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[2015] ZALCJHB 120
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Solidarity and Others v SA Police Services and Others (JS 469/12) [2015] ZALCJHB 120; [2015] 7 BLLR 708 (LC) (2 April 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JS 469/12
DATE:
02 APRIL 2015
Not
Reportable
SOLIDARITY
...................................................................................................................
First
Applicant
J.P.L
VAN DER
WALT
.................................................................................................
Second
Applicant
J.E
STONE
......................................................................................................................
Third
Applicant
N.
LE
ROUX
.................................................................................................................
Fourth
Applicant
And
SA
POLICE
SERVICES
..............................................................................................
First
Respondent
THE
MINISTER OF SAFETY AND SECURITY
N.O
.........................................
Second
Respondent
THE
NATIONAL COMMISSIONER OF THE SA POLICE SERVICE N.O
......
Third
Respondent
SOUTH
AFRICAN POLICING
UNION
................................................................
Fourth
Respondent
POLICE
AND PRISONS CIVIL RIGHTS
UNION
..................................................
Fifth
Respondent
THE
SAFETY AND SECURITY BARGAINING
COUNCIL
................................
Sixth
Respondent
Heard:
27 January 2015
Delivered:
2 April 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The
applicants approached the Court in terms of Rule 6 of the Rules of
this Court read with various provisions of the Employment
Equity
Act
[1]
(‘The EEA’)
and section 157 of the Labour Relations Act
[2]
(‘The LRA’). Solidarity contends that the SAPS promoted
members pursuant to a Collective Agreement by reference to
race and
gender quotas, to the exclusion of other relevant factors and in
contravention of the provisions of sections 9(3) of the
Constitution
[3]
and those of the
EEA.
[2]
The application initially concerned the
Second to Fourth Applicants (the individual Applicants), whom
Solidarity had alleged were
unfairly discriminated against in not
being selected for promotions in accordance with the new ranking
structure as effected in
terms of a Collective Agreement. The
applicants further challenge the lawfulness and validity of that
Agreement and its implementation
on the basis that it was
discriminatory and quota based.
[3]
SAPU and POPCRU were joined to these
proceedings by consent in terms of an order granted by this Court on
28 August 2012. SAPU however
did not oppose the application and
sought to abide by the Court’s decision whilst being allowed a
watching brief.
[4]
At the commencement of the trial, it was
agreed between the parties that the dispute was to be divided into
two, with a determination
to be made by this Court only in relation
to the lawfulness and the validity of the collective agreement
complained of. The claim
in respect of the individual applicants was
to stand over for determination at a later date. In the light of
these developments,
oral evidence was not deemed necessary, and the
matter was thus determined on the basis of the pleadings, the oral
and written
arguments presented by the parties’ respective
representatives.
[5]
Effectively then, the issue for
determination before the Court is whether the Collective Agreement is
unlawful under the Employment
Equity Act No 55 of 1998 (The EEA), and
whether it amounts to a breach of sections 1, 9 (3) and 195 (1) of
the Constitution. According
to the applicants’ pleadings, they
seek an order;
i.
“
declaring the race based allocation
of posts contemplated in the Agreement to be unlawful under the
Employment Equity Act;
>
ii.
declaring the faithful implementation of
the Agreement through the promotion of SAPS personnel in accordance
with race and gender
quotas reflecting the national demographic
profile of the South African population, to be unlawful under the
Employment Equity Act;
iii
.
directing the first, second and/or third
respondents to consider all relevant factors in the determination of
the identity of candidates
to be promoted to vacant positions in the
ranks affected by the Agreement; and
iv.
directing that the hearing to determine
whether or not the application of the race and gender based criteria
contemplated in the
Agreement to the Second, Third and Fourth
applicants constitutes unfair discrimination as against them be set
down”.
[6]
Further in the light of the narrowed issues to be determined,
Solidarity seeks an
interdict
against
future promotions under what it terms the ‘quota system’.
The peculiarity of this prayer was pointed out by
POPCRU, which
contended that such a prayer presupposes that
that
it has already been established that the Agreement countenances a
“quota” when no evidence has been led to establish
this.
Background:
[7]
In September 2009, a decision was taken by SAPS introduce a new rank
structure, and to create two new ranks of Lieutenant and
Major. The
new ranking structure in order of seniority was to be and is
currently as follows:
·
General
·
Lieutenant General
·
Major General
·
Brigadier
·
Colonel
·
Lieutenant-Colonel
·
Major
·
Captain
·
Lieutenant
·
Warrant Officer
·
Sergeant
·
Constable
[8]
This structure was advertised in the Government Gazette
[4]
and was implemented as of 1 April 2010 following approval by the
Minister of Police
[5]
. The new
ranks were to be filled by existing members of the SAPS who would be
promoted into the positions created. According to
SAPS, the new rank
structure was meant to address bottlenecks created at the level of
Warrant Officer, it being contended that
once promoted to that level,
members essentially got stuck without the prospects of future
promotions. Furthermore, the new structure
was meant to instil
discipline in members and to boost morale. It was also envisaged that
the new structure would be a useful tool
in regards to issues of
protocol and command in the event of joint operations between the
SAPS and the South African Defense Force.
[9]
Following the adoption of the new structure, a dispute arose with
POPCRU and SAPU, the trade unions representative at the level
of the
SSSBC and SAPS, as to how the promotions and population of the new
ranks were to be effected. Solidarity is not a recognised
representative at the level of the SSSBC and was accordingly not
involved in the dispute. With a view of resolving the dispute,
POPCRU, SAPU and SAPS concluded a Collective Agreement on 5 April
2011 at the level of the SSSBC (‘The SSSBC Agreement 2/2011’),
which is the subject matter of this dispute.
The Agreement:
[10]
Part A of the Agreement confirms that the two new ranks are to be
introduced taking effect from 1 April 2010. It sets out the
level at
which the ranks of Lieutenant and Captain as well as that of Major
and Lieutenant-Colonel were to be filled and the principles
underpinning the process. Pertinently, the agreement further records
that;
“
2.1
A once-off promotion process will be embarked upon in the 2011/2012
and 2012/2013 financial year to provide for the promotion
of members
to the ranks of lieutenant, captain and major.
2.2 The promotion
process will be informed by the criteria as set out in Annexure “B””
[11]
Annexure ‘B’ of the Agreement sets out the criteria for
promotion from rank of Warrant Officer to Captain, Warrant
Officer to
Lieutenant, and Captain to Major as follows;
·
“
Representivity
;
the representivity guidelines and number of posts be the baseline for
the filling of the posts, provided that in the case of the
same race
group only, male members may supplement the shortfall of female
members.”
·
Qualification
;
at least a NQF 4/equivalent qualification
·
Seniority
:
the most senior members (as on 30 June 2010) per each race group be
considered:
-
Limited to the number of posts per each
race group;
-
Provided that the number of years
service in the rank of Captain may not be less than 8 years service
in the rank of Captain;
-
To differentiate between members with
the same number of years service in the rank of Captain and of the
same race and gender, preference
be given to members with the most
years of service/public service;
-
To differentiate between members of the
same seniority and race and gender, preference be given to members
with NQF 6 and higher
qualifications.”
·
Uninterrupted service in the Service
;
a minimum of one year uninterrupted service in the Service on the
level of Warrant Officer as of 30 June 2010.
·
Performance
;
at least an annual rating of satisfactory for the 2009/2010 PEP
performance cycle.
·
Suitability
;
suitability for promotion to function effectively at the next higher
level which may be affected by any convictions/pending cases-criminal
and/or departmental.
·
Transferability
;
be willing to be transferred to a vacant post identified by the
relevant Provincial/Divisional Commissioner (in consultation with
his/her Human Resources Utilization/Personnel Management and
management Services
[12]
The Agreement in question is a Collective Agreement as contemplated
within the meaning of
section 213
of the LRA.
Section 23
of the LRA
regulates the legal effect of collective agreements and provides
that;
“
(1)
A collective agreement binds-
(a) the parties
to the collective agreement;
(b) each party to
the collective agreement and the members of every other party to the
collective agreement, in so far as the provisions
are applicable
between them;
(c) the members
of a registered trade union and the employers who are members of a
registered employers' organisation that are party
to the collective
agreement if the collective agreement regulates-
(i) terms and
conditions of employment; or
(ii) the conduct
of the employers in relation to their employees or the conduct of the
employees in relation to their employers;
(d)
employees who are not members of the
registered trade union or trade unions party to the agreement if-
(i)
the employees are identified in the
agreement;
(ii)
the agreement expressly binds the
employees; and
(iii)
that trade union or those trade
unions have as their members the majority of employees employed by
the employer in the workplace.
[13]
Other than contending that the Agreement is unlawful and breaches the
provisions of the Constitution and those of the EEA,
Adv Brassey on
behalf of Solidarity further submitted that Solidarity did not deem
itself bound by it. This contention however
has no merit in the light
of the following pertinent clauses of the Agreement;
Clause
6 provides that;
SCOPE
OF APPLICATION
“
This
agreement applies to all employees appointed in terms of the
provisions of the
South African Police Service Act, 1995
as well as
the Public Service Act, 1995 (where applicable)”
And
clause 8 provides that:
“
This
agreement binds the parties to the agreement and all employees who
are not members of a registered trade union admitted to
the Sectoral
Bargaining Council, as well as all members of registered trade unions
admitted to this Sectoral Bargaining Council
who are not parties to
this agreement”
And
Clause 9 which provides that:
“
This
agreement shall be subject to the provisions of any applicable Act of
Parliament, or secondary legislation promulgated in terms
thereof”
[14]
In the light of the above provisions, it cannot therefore be correct
that this Agreement is not binding on members of Solidarity,
who are
in the service of the SAPS. The submission made on behalf of
Solidarity that clause 8 of the Collective Agreement is irrelevant
has no merit in that by virtue of the provisions of section 23 (1)
(d) (i) and (ii) of the LRA, its members have been identified
and/or
expressly deemed to be bound by clauses 6 and 8 of that Agreement.
More significantly, I did not understand from Solidarity’s
pleadings that it had always been its case that the Agreement was not
binding on it, and for all intents and purposes, since arguments
in
this regard appear mainly to have been made from the bar, nothing
further turns on them.
[15]
The fact that the Collective Agreement is binding on members of
Solidarity is however not the end of the matter, as it is trite
that
a Court should intervene where the provisions of an agreement which
is the product of collective bargaining offends against
the
principles and values of our Constitution
[6]
,
or where the enforcement of a collective agreement provision may
result in an injustice or unfairness, or where the provisions
are
plainly unlawful.
[16]
A collective agreement such as the one that is being impugned given
its context and purpose is subject to the Constitution
and the
Employment Equity Act
[7
]
, and
the fact that it was a product of negotiation does not necessarily
make it fair or lawful
[8]
.
Section 3
of the EEA requires that Act to be interpreted in
compliance with our international law obligations and in particular,
International
Labour Organisation Convention (111) concerning
Discrimination in Respect of Employment and Occupation. In regards to
agreements,
Article 2(e) of the ILO Recommendation of 1958 calls upon
member states to ensure that collective agreements do not contain
provisions
of a discriminatory nature. Thus parties may not contract
out of the fundamental rights and protections afforded under the
Constitution
or the EEA to the
undue
detriment of non-parties to that agreement.
The
legal framework:
[17]
Human dignity, the achievement of equality, the advancement of rights
and freedoms, non-racialism and non-sexism are the founding
values of
our constitutional democracy
[9]
.
It was contended on behalf of the First and Third Respondents that
Solidarity was not entitled to rely directly on the provisions
of the
Constitution when there was legislation which gave effect to the
right in issue, and that the principle of constitutional
subsidiary
prohibited the direct reliance on the Constitution
[10]
.
The issue however is that the arguments raised in this application
goes to the heart of our employment equity dispensation, and
it would
be remiss of this Court not to consider this matter within the
context of our constitutional framework. Notwithstanding
the
objection raised thereto, and since the issue of equality is central
to this dispute, the starting point for our purpose should
be section
9(2) of the Constitution, which expressly provides that;
“
Equality
includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and
other measures
designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be
taken.”
And,
Section 9 (3) of the
Constitution, which provides that;
“
The
state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender sex,
pregnancy,
marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief,
culture, language and
birth”
[18]
The
Employment Equity Act was
designed to give effect to the above
constitutional right to equality, and since a number of its
provisions appear to be the basis
of Solidarity’s objections to
the Agreement, it would be useful to re-state those provisions in
full.
Section 6
[11]
specifically prohibits unfair discrimination, whilst
section 6
(2)
(a) and (b) provides that it is not unfair discrimination to take
affirmative action measures consistent with the purpose of
this Act;
or distinguish, exclude or prefer any person on the basis of an
inherent requirement of a job.
Section
15(1) of the EEA defines affirmative action measures as –
“
...
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.”
And
Section
15 (2)
[12]
provides that the
affirmative
action measures 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.
[19]
Section 15 (3) provides;
“
The
that the measures referred to in subsection (2) (d) include
preferential treatment
and
numerical goals, but exclude quotas
”
And,
Section15
(4) further provides that;
“
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”
[20]
Solidarity does not question the Collective Agreement as an
affirmative action measure as contemplated in section 15(1) and
authorized by 6 (2) (a) of the EEA. It however argued that the
impugned Agreement was in conflict with the provisions of section
15
(3) of the EEA, which provides that measures referred to in
subsection (2) (d)
[13]
should
include preferential treatment and numerical goals, but excludes
quotas.
[21]
From the reading of section 9 (2) of the Constitution, read together
with section 6 (1) and (2) of the EEA, it is apparent
that the
purpose of affirmative action measures is to advance persons from
designated groups and it is ameliorative in nature.
It seeks to
advance people prejudiced by past discrimination and injustices, to
create equality in opportunities and to correct
imbalances in social
standings between people from different groups. As Moseneke ACJ held
in
South
African Police Service v Solidarity obo Barnard
[14]
(Barnard)
;
“
We
must remain vigilant that remedial measures under the Constitution
are not an end in themselves. They are not meant to be punitive
nor
retaliatory. Their ultimate goal is to urge us on towards a more
equal and fair society that hopefully is non-racial, non-sexist
and
socially inclusive.”
[22]
In the light of our painful history of sustained and
institutionalized discrimination, the debates surrounding the
purpose,
efficacy and even the legitimacy of affirmative action
measures will linger on for generations. The overall consequences of
the
legacy of institutionalized discrimination are deeply embedded in
the polity, society and economy of the country and will not be
resolved overnight, even in the face of the political transformation
that has occurred and the elimination of discriminatory laws
and
practices.
[23]
The drafters of the
EEA never envisaged the
implementation of reverse racism when they had affirmative action
measures in mind. Their intentions were
always noble and in
addressing the imbalances of the past, it was indeed foreseen that
the implementation of remedial measures
such as affirmative action
will always lead to unequal treatment of others in the short term, in
the interests of ultimately achieving
equity in the long term. It was
in the light of these considerations that the provisions of section
15 (4) of the EEA were carefully
worded to ensure that those excluded
from affirmative action measures do not face absolute barriers in
their future or continued
employment, it being appreciated that that
they also enjoy protection against discriminatory policies and
practices.
[24]
The EEA requires that a designated employer must, as part of its
Employment Equity Plan, determine numerical goals
[15]
to achieve equitable representation of suitably qualified people from
all designated groups, including persons with disabilities,
within
each occupational category of the workforce. However, affirmative
action measures are 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. It could never have been
intended with these measures that mediocrity, ineptness
and a sense
of entitlement should be promoted
[16]
.
[25]
It therefore follows that those excluded from such measures, but who
steadfastly hold the view that they are more suitably
qualified or
worst still, were equally affected by past discriminatory practices
will feel hard done or discriminated against.
Van der Westhuizen J in
Barnard
[17]
held that
the
appropriate assumption under our constitutional framework was that
restitutionary or affirmative measures should be welcomed
rather than
viewed with suspicion, and that they must be understood as
equality-driven mechanisms in their own right, rather than
carve-outs
from what is discriminatory. That assumption will however not in the
short-term turn into reality and be fully appreciated
by those
excluded from these measures.
This
should be expected, in that our approach towards equality should
unashamedly go beyond mere equal treatment (formal equality)
of
individuals, to some understanding of historical, social and economic
equality between individuals and groups (substantive/restitutionary
equality)
[18]
. That approach
must for all intents and purposes, take into account the historical
context within which those who are currently
privileged or hold
positions of seniority within the public service find themselves in
those positions
[19]
.
[26]
It should not be forgotten that the apartheid government used the
public service with good effect in effecting its wayward
policies
including job reservation. To put on blinkers to these historical
realities in our approach towards an equal society,
and to attempt to
redress inequality with the starting point as the adoption of the new
Constitution in 1996 is doomed to fail.
Our struggle for equality
goes beyond 1996, and any contrary approach would merely address the
symptoms rather than the root cause
of inequality.
[27]
Equally important is the fact that caution however has been drawn to
how these measures are to be implemented. Thus, they must
be
implemented in a way that advances the position of people who have
suffered past discrimination, and they must not unduly invade
the
human dignity of those affected by them
[20]
.
The fact that measures falling within the ambit of section 9(2) of
the Constitution and section 6(2) of the EEA are protected
does not
however imply that they are immune from the scrutiny of the Courts
insofar as determining whether they are legitimate
restitution
measures within the scope of the empowering section 9(2) of the
Constitution, and secondly, whether the properly adopted
restitution
measures were correctly and legitimately applied
[21]
.
This is according to the Constitutional Court in
Barnard
,
necessitated by the fact that a validly adopted Employment Equity
Plan must be put to use lawfully, and may not be harnessed beyond
its
lawful limits or applied capriciously or for an ulterior or
impermissible purpose
[22]
.
[28]
The Constitutional Court in
Barnard
further held that a measure taken pursuant to section 9(2) and
falling properly within the scope of the section will not offend
the
provisions of section 9(3) as it will not be unfair discrimination on
the grounds of race. Affirmative action measures are
however not a
license for reverse discrimination as already pointed out, nor are
they an end in themselves. In order to pass constitutional
muster,
they must meet the test laid out by Moseneke J (as he then was) in
Minister
of Finance and another v Van Heerden
[23]
in the following terms:
“
It
seems to me that to determine whether a measure falls within section
9(2) the enquiry is threefold. The first yardstick relates
to whether
the measure targets persons or categories of persons who have been
disadvantaged by unfair discrimination; the second
is whether the
measure is designed to protect or advance such persons or categories
of persons; and the third requirement is whether
the measure promotes
the achievement of equality”
[29]
In regards to the first leg of the enquiry, the reality and irony of
the consequences of the grand design of the system of
apartheid is
that eligibility for affirmative action measures will continue to be
determined by the very stratification formerly
used by that system.
Race and gender conscious categorization is and will continue to be
necessary for the eradication of disadvantage
and attainment of
equality, which our Constitution implores us to achieve. It is in the
light of these considerations that section
1 of the EEA identifies
race (Black), gender and disability as the criteria to determine
eligibility for affirmative action benefits.
This group is branded
“designated” and there is no reason to doubt that it was
this group that bore the ultimate brunt
of the system of apartheid.
[30]
The measure designed to protect or advance such persons or categories
of persons can only be in terms of a formal and carefully
thought out
plan
[24]
in order to avoid
arbitrariness in its implementation. Section 20 of the EEA prescribes
that the employment equity plan must achieve
reasonable progress
towards employment equity in the workforce.
[31]
In regards to the third leg of the enquiry, the measure must have as
its main objective, the attainment of substantive equality.
As stated
in
Van
Heerden
[25]
;
“
Determining
whether a measure will in the long run promote the achievement of
equality requires an appreciation of the effect of
the measure in the
context of our broader society. It must be accepted that the
achievement of this goal may often come at a price
for those who were
previously advantaged. Action needs to be taken to advance the
position of those who have suffered unfair discrimination
in the
past. As Ngcobo J observed in Bato Star:
“
The
measures that bring about transformation will inevitably affect some
members of the society adversely, particularly those coming
from the
previously advantaged communities”.
(Citations
omitted)
[32]
What has to be determined therefore in the light above
background is whether the Collective Agreement impugned as an
affirmative
action measure passes the constitutional test set out in
Van Heerden
and
Barnard
for the purposes of section 9
(3) of the EEA. A few matters aligned to this application however
should be disposed of prior to dealing
with the main arguments.
[33]
The Collective Agreement is an affirmative action measure as conceded
by Solidarity. For the purposes of these proceedings,
I did not
understand Solidarity’s case to be that it challenged the
Employment Equity Plan as adopted in the Collective Agreement
in its
form, nor were the numerical targets set out in that Plan challenged.
It is common cause that Solidarity has since lodged
an application in
this Court under case number J879/12 to seek an order setting aside
the SAPS’ current Employment Equity
Plan on the basis that it
does not comply with the Constitution and other various statutory
enactments. That matter is pending
before this Court. Furthermore,
Solidarity’s application in this Court under case number: J
2145/14 to seek an order that
it be consulted at the level of the
SSSBC in respect of the design of the Employment Equity Plan itself
was dismissed, and an appeal
has since been lodged in that regard.
[34]
For the purposes of this application, and since it was accepted by
Moseneke ACJ in
Barnard
that
the validity of the SAPS Employment Equity Plan (A collective
agreement) nor its fairness was not placed in question, the Plan
is
indeed a valid affirmative action measure authorized by
section 6(2)
of the
Employment Equity Act
[26
]
.
Equally more important is that the Plan passes the three-pronged test
laid out in
Van
Heerden
and
Barnard.
In
this regard, Van der Westhuizen in a separate but concurring judgment
in
Barnard
held that;
“
The
constitutional validity of the Act was not attacked. Section 6(2) of
the Act specifically states that affirmative measures do
not
constitute unfair discrimination. The Employment Equity Plan as a
measure (with its accompanying guidelines) passes the first
two
prongs. It identifies and targets categories of persons previously
disadvantaged by unfair discrimination and categorises them
in
designated groups which must be advanced and promoted according to
numerical targets”
[27]
And,
“
Therefore
the implementation of the measure satisfies the third leg of the Van
Heerden enquiry in that it promotes the achievement
of
equality….”
[28]
[35]
The fact that the Employment Equity Plan is a valid affirmative
action measure, or that it passed the
Van Heerden
test does
not however necessarily imply the same with the Collective Agreement
impugned despite it being accepted as an affirmative
action measure.
This is so in that unlike the Plan, which normally has a lifespan of
five years, the Agreement was put in place
for a particular purpose,
and as a once-off measure or process, to populate the ranks as per
the new structure over a period of
24 months. Although in
implementing the Agreement numerical targets set out in the Plan were
adapted, the Agreement has its own
unique features, which as I
understand Solidarity’s arguments are on their own or as
implemented with the Plan, objectionable.
The
main submissions:
[36]
Solidarity argued that in the scheme, the selections for promotion
were made within ‘silos’ defined by race and
gender. As I
understand the argument, the implication is that individual members
were promoted or populated into the ranks solely
from a fixed pool of
individuals as defined by race and gender, and without any scope of
manoeuvre or flexibility, and to the exclusion
of other
considerations. In amplification thereof, Solidarity further
submitted that;
36.1
The Agreement created silos based on race and gender within which
seniority is to be evaluated, and it mechanically
bases promotion on
the results of this analysis. Accordingly, it was argued that the
numbers were merely put in machines (silos)
within race groups,
resulting in rigidity, quotas, and non-consideration of individual
attributes, thus not achieving equitable
representation.
36.2
The scheme, taken as a whole, is arbitrary, and displays a naked
preference or amounts to quotas in implementation.
Since the
Agreement
propagated the numerical allocations,
this amounted to the use of a quota system, which was specifically
prohibited by the EEA.
36.3
The measures taken in terms of that Agreement amount to unfair
discrimination, and in the alternative, the
Agreement amounts to
nothing other than a quota system.
36.4
No effort was made to determine how individuals are to be treated by
reference to their performance, the
disadvantage they might
personally have suffered, or the needs of the service.
36.5
The allocation of posts according to race created an assumption that
equitable allocation was an end when
in reality other elements of the
plan were not incorporated.
36.6
By making representitivity the ‘baseline for the filling of the
posts’, the Agreement thus gave
officers a right to promotion
on the basis of length of service (formal criteria aside) within the
silos of race and gender it
postulated.
36.7
Solidarity emphasized that it not contest the need for affirmative
action, but however contended that the
mechanical application of
numerical quotas in order to secure demographic representation was
impermissible.
36.8
Solidarity further contended that SAPS made no serious effort to deny
that the Agreement created a structure
of quotas, but however sought
to justify the use of such quotas as sanctioned by the constitutional
imperative to remedy past discrimination
based on race and gender. It
disputed that the scheme was not applied inflexibly or that there
were any deviations from its terms
as implemented.
[37]
The arguments advanced on behalf of POPCRU were
that the applicants’ case was untenable, with certainty in
respect of the
challenge to the promotions effected based on racial
considerations having been made in
Barnard.
POPCRU argues that the measures taken
are affirmative action measures which do not unfairly discriminate
against members of the
SAPS based on their race, but rather the
measures have been taken to address past disparities which still
perpetuate the employment
demographics today and that these have been
done lawfully and fairly in accordance with the Employment Equity
Plan.
[38]
It was submitted on behalf of the first to third respondents
that the scheme in issue herein passes the test in
Van Heerden
and
Barnard,
as it targets a particular class of persons, namely,
the promotion of black people and women, in accordance with their
population
representation.
The scheme identified
and targetted categories of persons previously disadvantaged by
unfair discrimination, and categorised them
in designated groups
which must be advanced and promoted according to numerical targets as
envisaged in the Employment Equity Plan.
It was further submitted
that the scheme promoted the achievement of equality which
could not be achieved without taking into account
the extent to which each designated group was numerically represented
in the workplace.
Evaluation:
(a)
The outcomes of the implementation of the collective agreement:
[39]
Since it is more the implementation of the Agreement that is under
attack rather than its form as an affirmative action measure,
the
starting point would be to examine how it was implemented.
The
Collective Agreement does not indicate the number of positions to be
allocated to each racial and gender group but simply refers
to the
seven criteria to be applied. SAPS contention is that guidelines in
this regard are set out in the Employment Equity Plan,
which aims
to
inter alia,
promote the constitutional right to equality,
the elimination of unfair discrimination, the proper and effective
implementation
of employment equity in order to redress the effects
of past practices and to achieve a diverse workforce broadly
representative
of the South African community. The Plan further
affirms SAPS’ commitment to ensuring broad representation of
its Human Resources
based on racial, gender and disability
demographics. This is to be implemented in all occupational
categories/levels/classes nationally
and provincially in relation to
each and every workplace.
[40]
The Plan however refers to the 2006 national
demographic estimates and utilises same as the employment equity plan
targets which
the SAPS strives to attain by 2014. The 2006 national
demographics estimates were 79.35% for Africans, 9.34% for Whites,
8.85%
for Coloureds and 2.46% for Indians. The Plan envisages ‘ideal’
race representation targets and ‘realistic’
ones with the
application of targets to be applied differently depending on the
level occupied by the relevant member during its
lifespan.
The
Plan is further divided amongst levels of employees in the SAPS
hierarchy being:
Ø
Senior Management Level – salary
levels 13 – 16;
Ø
Middle Management Level –
salary levels 9 – 12;
Ø
Junior Management Level – salary
level 8;
Ø
Production Level – salary levels 1 –
7;
[41]
When effecting the promotions in accordance with the Collective
Agreement, SAPS utilised the above principles and national
demographics to allocate the available positions between the relevant
race and gender groups. It needs to be said at the outset
that SAPS’
approach in utilising the national demographics cannot be faulted,
for the simple reason that the Plan and the
numerical targets set out
therein remains unassailable following from
Barnard
.
[42]
The applicants for the posts were further informed that in terms of
the promotion criteria as contemplated in Annexure B of
the
Agreement, the most senior members per each race and gender group,
limited to the number of posts per race group, had to be
considered
for promotion, and not all members that met the minimum requirements
were to be promoted. The Agreement further made
it clear that
seniority in the ranks was only applicable within each specific race
or gender group. It is common cause that the
number of members who
qualified for the promotions far exceeded the number of members who
were promoted with differing discrepancies
in the different racial
and gender groups.
[43]
As a consequence of the first phase of the implementation of the
Agreement and the Plan in 2012,
a total of 5209 members were
promoted to the ranks of Lieutenant, Captain and Major with effect
from 1 April 2011. A lot more people
than the 5209 qualified to be
promoted, but only a few were actually promoted. During the second
implementation phase in 2013,
1 838 posts were made available, and 1
645 members were promoted to fill those positions.
[44]
In promoting members to the ranks of Lieutenant, Captain and Major
(respectively), SAPS relied on the criteria set out in Annexure
B of
the Agreement, as well as the Plan. The figures of appointments from
those that qualified and those that were promoted according
to race
groups are as follows;
Qualified for
Lt/Captain:
Promoted:
Qualified for
Major:
Promoted
African males –
21 393
2 951
African males –1
033
308
African females –
902
764
African females
–108
105
Coloured males –2
785
187
Coloured males -
201
25
Coloured females
– 269
203
Coloured females
– 47
23
Indian males –
1 270
48
Indian males -262
7
Indian
females-123
51
Indian females-
55
7
White males-7
032
186
White males-1
431
27
White females-1
801
178
White females-
461
24
[45]
When promoting members to the rank of Lieutenant, Captain and Major,
the criteria set out in Annexure B of the agreement as
well as the
Plan was utilized and the following allocations/appointments were
made;
To
the rank of Lieutenant;
African:
Males -1514 Females-1515
Indian:
Males - 47 Females- 47
Coloured:
Males -169 Females – 169
White:
Males – 178 Females – 178
To
the rank of Captain:
African:
Males – 20 Females – 742
Indian:
Males – 0 Females – 1
Coloured:
Males – 0 Females – 49
White:
Males – 0 Females – 0
To
the rank of Major:
African:
Males – 204 Females – 203
Indian:
Males – 6 (7) Females – 6 (7)
Coloured:
Males – 23 (25) Females – 23
White:
Males – 24 (27) Females - 23
[46]
It was not disputed that in populating these positions at the level
of Major, the representivity guidelines set a target of
24 White
males for promotion and 27 were instead promoted; the targets for
coloured males was 23 whilst 25 was promoted; the target
for Indian
males was 6 but 7 were promoted; for Indian females it was 6 however
7 were promoted. A similar variance between the
targets and actual
promotions was found in the population of posts at the level of
Lieutenant.
[47]
The sticking point as appears from the above figures is the
appointments made at the level of Captain, where members from the
White race, Coloured and Indian males were not appointed. This was
however to be expected in view of the variance between the ‘ideal’
race representation targets set by the Plan for each year between
2010 and 2014, and ‘realistic’ race representation
targets set at all levels, more in particular for 2014. It was
not in dispute that race representation at the levels of Senior
Management (Salary level 13 -16) and middle management (Salary levels
8-12) was still a concern as white members were overpopulated
at
those levels. This is apparent from the above figures, which shows
that more white male members qualified for promotion at all
the
ranks. Only in respect of the position of Lieutenant/Captain did
African Males surpass the number of white males who qualified,
and
the number of white female members that qualified for promotions at
all levels surpassed that of African females, Coloureds
and Indians.
[48]
The population of the new ranks was effected in accordance with the
numerical targets as contained in the Plan, with minor
deviations as
indicated above. It has already been accepted that the Plan as
adopted and as implemented is an affirmative action
measure
contemplated in section 6 (2) of the EEA; that the Plan is a measure
that targets persons or categories of persons who
have been
disadvantaged by unfair discrimination; and further that the Plan is
designed to protect or advance such persons or categories
of persons,
and promotes equality. In the light of these considerations, it is
indeed mind boggling for Solidarity to persist with
the argument that
notwithstanding the validity of these numerical targets and from the
text of the Agreement, the latter propagates
a quota system. These
numerical targets are sourced from the Plan and were adapted to the
positions available.
[49]
The Constitutional Court in
Barnard
accepted that the EEA did
not allow strict and rigid quotas to be enforced, but did allow an
employment equity plan to set targets
to be pursued by an employer.
It was also held that rigid quotas would in effect place an absolute
bar on the employment or promotion
of a member of a privileged group,
and having considered the SAPS’ employment equity plan, the
Constitutional Court also
held that it did not impose such rigid
quotas and neither did the manner in which the Plan was being
implemented. However since
Solidarity persists that the Agreement
propagates ‘quotas’ within ‘silos’, it would
be useful to examine
what this term implies as against what the
Agreement sought to achieve.
(b)
“Quotas”
[50]
The term “quota” is not defined in the EEA, and Moseneke
ACJ in
Barnard
had refrained
[29]
from
attributing any meaning to it, other than to state that;
“
Let
it suffice to observe that the primary distinction between numerical
targets and quotas lies in the flexibility of the standard.
Quotas
amount to job reservation and are properly prohibited by section
15(3) of the Act. The same section endorses numerical goals
in
pursuit of work place representivity and equity. They serve as a
flexible employment guideline to a designated employer.”
[30]
[51]
The terms ‘
quota’
and ‘
numerical
goals’
found elucidation in
Munsamy
v The Minister of Safety and Security
[31]
.
Katz
AJ in
South
African Restructuring And Insolvency Practitioners Association v
Minister of Justice And Constitutional Development and Others;
In Re:
Concerned Insolvency Practitioners Association NPC and Others v
Minister of Justice And Constitutional Development and Others
(“SARIPA”)
[32]
explored further meaning to the terms and held that:
"Some
guidance as to the distinction between targets and quotas can be
obtained from American jurisprudence. In Local 28, Sheet
Metal
Workers’ International Association v EEOC, quotas and targets
were distinguished as follows:
‘
A
quota would impose a fixed number or percentage which must be
attained, or which cannot be exceeded, and would do so regardless
of
the number of potential applicants who meet necessary
qualifications.... By contrast, a goal is a numerical
objective,
fixed realistically in terms of the number of vacancies
expected, and the number of qualified applicants available in the
relevant
job.’
In
the South African context, Klinck & Nwena state:
‘“
Quotas”
refer to all preferential techniques that have the effect of
reserving all or a fixed percentage of job opportunities
for
designated groups. This may be achieved through the setting
aside of a specific number of positions for designated groups
or by
making designated group status the only or dominant criterion for
eligibility for employment opportunities.’
According
to Andre M Louw, quotas in the employment equity context are
‘mandatory and represent a fixed number to be achieved,
apparently at any cost’, whilst targets are non-mandatory
guidelines to achieve representation from designated groups in
the
workforce. Further, he argues that application of quotas is
‘generally divorced from reality and the circumstances
of the
specific situation in which they are applied’. Louw
argues that a target or numerical goal established in an
Employment
Equity Plan will only be legitimate if regard is had to the factors
listed in
s 42
of the
Employment Equity Act. An
element of such
goal-setting is that it must be realistic in context.
What
is clear, is that what is impermissible is rigidity – however
it is named
.” (Citations and references omitted)
[52]
The drafters of the EEA were careful to use the word ‘
numerical
goals’
rather than ‘
quotas’
.
The difference in the use of these terms is not semantic, and flowing
from the distinction made in
Barnard
and
other authorities referred to above, it is useful to add that
‘
numerical goals’
or ‘
targets’
within the context of employment equity plans are often voluntarily
agreed between parties to set objectives and guidelines. Parties
by
agreement can adjust these numerical goals, and the EEA does not make
provision for parties to be sanctioned when they do not
meet those
numerical goals.
To the extent that it
might be argued that Schedule 1 of
section 65
of the EEA imposes
fines in the event of its contravention, these fines are in respect
of specific contraventions identified in
the Schedule, being
sections
16
,
19
,
20
,
21
,
22
and
23
of the EEA. None of these provisions
however speak of ‘
quotas’
.
[53]
“
Quotas”
on the other hand are externally imposed, (e.g by way of legislation,
policy, regulations or even practice) and the failure to
meet them is
usually met with a sanction.
They denote a
limitation
;
a
fixed amount; or a maximum
of something related to a number, quantity, share, allocation or
value, which an individual, individual group or entity is permitted
or entitled to. ‘Quotas’ are an end in themselves, as
they do not permit flexibility unless there is a change to the
tool
that enforces them.
[54]
Racial or gender quotas as applied within the workplace as indicated
in
Barnard
equate to job reservation, and furthermore attract
negative connotations and for good reasons. Not only are they
inherently and
irrationally discriminatory, they are also demeaning
in implementation in that they fail to acknowledge an individual’s
worth.
In most instances, and unwittingly so, they promote mediocrity
and incompetence, and instil a false sense of entitlement. Invariably
and whether rightly or wrongly, beneficiaries of the quota system
will always be viewed as inferior and incompetent, as the assumption
will always be that they got recognition or appointment simply to
make up the numbers rather than based on their suitability or
competencies. In a society such as ours and in our workplaces, where
we are still battling the demons of racial polarisation and
tensions,
the use of quotas adds fuel to those tensions and creates further
suspicions and resentment. Any affirmative action measure
based on
quotas is inherently ‘arbitrary, capricious and displays naked
preference’, and would accordingly not pass
constitutional test
as stated in
Van Heerden
and
Barnard
.
[55]
POPCRU’s
contention was that
Solidarity’s
argument about “absolute quotas” being applied was
plainly wrong as there was no “absolute
barrier” to the
promotion of white people in the SAPS especially in accordance with
the Plan or Agreement. It argued
that the same argument was
dismissed by the Constitutional Court in
Barnard
[33]
,
and that employees from each designated group were promoted and
numeric targets set for each race group were not rigidly observed.
[56]
The first and third respondents denied that the scheme was based on a
quota, contending that the population of the ranks was
informed by
the Agreement, which set out seven criteria in its Annexure B. In
regards to the criteria of ‘representivity’,
no
percentages or numbers were used or taken into account, and that for
the rational implementation of the process, the number
of posts
available (5 209), had to constitute the baseline for the filling of
those posts.
[57]
I am in agreement with the contentions made on behalf of the
respondents that the Agreement cannot propagate the use of quotas
as
alleged, for the simple reason that
the
numerical goals and targets set out in the Plan were a result of an
agreement between POPCRU, SAPU and SAPS at the level of
the SSSBC.
The fact that Solidarity was not a party to the setting of these
numerical goals does not turn them into qoutas.
[58]
The difficulty with the submissions made on
behalf of Solidarity is that it seeks to divorce the Agreement from
the Plan, and treat
each as a stand-alone affirmative action measures
when this is not the case. Having looked at the characteristics of a
‘quota’,
there is nothing in the Agreement that remotely
resembles any reference to fixed numbers according to race or gender
for the purposes
of populating the ranks. As correctly pointed out on
behalf of the respondents, the Agreement sets out seven criteria for
eligibility
for promotion, and not a single reference is made in the
Agreement to any number or figure. It therefore follows that the
baseline
for the filling of those posts had to be informed by the
posts created as a result of the new structure, and there was
therefore
no other equitable way of allocating those posts other than
in accordance with the numerical targets as set out in the Plan. The
numerical targets were
realistic in terms of the number of
vacancies that arose as a result of the new structure, and the number
of members that qualified
in terms of the criteria set out in the
Agreement.
[59]
It therefore follows that for SAPS to have adopted any other method
of allocation on its own, and outside of the Plan, this
would indeed
have led to arbitrariness. There is no basis for a conclusion to be
made that the
application of numerical targets in accordance
with the Plan in order to secure demographic representation in
implementing the Agreement
was impermissible. There is no substance
in the allegation that the Collective Agreement propagated the use of
quotas. The scheme,
taken as a whole, was not arbitrary, nor did it
display a naked preference in implementation. The Agreement was
implemented in
populating the ranks taking into account numerical
targets in accordance with the Plan, and this could not possibly have
led to
the infringement of the provisions of the EEA.
(c)
“Seniority”
[60]
It is further not correct that the Agreement created silos based on
race and gender within which seniority was to be evaluated,
or that
the Agreement mechanically based promotion on the results of this
analysis. There was a justifiable reason for the Agreement
to require
that the most senior member be considered per each race group as can
be gleaned from the number of white members who
qualified for
promotion as pointed out elsewhere in this judgment. Solidarity views
this approach as a creation of silos, when
in fact that approach was
the most rational, equitable and sensible way of ensuring
representivity at all senior levels. To have
assessed seniority on a
general level would not have achieved the desired results.
[61]
To the extent that the argument surrounding quotas has been rejected
in this judgment it follows that the use of the term ‘silo’
loses any meaning or relevance. Furthermore, emotionally charged
terms used in the applicants’ pleadings such as ‘
social
engineering’
; and ‘
race and gender profiling’
and their relevance to the Agreement were not pursued with any
seriousness by Adv Brassey, and will not receive any attention in
this judgment. It however needs to be mentioned that in my view,
these terms, where bandied without any form of justification have
no
place in a society still grappling with the after effects of an evil
system of apartheid. We do not need to be reminded that
the apartheid
system adopted and implemented the very mechanisms of social
engineering and race profiling with such profound effect
in achieving
its evil ends.
[62]
It was not in dispute that seniority was one of the seven criteria
used in implementing the Agreement, and within that criteria,
there
were several considerations to be taken into account. In my view,
there was nothing unlawful or unfair for instance, where
seniority
had to be looked at in terms of the most senior member within each
race group and allocate posts according to the Plan’s
numerical
targets, especially given the number of white males who qualified for
promotions as against members from designated groups.
If this was not
the case, the following scenario by way of an example would have
ensued;
[63]
A total of
7 032 White males
qualified for promotion to
the rank of Lieutenant or Captain. If the number of African males who
qualified is excluded, a total
of
7 150 comprising of African
females (902); Coloured males (2 785); Coloured females (269); Indian
males (1270) and Indian females
(123))
also qualified for the
rank of Lieutenant or Captain. The argument that seniority was a more
important consideration and that SAPS
should have looked at this
criteria in general without seeking to determine it per each race
group however loses sight of the overall
objective of attaining
substantive equality. It implies that notwithstanding the aims of the
affirmative action measure, more White
males at that level would
still have been promoted to the disadvantage of members of the
designated group purely on the grounds
of seniority. This could not
in my view be countenanced as it would merely have perpetuated the
racial imbalances at that level.
[64]
Solidarity’s main complaint appears to be that the effect of
the Agreement was that even though a white member of SAPS
was senior
and complied with the minimum or even exceeded the requirements, if
the number of positions allocated to a specific
race group were
filled, he or she could not be promoted, notwithstanding the fact
that a number of designated employees with far
less seniority were
promoted only due to the larger number of positions allocated to that
race group.
[65]
We need to be reminded that one of the grand designs of the apartheid
system was that seniority, especially within the public
service was
always associated with whiteness, and to be more precise, white male.
This unfortunately created a false sense of entitlement
which cannot
be allowed to persist if we are to attain equality within the
workplace. Solidarity’s argument is with
respect devoid
of any logic, and refuses to accept the whole purpose and scheme of
substantive equality dealt with elsewhere in
this judgment. The
argument surrounding seniority in effect seeks to perpetuate a lack
of representivity at certain senior levels,
and defeat the aims of
restitutionary measures. It overlooks the historical context within
which a majority of white male members
of SAPS in particular found
themselves in those positions of seniority.
[66]
Inasmuch as the scheme of affirmative action is prohibited from
propagating job reservation, it cannot in the same vein face
opposition simply to permit or perpetuate job reservation in
disguise. It needs to be emphasised that
there
is nothing wrong in challenging an affirmative action measure if it
does not meet constitutional requirements. There is however
something
inherently wrong, when those measures are challenged simply to
sustain privileges accumulated from the apartheid system.
This point
could never have been made more emphatic than in
Pretoria
City Council v Walker
[34]
,
as
referred to by POPCRU
,
where
the Constitutional Court held that
;
“
Courts
should, however, always be astute to distinguish between genuine
attempts to promote and protect equality on the one hand
and actions
calculated to protect pockets of privilege at a price which amounts
to the perpetuation of inequality and disadvantage
to others on the
other.”
[67]
The grand scheme of the SAPS Employment Equity Plan as implemented
with the Collective Agreement and the other criteria set
out therein
seeks to dispel the notion that white seniority is might and more
competent. The criteria of seniority alone cannot
put the brakes on
SAPS’ transformative agenda. Inasmuch as Solidarity appreciates
that representivity should be broad and
equitable as required by
section 195 (1) of the Constitution, it nevertheless holds the view
that this can only be achieved on
its own terms, and on the
assumption that perpetuation of the status quo is defensible. The
implementation of the Agreement in
pursuance of demographic
representation by SAPS is what is required of it in terms of its
Plan. That Plan is for now unassailable,
and accordingly meets the
constitutional test. Furthermore, any assertion that seniority is
completely ignored is dispelled by
the items under that criteria that
must be considered, one of them being that: “
To
differentiate between members with the same number of years in the
rank of Warrant Officer and of the same race and gender, preference
be given to members with the most years in the Service/public
Service”
. Other considerations
taken into account in this regard includes whether a member has NQF
and higher qualifications. Furthermore,
even if there was any merit
in the ‘seniority’ argument,
Section 20(3) of the
EEA makes it permissible to prefer persons with less qualifications
or experience when hiring or promoting
provided that they have the
capacity to acquire the ability to do the job within a reasonable
time. The raising of the ‘seniority’
flag within SAPS
cannot therefore on its own advance an argument against
transformation measures, because it simply seeks to perpetuate
white
male privilege.
[68]
In the light of what had been stated already, there is further no
substance to the contention that the scheme, taken as a whole,
is
arbitrary, and displays a naked preference or amounts to quotas in
implementation.
As to whether
any efforts
were made to determine how individuals were to be treated by
reference to their performance, the disadvantage they might
personally have suffered, their individual attributes or the needs of
the service, that is clearly a matter that required oral
evidence,
and for now, this remains a general observation on the part of
Solidarity. A broad allegation that the implementation
of the
Agreement failed to take into account certain personal attributes
cannot be sustained in the absence of evidence to show
that this was
indeed the case.
(d)
Service delivery
[69]
It cannot be in doubt that the needs of the service and effective
service delivery are equally paramount in making appointments.
SAPS
needs competent and dedicated members who would be equal to the task,
and in making such appointments, such individuals should
be “suitably
qualified’ as implored by section 15 (1) and (2) of the EEA.
Solidarity’s contention was that there was
“irrational pursuit of affirmative action measures”
which compromised
effective service delivery. I could not agree more
with POPCRU’s observation that the argument is insulting and
demeaning
to members of other race groups or gender for that matter,
who legitimately benefitted from these measures on no ground other
than
that they were deemed to be suitably qualified. The
argument further seeks to demean and belittle the restitutionary
measures
undertaken by SAPS. What can be read from the argument is
that the members appointed consequent to these measures are
incompetent,
unqualified, and merely appointed to make up the
numbers.
[70]
There is absolutely no justification for such an assumption to be
made as correctly pointed out on behalf of POPCRU, moreso
since any
such observation must be supported by evidence. Whether a candidate
is “suitably qualified’ cannot be based
on Eurocentric
notions or on any other racially based standard. It must be based on
the factors as set out in section 20 (3) of
the EEA. To this end, it
can thus be safely inferred that in the absence of any evidence to
support that the candidates appointed
did not meet any of the
criteria set out in the Agreement or section 20 (3) of the EEA, or
that their appointments would severely
prejudice service delivery,
any observations to the contrary can only be based on archaic racial
and gender stereotyping, which
unfortunately cannot assist in
advancing a sensible or coherent argument, nor be wished away through
legislative
measures.
(e)
“Performance”
[71]
One of the criteria set out in the Agreement is “performance”
as based on at least an annual rating of satisfactory
for the
(period) PEP performance assessment cycle. Again, to the extent that
this application is separated from that of the individual
applicants,
oral evidence to be led in the latter case might shed light on that
issue, as there is a need for comparisons to be
made between those
appointed and those that were not. However for now, it is accepted in
the absence of anything else that indeed
individual members’
performance was taken into account, as this is what the Agreement
implored SAPS to do.
(f)
“Rigidity”
[72]
One of the fundamental complaints raised in regards to the Agreement
was that it was rigid in implementation. Some aspects
of this
argument have already been dealt with above. However, Solidarity had
further contended that SAPS made no serious effort
to deny that the
agreement created a structure of quotas, but however sought to
justify the use of such quotas as sanctioned by
the constitutional
imperative to remedy past discrimination based on race and gender. It
argues further that in the alternative,
SAPS contended that the
system was in any event not applied inflexibly and deviations from
its terms in fact occurred. Some aspects
of these arguments have been
dealt with, but it is important that they be reiterated.
[73]
Despite Solidarity having pointed out that the first and third
respondents had not in their pleadings refuted that the Agreement
was
rigidly applied, it was submitted on the latter’s behalf that
the text of the Agreement was not suggestive of a rigid
or inflexible
approach, and that to the contrary, the Agreement suggests a flexible
approach as it used the words “
representivity guidelines”.
It was further contended that a guideline was neither
prescriptive nor mandatory, and sought to guide the decision maker on
factors
which must be taken into account in the course of making the
decision. Secondly, it was pointed out that the Plan itself made it
abundantly clear that the use of national demographics was not
intended as an inflexible standard, and that the very reason that
national demographics are to be used is to ensure that “
no
absolute barrier is placed with regards to the advancement with any
group within the SAPS”.
[74]
As it was already pointed out, the dilemma faced by Solidarity is
that it seeks to treat the Collective Agreement as an independent
affirmative action measure when this was not the case. There is a
difference between attacking a measure on account that it propagates
racism, inequality or inflexibility on its own, and asserting the
same arguments in regards to the actual outcome of the implementation
of that agreement. Clearly on its own reading the Agreement
encourages flexibility in the absence of specific numbers or quotas
being identified. In this case, amongst other things that were not
disputed was that even more members across racial lines were
promoted
despite the valid numerical allocations applicable. The vacant slots
were not endless to enable the placement of every
member or applicant
that qualified, and I am not convinced that in view of the limited
number of posts, the demands of the Plan
and the Agreement, that SAPS
would have sought to implement the Agreement without any variations.
[75]
There can be no quarrel with Solidarity’s contentions that at
the time when the ranks were to be populated, it was an
explicit
requirement of s 42 of the EEA that all relevant factors were to be
taken into account - such as the extent to which suitably
qualified
people from and amongst the designated groups are equitably
represented within the workforce in relation to: the demographic
profile of the national and regional economically active population;
and the pool of suitably qualified people from designated
groups from
which the employer may reasonably be expected to promote or appoint
employees.
[76]
The issue of the appointment of personnel that was ‘suitably’
qualified has been dealt with. The efficacy of the
use of demographic
profiles of the national and regional economically active population
has equally been dealt with within the
context of that the Plan,
which profile SAPS had to take into account. Be that as it may, and
as correctly pointed out on behalf
of the first and third respondent,
it is not for this Court to pronounce upon the validity of the
employment of national demographics.
Furthermore, as already
illustrated with the variations to the numerical targets as opposed
to actual appointments, there is no
basis to conclude that these
numbers or targets were implemented and applied rigidly and thus
created barriers. The application
of race and gender was not to the
exclusion of other factors which the Agreement implored SAPS to
consider. Where SAPS considered
personal attributes of applicants
within a particular race category as determined by reference to the
representation in the national
demographics, it cannot be faulted in
that regards moreso since the quest for substantive equality required
it to do so.
Conclusions:
[77]
The Constitutional Court in
Barnard
held that a measure taken
pursuant to section 9(2) and falling properly within the scope of the
section will not offend the provisions
of section 9(3) as it will not
be unfair discrimination on the grounds of race. Having considered
the pleadings before the court,
and further having had regard to the
submissions made on behalf of the parties, I am satisfied that the
scheme of the Agreement,
as implemented together with the Plan, met
the requirements of section 15 (1), (2) and (3) of the EEA, and does
not offend against
the provisions of section 9 (3) of the
Constitution.
[78]
The Collective Agreement, as implemented together with the Plan are
affirmative action measures contemplated in section 15
(1) of the EEA
and
are protected by section 6(2) of the EEA and section 9(2)
of the Constitution. These measures meet the constitutional test set
out
in
Van Heerden
and
Barnard
, and do not offend
against the provisions of section 15 (4), nor do they propagate
quotas as prohibited by the provisions of section
15 (3) of the EEA.
Importantly, the Agreement as can be gleaned from the criteria set
out therein strives for substantive equality,
and does not impose
substantial and undue harm or disproportionate burdens on those who
might find themselves excluded from it.
In fact, there appears to be
even more members of SAPS who fall within the designated group that
have not benefitted from the scheme,
and who might even have more
cause to feel aggrieved. There is therefore no basis upon which it
can be concluded that the scheme,
as implemented in terms of the Plan
and the Agreement, or the Collective Agreement on its own results in,
or amounts to unfair
discrimination.
Costs:
[79]
POPCRU’s contention was that it was joined to these proceedings
and wished to pursue costs as Solidarity’s case
was vexatious.
I agree that Solidarity’s attack on the Collective Agreement
was untenable, and considerations of law and
fairness dictate that
the Respondents, with the exception of the Fourth, should be entitled
to their costs.
Order:
(i)
The application as brought by the First
Applicant (Solidarity) is dismissed.
(ii)
The First Applicant is ordered to pay to
the First, Third and Fifth Respondents, the costs of this
application.
(iii)
Solidarity may approach the Registrar of
this Court for a set-down date in respect of the matter concerning
the individual applicants.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa.
APPEARANCES:
On
behalf of the Applicants: MSM Brassey SC with Adv MJ Engelbrecht
Instructed
by: Serfontein, Viljoen & Swart Attorneys
On
behalf of the First to Third Respondents: Adv T Ngcukaitobi with Adv
N Muvangua
Instructed
by: The State Attorney
On
behalf of the Fifth Respondent: V Ngalwana SC with Adv F Karachi
Instructed
by: Grosskopf Attorneys
On
behalf of the Fourth Respondent: Van Der Merwe Du Toit INC
(Watching
Brief)
[1]
Act
55 of 1998
[2]
Act 66 of 1995
[3]
Constitution
of the Republic of South Africa, Act no 108 of 1996
[4]
On
1 April 2010 in Gazette No 33068
[5]
By
way of amendment to Regulation 8 of the Regulations for the South
African Police.
[6]
See
Larbi-Odam
v MEC for Education (North West Province)
(1998) 3 LDD 102 (CC) at para 28 where it was held that;
“…
Where
the purpose and effect of an agreed provision is to discriminate
unfairly against a minority, its 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 too
is subject to constitutional challenge where it discriminates
unfairly against vulnerable groups…”
[7]
J
anse
van Vuuren v South African Airways (Pty) Ltd and Another
(2013)
34 ILJ 1749 (LC) and also by virtue of the provisions of clause 9
which provides that;
“
This
agreement shall be subject to the provisions of any applicable Act
of Parliament, or secondary legislation promulgated in
terms
thereof”
[8]
See
South
Africa Airways (Pty) Ltd v G J Jansen Van Vuuren and Another
[2014] 8 BLLR 748
(LAC) at para 58 where it was held that;
“
Thus,
the fact that a collective agreement was a product of negotiation
between the appellant’s (alleged) representatives
and the
second respondent does not in itself make it fair, either
constitutionally or in terms of the EEA, its discriminatory
contents, because if it were to do so, it would undermine both the
EEA and the Constitution in a fundamental respect”
[9]
Section 1 (a) and (b) of the Constitution
[10]
In
reference to
Mazibuko
and Others v City of Johannesburg and Others
2010 (4) SA 1 (CC)
[11]
s6 (1) “
No
person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one
or more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour,
sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language and birth;”
[12]
section 15 (2) (a)- (d) and subsection (3)
[13]
Which provides that: “
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”
[14]
2014
(6) SA 123
(CC)
At
para 30
[15]
Numerical
goals are developed in accordance with the guidelines set out in
CODE OF GOOD PRACTICE: PREPARATION, IMPLEMENTATION
AND MONITORING OF
EMPLOYMENT EQUITY PLANS (GN R1394 in GG 20626 of 23 November 1999)
provides that;
“
8.4
Numerical goals
“
8.4.1
Numerical goals should be developed for the appointment and
promotion of people from designated groups. The purpose of these
goals would be to increase the representation of people from
designated groups in each occupational category and level in the
employer's workforce, where under-representation has been identified
and to make the workforce reflective of the relevant demographics
as
provided for in form EEA 8.
8.4.2
In developing the numerical goals, the following factors should be
into consideration-
·
The degree of under-representation of
employ employees from designated groups in each occupational
category and level in the employer's
workforce present and planned
vacancies;
·
the provincial and national
economically active population as presented in form EEA 8;
·
the pool of suitably qualified persons
from designated groups, from which the employer may be reasonably
expected to draw for
recruitment purposes;
·
present and anticipated economic and
financial factors relevant to the industry in which the employer
operates;
·
economic and financial circumstances of
the employer;
·
the anticipated growth or reduction in
the employer's workforce during the time period for the goals;
·
the expected turnover of employees in
the employer's workforce during the time period for the goals; and
·
labour turnover trends and underlying
reasons specifically for employees from designated groups.”
[16]
See
Barnard
at para 41
[17]
At para 137
[18]
See
National
Coalition
for
Gay and Lesbian Equality and Another v Minister of Justice and
Others
1998
(12) BCLR 1517
(CC) at para 60 and also referred to by Westhuizen J
in
Barnard
at paras 137- 138
[19]
See
Jafta J’s separate judgment in
Barnard
at para [230], where it was held that;
“
An
enquiry into the implementation of a restitutionary measure cannot
leave out of account the historical context that led to
white
employees being over-represented in managerial and supervisory
posts
”
[20]
Barnard
at para 32
[21]
Barnard
at para 37-38
[22]
Barnard
at para 38
[23]
2004 (12) BLLR 1181(CC)
para 37. See also
Barnard
at para 36
[24]
Public
Servants Association v Minister of Justice
1997 (5) BCLR at 640.
[25]
At para 44
[26]
At para 52
[27]
At
para 144
[28]
At para 156
[29]
at para [42]
[30]
at
para [54]
[31]
Case
no:D253-03 – 3 April 2013,
Where
Witcher AJ (As she then was) held that;
“
In
terms of section 15 (3) of the Act, legitimate affirmative action
measures include preferential treatment and numerical goals,
but
exclude quotas. The concept of preferential treatment and numerical
goals to be achieved within a certain period of time
differs quite
significantly from the concept of quotas. The imposition of a strict
quota is a rigid measure requiring a certain
fixed proportion or
percentage to be included whereas preferential treatment and goals
is more flexible allowing the achievement
of objectives over a
period of time”.
[32]
At
paras 212 - 214
[33]
At
paras
[66] and [67]
[34]
[1998] ZACC 1
;
1998 (2) SA 363
(CC) para [48]