15 February 2013. In that case, this Court in a very
lengthy judgment spanning 232 paragraphs gave a comprehensive
overview of the relevant legal principles, and quoted with approval
from the judgment of the Constitutional Court where Justice
Moseneke,
writing for the majority, said in
Minister
of Finance v Van Heerden
[2004] 12 BLLR 1181
(CC) paragraph
[27]:
This
substantive notion of equality recognises that besides uneven race,
class and gender attributes of our society, there are other
levels
and forms of social differentiation and systemic underprivileged
which still persist. The Constitution enjoins us to dismantle
them
and to prevent the creation of new patterns of disadvantage. It is
therefore incumbent on courts to scrutinies in each ecfuaiity
claim
the situation of the complainant in society; their history and
vulnerability; the history, nature and purpose of the discriminatory
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 responses in
5
[2013] ZALCJHB 19.
our evolving democratic society.
Shalk Aj also
added (at paragraph [133] of
Naidoo)
that the construction of using proportional representation of the
population, as the SAPS is doing in this case, is at odds with
section 42(a)(i) of the Employment Equity Act that refers to the
‘demographic profile of the national and regional economically
active population'.
Furthermore,
in paragraph [158], Shaik AJ noted:
The
very purpose of employment equity is to redress the effects of past
discrimination suffered by members of a designated group.
Its purpose
is not to create new
da facto
barriers to employment.”
And
at paragraph [220]:
‘
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 her life on the line to render public service to
our country."
I should add that
it may appear that the Labour Appeal Court in the recent case of
SAPS
v Solidarity obo Barnard
[2013] 1 BLLR 1
(LAC), may be read to
have come to a different conclusion. However, the ratio of the LAC in
that case can be found in summarised
form in paragraph [47] of the
judgment, where Mlambo JP says:
“
The
Labour Court cleariy misconstrued the purpose of the employment
equity orientated measures by decreeing that their implementation
was
subject to an individual's right to equality and dignity. This
misconception is highlighted in this case where the individual
concerned is a white woman, whose group was overrepresented in level
9, and who was clearly advantaged by past unfair discriminatory
laws.
Importantly, she did not hope to be appointed as there were two
appointable black candidates from designated groups* She
was also
aware that black candidates were targeted for the post for which she
applied and which target was within the conscripts
[sic]
of National Instruction 1 of 2004,"
It does not
appear to me in the short time available to me that the Court in
Barnard
specifically
considered the question of an absolute barrier to promotion. On the
other hand, jn another recent case decided by
my brother Lagrange J,
in
Solidarity v Department of
Correctional Services
[2012] 11 BLLR 11$3
(LC), he had to deal
with an application for an interdict
pendente
lite
that is for all intents and purposes on all fours With
the one before rne today. And in that case, he found when discussing
the
existence of a
prima facie
right, and I quote from paragraph [24] in terms of section 15(2) (d)
of the EEA, measures to ensure ecfual opportunities for suitably
qualified individuals from designated groups and to achieve equitable
representation in the workplace may include numerical targets
and
preferential treatment, but may not adopt quotas. What appears to
have happened in this instance is that even when no suitably
qualified person from a designated category was available, the
[employee] could not be appointed. Thus, even when the employment
equity plan could not achieve the objective of appointing a suitably
qualified person from a designated group, the employee’s
race
was an insuperable obstacle to his appointment.
It
would seem on this basis that the [employee] might well have been
discriminated against solely on the basis of his race and not
for the
purpose of advancing a suitably qualified person from a designated
group pursuant to the legitimate aims of an employment
equity plan
and in those circumstances, he found that a
prima
facie
right had been established. It is in the same context
that I must consider whether the applicant in this case has
established a
prima
foc/e
right. The test is a well-known one repeated by Lagrange J in the
Correctional S&rvices
judgment and set out by the Appellate Division, as it then was, in
the well-known case of
Eriksen
Motors (Wefkom) Ltd v Protea Motors, Warrenton
, 1§
73 (3)
SA 685
(A) at 691 C-G. That is that the applicant must establish a
prims facie
right even if
open to some doubt. It is patently clear that the applicant in this
case has established at least a
prima
fech
rjght, given the authorities that I have referred to.
Turning to the
question of an alternative remedy, it may theoretically be said that
the applicants have an alternative remedy, that
is to challenge the
implementation of phase 2 of the Resolution after the fact. However,
that would be highly impracticable and
would mean that a process
affecting more than 1 000 employees would have to be undone ex
post
facto.
That remedy is more apparent than real.
The same
consideration applies to the question of irreparable harm. There is
no doubt that the applicants will suffer harm if the
second phase of
the process is implemented. The question is whether that is
irreparable. It may be said that it is not irreparable
in that they
can challenge it after the fact. However, as Lagrange J said in
Correctional Services
at
paragraph 26:
The
[employee] comes to court at this juncture in order to prevent the
Department filling the post in the meantime. He contends
that If the
post was filled in the interim, it would mean that even ff he were
successful at trial, he could not actually be appointed
to the post,
that at best he could expect a so-called ‘protected promotion’
in terms of which he could be promoted
to the equivalent salary rank
of the post but could not obtain the benefit of the further
experience gained by actually performing
the work."
The same
considerations apply in the case before me. That is also intertwined
with the balance of convenience. This is not a case
where, if the
interdict were to be granted, service delivery would be affected. The
same SAPS officials will continue to do the
same work at the same
rank that they presently occupy. Were the second phase to be
implemented as from tomorrow, which would simply
mean a translation
in rank. It would not mean that service delivery would be enhanced in
any way.
For all of these
reasons, the application for interim relief
pendente
Ute
shouid be successful. With regard to costs, it appears
from my discussion under the heading of “urgency” that
the applicant
union tried its level best to ensure an undertaking
from the Minister and National Commissioner of the SAPS before
turning to this
Court for urgent relief. No response was forthcoming;
the union was left with no other option. In those circumstances, the
first
to third respondents should be ordered to pay the applicants
1
costs jointly and severally. The only regret that the Court expresses
is that those costs will inevitably be paid by the taxpayer,
In conclusion
then, an order is granted in the following terms:
1.
The
applicant's non-compliance with the rules of this court pertaining to
time periods and service is condoned and the matter is
heard as one
of urgency in terms of rule 8.
2.
An
interdict
pendente Itte
is
issued in the following terms;
2.1
The first and third respondents are interdicted and restrained
from appointing any individuals in the ranks of Lieutenant, Major
or
Captain in terms of SSSBC agreement 2 of 2011 until the court has
handed down judgement under case numbers JS469/12 and J 879/12,
2.2
The applicant is granted leave to supplement its statement of
claim under case number JS 469/12 and its founding affidavit under
case number J879/12 to the extent necessary in the light of
subsequent developments and the respondents are granted leave to
respond
thereto.
2.3
This order operates as an interdict
pendente
fite
pending finalisation of the court proceedings under case
numbers JS 469/12 and J 879/12.
3.
The first, second and third respondents are ordered to pay the costs
of this application jointly and severally, the one paying,
the other
to be absolved,
STEENKAMP
J
APPEARANCES
APPLICANTS:
John Grogan
Instructed
by Serfontein, Viljoen & Swart.
RESPONDENTS:
Afzal Mosam
Instructed
by the State Attorney.
[1]
The Notice of Motion initially framed the relief sought in the form
of a rule nisi. Mr Grogan clarified it to say that the applicants
sought interim relief in the form of an interdict pendente Itte, and
not as an interim order pending a return day. The matter
was argued
on that basis and the order I made is granted on that basis.
[2]
Of course, these distinct
sub-categories
harking
back to the apartheid-era Population Registration Act do not exist
in the Employment Equity Act, Act 55 of 199B (the E£A),
The
EEA refers to “designated groups*, meaning 'black people,
women and people with disabilities*. And “black people"
is a generic term which means Africans, Coloured® and
Indians,