Solidarity v Minister of Safety and Security and Others (J879/12) [2016] ZALCJHB 15; (2016) 37 ILJ 1012 (LC); [2016] 5 BLLR 484 (LC) (26 January 2016)

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[2016] ZALCJHB 15
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Solidarity v Minister of Safety and Security and Others (J879/12) [2016] ZALCJHB 15; (2016) 37 ILJ 1012 (LC); [2016] 5 BLLR 484 (LC) (26 January 2016)

Reportable
THE LABOUR COURT OF
SOUTH AFRICA,
JOHANNESBURG
C
ase
no: j 879/12
In
the matter between:
SOLIDARITY
Applicant
and
THE
MINISTER OF SAFETY AND SECURITY
First respondent
THE
MINISTER OF
LABOUR
Second
respondent
THE
NATIONAL COMMISSIONER OF
THE
SOUTH AFRICAN POLICE
SERVICE
Third respondent
THE
SOUTH AFRICAN POLICE
UNION
Fourth respondent
POLICE
AND PRISONS CIVIL RIGHTS
UNION
Amicus
Curiae
Delivered:
26 January 2016
Summary:
(Employment Equity Plan – compliance with
Employment Equity Act – Compliance with s 9(2) of the
Constitution (substantive
equality) – numerical targets in plan
amounting to quotas – plan in breach of Constitution and
Employment Equity Act
– Evidence that equity plan not
comprehensively implemented in practice – declaratory relief
only – Equity plan
not implemented contrary to s 27(2) of SAPS
Act – Use of national demographics not in breach of s 195(1) of
the Constitution)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This application seeks to challenge the
validity of the South African Police Service Employment Equity Plan
applicable from 1 January
2010 until 31 December 2014 (‘the
plan’). The applicants sought a declarator that the plan is
invalid and of no force
and effect because it contravenes one or more
of the following:
1.1
sections 15 (3) and, or alternatively, 42
of the Employment Equity Act, 55 of 1998 (‘the EEA’);
1.2
provisions of the South African Police
Service Act 68 of 1995 (‘the SAPS Act’); and/or
1.3
section 6 of the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’); and/or
1.4
Sections 1, 9 and/or 195 (1) of the
Constitution of South Africa, Act 8 of 1996 (‘the
Constitution’).
[2]
At the hearing of the matter, I was advised
that the applicants, by agreement with the respondents, would not
pursue the review
under PAJA, so that cause of action falls away. In
the event a declarator is granted the applicants seek to have the
plan set aside
in its entirety. Apart from seeking to have the plan
set aside the applicants also seek an interdict restraining the SAPS
from
implementing or giving effect to the plan by applying quotas in
determining appointments and promotion within the police service
and
rejecting appointments to posts or positions based purely on criteria
such as quotas. As will become apparent from the rest
of the
judgement, a central thrust of the applicants’ attack is
directed at the numerical targets set out in the plan, which
they
contend amount to nothing more than impermissible quotas under
section 15 (3) of the EEA.
[3]
I am indebted to the parties and the
amicus
curiae
for their detailed original and
supplementary submissions and for their patience. Though some
reference was made by counsel for
the
amicus
to USA jurisprudence for the reasons
which follow I believe the key legal questions which arise are ones
that can best be addressed
within the ambit of our own jurisprudence
on substantive equality, as set out below.
[4]
When
the matter was heard in June 2014 the judgment of the Constitutional
Court in
SA
Police Service v Solidarity on behalf of Barnard (Police &
Prisons Civil Rights Union as Amicus Curiae)
[1]
was still pending.  The parties made supplementary written
submissions in September 2014. I should mention also that at the

commencement of proceedings the citation of the Police and Prisons
Civil Rights Union was amended to that of amicus curiae.
Statutory
framework
[5]
The touchstone by which any measures
dealing with the promotion of equality must ultimately accord with is
s 9 of the Constitution,
which states:
'9
Equality
(1) Everyone is equal
before the law and has the right to equal to protection and benefit
of the law.
(2) Equality includes the
full an equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative
and other measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may
be taken.
(3) The state may not
unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gender,
sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief,
culture, language and birth.
(4) No person may
unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3).
National legislation must be
enacted to prevent or prohibit unfair discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection (3)
is unfair unless it is established that the discrimination
is fair.
In
this regard, it is s 9(2) which articuluates the right to substantive
equality which is central to the constitutional questions
arising in
this matter.
[6]
The EEA is intended to give effect to the
right to equality in the sphere of employment. Amongst other things,
it stipulates the
requirements, and governs the implementation, of
affirmative action measures pursuant to the objective of substantive
equality
expressed in s 9(2) of the bill of rights.  The
pertinent provisions for the purposes of this matter are sections
2,5,6,15,20
and 42, which read:
“
2  Purpose
of this Act
The purpose of this Act
is to 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  Elimination of
unfair discrimination
Every employer must take
steps to promote equal opportunity in the workplace by eliminating
unfair discrimination in any employment
policy or practice.
6  Prohibition of
unfair discrimination
(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.
(2) It is not unfair
discrimination to-
(a)
take affirmative action measures consistent with the purpose of this
Act; …
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.
…
20  Employment
equity plan
(1) A designated employer
must prepare and implement an employment equity plan which will
achieve reasonable progress towards employment
equity in that
employer's workforce.
(2) An employment equity
plan prepared in terms of subsection (1) must state-
(a)
the objectives to be achieved for each year of the plan;
(b)
the affirmative action measures to be implemented as required by
section 15 (2);
(c)
where underrepresentation of people from designated groups has been
identified by
the analysis, the numerical goals to achieve the
equitable representation of suitably qualified people from designated
groups within
each occupational category and level in the workforce,
the timetable within which this is to be achieved, and the strategies
intended
to achieve those goals;
(d)
the timetable for each year of the plan for the achievement of goals
and objectives
other than numerical goals;
(e)
the duration of the plan, which may not be shorter than one year or
longer than five
years;
(f)
the procedures that will be used to monitor and evaluate the
implementation of the
plan and whether reasonable progress is being
made towards implementing employment equity;
(g)
the internal procedures to resolve any dispute about the
interpretation or implementation
of the plan;
(h)
the persons in the workforce, including senior managers, responsible
for monitoring
and implementing the plan; and
(i)
any other prescribed matter.
(3) For purposes of this
Act, a person may be suitably qualified for a job as a result of any
one of, or any combination of that
person's-
(a)
formal qualifications;
(b)
prior learning;
(c)
relevant experience; or
(d)
capacity to acquire, within a reasonable time, the ability to do the
job.
(4) When determining
whether a person is suitably qualified for a job, an employer must-
(a)
review all the factors listed in subsection (3); and
(b)
determine whether that person has the ability to do the job in terms
of any one of,
or any combination of those factors.
(5) In making a
determination under subsection (4), an employer may not unfairly
discriminate against a person solely on the grounds
of that person's
lack of relevant experience.
(6) An employment equity
plan may contain any other measures that are consistent with the
purposes of this Act.
…
42  Assessment
of compliance
In
determining whether a designated employer is implementing employment
equity in compliance with this Act, the Director-General
or any
person or body applying this Act must
[2]
,
in addition to the factors stated in section 15, take into account
all of the following:
(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-
(i)
demographic profile of the national and regional economically active
population;
(ii)
pool of suitably qualified people from designated groups from which
the employer may reasonably
be expected to promote or appoint
employees;
(iii)
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.”
[7]
Section 195(1)(i) of the Constitution
states:
“
Public
administration must be broadly representative of the South African
people, this with employment and personnel management
practices based
on ability, objectivity, fairness, and the need to redress the
imbalances of the past to achieve broad representation.”
[8]
Section 27 of the SAPS Act provides that:
“
27
Filling of posts
(1) Subject to Chapter 6A
and subsection (2), the filling of any post in the Service, whether
by appointment, promotion or transfer,
shall be done in accordance
with this Act.
(2)
Subsection (1) shall not preclude compliance with measures designed
to achieve the objects contemplated in sections 8 (3)
(a)
and
212 (2) of the Constitution.”
[9]
The
references to the Constitution in s 27 of the SAPS Act are to the
Interim Constitution (Act 200 of 1993).  Section 8(3)(a)
of the
Interim Constitution reflected the initial formulation of the
constitutional right to substantive equality.
[3]
Section 212 (2) of the interim constitution stipulated amongst other
things that the public service must be: nonpartisan, career

orientated and function according to and equitable principles;
promote an efficient public administration broadly representative
of
the South African community, and be regulated by laws specifically
dealing with such service including its structure functioning
and
terms and conditions of service. Section 212 (4) and (5) read:
“
(4) In the making
of any appointment or the filling of any post in the public service,
the qualifications, level of training, merit,
efficiency and
suitability of the persons who qualify for the appointment, promotion
or transfer concerned, and such conditions
as may be determined or
prescribed by or under any law, shall be taken into account.
(5) Subsection (4) shall
not preclude measures to promote the objectives set out in subsection
(2).”
Thus,
the SAPS Act while stipulating operational priorities when posts are
to be filled recognises that in filling posts affirmative
action
measures to achieve substantive equality may modify the way in which
those selection criteria are applied, without identifying
the
criteria affirmative action measures must satisfy in that process.
For this, recourse must be had to the EEA and s 9(2) of
the
Constitution.
[10]
It should also be mentioned that the
respondents sought to place some reliance on a collective agreement
concluded in the Safety
and Security Sectoral bargaining Council
(‘SSSBC’). Agreement 10/2001 of 3 August 2001 entitled
“The Promotion
of Employment Equity and Unfair Discrimination
Policy” mandates the use of numerical targets in the following
terms:
“
5.11
Management of numerical goals
5.11.1
Numerical goals must be developed and implemented to achieve the
equitable representation of employees in all occupational categories

and levels to make the workforce reflective of the demographic of the
co
untry.
5.11.2
To
ensure consistency and accuracy in the development of numerical
goals,
the national Commissioner shall provide
national and
provincial formulas to determine the proportion of representation of
all categories of employees from both designated
and non-designated
groups
.
5.11.3
The numerical goals must direct all employment policies and practices
to ensure the achievement
of the employment equity objectives and
affirmative action measures.
5.11.4
Where any employment practices undertaken which does not support the
numerical goals of a
particular workplace, motivation therefore shall
be provided to the national Commissioner.
Subsequent to any
recruitment, promotion or appointment process, the Divisional
Commissioner Career Management shall advise the
National Commissioner
of the extent to which such processes have supported greater
representation in respect of workplaces.”
(emphasis
added)
Relevant
case law
[11]
At
the time that the matter was argued, judgment was pending in the
Constitutional Court case of
Barnard
.
Since that judgment was handed down there have been other matters in
which the requirements of valid employment equity plans
have been
considered. In this regard the cases of
Solidarity
and Others v SA Police Services and Others (JS 469/12)
[4]
,
Solidarity
& others v Department of Correctional Services & others
(Police & Prisons Civil Rights Union as Amicus Curiae)
[5]
,
SA
Police Service v Public Service Association of SA & others
[6]
and
Minister
of Safety and Security and others
[7]
are
of interest.
[12]
In
Barnard,
the Constitutional Court held that it was not
dealing with a case in which the validity of the SAPS plan was being
impugned, as
the following passage from the majority judgment, per
Moseneke ACJ, in the course of identifying where the SCA erred, makes
clear:
“
[51]
With respect, that court misconceived the issue before it as well as
the controlling law. It was obliged to approach the equality
claim
through the prism of s 9(2) of the Constitution and s 6(2) of the
Act.
This is because the employment
equity plan was never impugned as unlawful and invalid. It was not
open to the court to employ the
Harksen
analysis of unfair discrimination, which presumed the application of
the employment equity plan to be suspect and unfair.
At
stake before that court was never whether the employment equity plan
was assailable, but whether the decision the national commissioner

made under it was open to challenge
.
[52] The respondent
readily accepted this position in this court. She never pressed upon
us to endorse the reasoning of the Supreme
Court of Appeal.
Ms
Barnard accepted that the employment equity plan in question was a
valid affirmative action measure
. Equally, she did not impugn the
validity of the instruction. She never contended that either of the
two were suspect and should
have attracted a presumption of
unfairness.
None of the parties contended otherwise nor can I
find a valid reason to hold that the employment equity plan and the
accompanying
instruction are not affirmative action measures
authorized by s 6(2) of the Act
.
[53]
Accordingly, there was no warrant for the Supreme Court of Appeal to
burden the applicant police service with an onus to dispel

a presumptively unfair discrimination claim and find that it had
not discharged it. The appeal in that court was therefore
decided on
the wrong principle.”
[8]
(emphasis
added).
[13]
Although it was not necessary for the Constitutional Court in
Barnard
to evaluate whether the SAPS plan in question was unfairly
discriminatory, the court reiterated  some of the considerations

which a proper approach to challenges of that kind entail:
“
[30]
Our quest to achieve equality must occur within the discipline of our
Constitution.  Measures that are directed at remedying
past
discrimination must be formulated with due care not to invade unduly
the dignity of all concerned. 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.
[31]
We must be careful that the steps taken to promote substantive
equality do not unwittingly infringe the dignity of other individuals

— especially those who were themselves previously
disadvantaged.
…
[35]
An allied concern of our equality guarantee is the achievement of
full and equal enjoyment of all rights and freedoms. It permits

legislative and other measures designed to protect or advance persons
or categories of persons disadvantaged by unfair discrimination.

Restitution or affirmative measures are steps towards the attainment
of substantive equality. Steps so taken within the limits
that the
Constitution imposes are geared towards the advancement of equality.
Their purpose is to protect and develop those persons
who suffered
unfair discrimination because of past injustices.
[36]
The test whether a restitution measure falls within the ambit of s
9(2) is threefold. The measure must —
(a)
target a particular class of people who have been susceptible to
unfair discrimination;
(b)
be designed to protect or advance those classes of persons; and
(c)
promote the achievement of equality.
[37]
Once the measure in question passes the test, it is neither unfair
nor presumed to be unfair. This is so because the Constitution
says
so. It says measures of this order may be taken. Section 6(2) of the
Act, whose object is to echo s 9(2) of the Constitution,
is quite
explicit that affirmative action measures are not unfair.”
[9]
(footnotes
omitted)
The
principle that qualifying restitution measures to achieve substantive
equality are not a diminution of the right to equality,
was already
established by the Constitutional Court in
Minister
of Finance & another v Van Heerden
[10]
.
[14]
In
Barnard
the
Constitutional Court also did briefly refer in passing to the plan’s
numerical targets, and the prohibition against targets
being applied
as quotas, but found it was not necessary for the purposes of the
judgment to delve deeper into the question of when
a numerical target
might be construed as a quota:
“
[42] A designated
employer is required to implement several measures in pursuit of
affirmative action. They must identify and
eliminate employment
barriers, further diversify the workforce 'based on equal dignity and
respect of all people' and 'retain and
develop people' as well as
'implement appropriate training measures'.
37
Section 15(3) contains a vital proviso that the measures directed at
affirmative action may include preferential treatment
and
numerical goals but must exclude 'quotas'. Curiously, the statute
does not furnish a definition of 'quotas'. This not being
an
appropriate case, it would be unwise to give meaning to the term. Let
it suffice to observe that s 15(4) sets the tone for the
flexibility
and inclusiveness required to advance employment equity. It
makes it quite clear that a designated employer may
not adopt an
employment equity policy or practice that would establish an absolute
barrier to the future or continued employment
or promotion of people
who are not from designated groups.”
[11]
Also,
after noting that the respondent in
Barnard
had abandoned an
attack on the plan and the national instruction, the Constitutional
Court observed, in passing, 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 s 15(3) of
the Act.”
[12]
[15]
Before
either of the judgments in
Correctional
Services
or
Public
Servants Association
were
handed down, Tlhotlhalemaje AJ handed down judgment
in
Solidarity
and Others v SA Police Services and Others (JS 469/12)
.
[13]
In that matter, the court had
to
determine if a collective agreement concluded between the SAPS and
other unions, but not Solidarity, was a valid affirmative
action
measure. For the purposes of that judgment, the Labour Court accepted
that the SAPS plan was valid, as set out in the following
passages:
“
[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
[14
]
.
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”
[15]
and,
“
Therefore
the implementation of the measure satisfies the third leg of the Van
Heerden enquiry in that it promotes the achievement
of
equality….”
[16]
[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.”
[16]
The
Correctional Services
judgment of the LAC dealt with a
factual scenario which raised issues of law and principle, which in
important respects are indistinguishable
from the ones in this
matter. That case concerned a number of individual coloured
Correctional Service employees who believed they
had been unfairly
denied the opportunity of appointment or promotion because, in
particular, the Correctional Services employment
equity plan had
failed to take account the particular regional demographics of the
Western Cape, where coloureds comprise a higher
proportion
(approximately 50%) of the regional population than they do
nationally (approximately 8.8 %).
[17]
Like the
matter before me, the complaint in the
Correctional
Services
case
was not that the employer had refused to deviate from the plan in
particular instances, which was the underlying factual issue
in
Barnard
,
but that the equity plan itself made provision for transfers or
promotions with reference to quotas strictly reflecting the national

demographic representation of race and sex in the population.
[17]
[18]
In
Van Heerden,
the constitutional court (per Moseneke, J as
he then was) set out, in summary, the three requirements of
demonstrating that an affirmative
action measure meets the
constitutional standards set out in s9(2) of the Constitution:
“
It
seems to me that to determine whether a measure falls within s9 (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.”
[18]
[19]
In
Correctional Services
, the LAC reiterated the
constitutional requirements of restitutionary measures mentioned in
Van Heerden
with reference to the facts before it:
“
[51]
Because Barnard was concerned with the decision by the National
Commissioner not to appoint Captain Barnard to an advertised

position, the court in that case did not have to examine the equity
plan. It follows that the test set out in Van Heerden was not

strictly applicable to the determination thereof. But in this case,
the three criteria which the court in Van Heerden isolated
in s 9(2)
to test restitutionary measures are directly relevant.
To
recapitulate: the measure should target a category of beneficiaries
disadvantaged by unfair discrimination
. This is reflected in the
very nature of the DCS plan.
Secondly, the measure must be
'designed to protect or to advance such persons or categories of
persons, and must be reasonably capable
of obtaining the desired
outcome'
. In terms of the plan, there is a provision for
deviations, which can be implemented in the event that a rigid
implementation of
a plan would compromise service delivery or where
it would not be possible to appoint suitably qualified people from
designated
groups to the relevant occupational categories and levels
in the workforce.
If rationally implemented, these deviations
ensure that the plan does not have to be implemented in a rigid
fashion, in which case
the plan is reasonably capable of obtaining
its desired outcome of a representative workforce which is suitably
qualified and achieves
service delivery
.
Thirdly, the court in
Van Heerden held that the measure must promote 'the achievement of
equality'. Hence, the test is concerned
to ensure that the plan does
not impose disproportionate burdens or 'constitute an abuse of power
or impose such substantial and
undue harm on those excluded from its
benefits, that our long-term constitutional goal would be
threatened'. It is here that the
rights of persons who are not part
of the designated category can be protected. That this protection
must pass through the prism
of the substantive nature of the right to
equality makes this the most difficult part of the enquiry
.
[52]
It is clear from the testimony of Mr Magagula and Mr Bonani that this
was the objective which the DCS had in mind when it developed
its
plan to ensure substantive equality for those who suffered the most
egregious forms of discrimination under apartheid.
In
the light of our observation regarding the third leg of the enquiry,
there is a further important consideration which adds weight
to the
respondents' case; that is that the EEA must be read through the
prism of s 9(2). Inevitably, on the reading we have given
to s 9(2),
weight is accorded in the balancing act to the position of the
individual appellants even though there cannot be a blanket
deference
to a decision to promote disadvantaged groups
.
The EEA however recognises a need for balance. In the first place, a
person appointed from a designated group must be suitably
qualified
for the position. Secondly, where an individual applicant
possesses scarce or unique skills which are relevant to
the
organisational needs of the designated employer, these must be taken
into account; hence the prohibition against an absolute
bar to
employment. Thirdly, for reasons which will become apparent
presently, a consideration of regional demographics in terms
of s
42 of the EEA may well come to the aid of categories of
applicants who otherwise were unduly burdened by the implementation

of the plan.”
[19]
(emphasis
added – footnotes omitted)
[20]
The
PSA
matter,
like
Correctional
Services
concerned
alleged unfair discrimination against a specific individual from a
designated group, in that instance an Indian male.
One of the issues
the court had to decide was whether the SAPS equity plan at that time
(2000) was in line with the EEA. Once again,
the LAC emphasised the
primacy of the three pronged test for testing whether a restitution
measure is compatible with what the
Constitutional Court first
described in detail in
Van
Heerden
and mentioned again in
Barnard
.
[20]
[21]
On
the facts of the case in
PSA
,
the court found that the plan passed the first requirement of
targeting a class of persons who had been susceptible to unfair

discrimination and was designed to protect and advance the employment
of applicants from that class. In dealing with the last prong
of the
test, the court found that the complainant had not been unfairly
discriminated against for two reasons. Firstly, at all
levels of the
organisation, Africans were “hopelessly under-represented”
and the plan was trying to ensure restitution
took place “…in
order that a broadly non-racial police force could emerge in
Kwazulu-Natal, one that was not predicated
on previous historical
patterns”. Secondly, the difference in scores between the
successful African candidate and the complainant
was insignificant
and the African candidate had the necessary ability to serve in the
post with distinction.
[21]
Thus, having regard to the specific demographics in the province and
the racial profile of the workforce with reference to the
targets in
the plan together with the ordinary selection criteria the balance
struck between employment equity imperatives and
operational needs
was achieved relatively easily.
[22]
In
Naidoo’s
case, the LAC found that the court
a
quo
had erred in dealing with the validity of the plan because that had
not been in issue before it.
[22]
Consequently, this judgment is of limited relevance to the current
matter.
[23]
In
Correctional
Services
, the LAC concluded that the
Department had failed to take account of regional demographics, which
at the time was a mandatory requirement
in terms of s 42(a)(i) of the
EEA:
“
[59]
In summary, the respondents failed to take account of the particular
regional demographics of the Western Cape which was a
mandatory
requirement at the time that the plan was conceived. The failure to
do so could result in a large-scale reduction in
the workforce of
members of the designated group, who themselves had suffered
egregious discrimination as a result of apartheid.
Even
if the word 'may' is employed in this enquiry
,
it is our view that, given South African history,
the
failure to take account of the impact of regional demographics on the
nature and purpose of the plan adversely reduces the contribution
of
restitution towards substantive equality and hence the attempt to
achieve the effective goal of developing a non-racial and
non-sexist
society
.
This complete failure to examine the region in which the plan is
conceived, constitutes a sufficient legal obstacle against the
plan
being held to be in compliance with the EEA.”
[23]
(emphasis
added)
[24]
Clearly, a feature of that case which had a
material bearing on the LAC decision was that the complainants
belonged to a designated
group of previously disadvantaged persons
and a primary objective of their challenge was to assert a claim to
improve their position
relative to other previously disadvantaged
groups in line with their demographic profile in the economically
active population
in the Western Cape.  In this case, the   plan
is attacked not with reference to the prejudice allegedly suffered
by
a particular group of individual employees. Rather, the applicants
contend that the very schema of the plan is such that it
establishes
absolute barriers to appointment or promotion the effect of which are
indistinguishable from the operation of quotas.
[25]
Although it was hoped that the decision in
Barnard
would
clarify some of the issues important to this judgment because the
focus of the Constitutional court was on the administrative
review of
the Commissioner’s specific decision not to appoint Captain
Barnard to an advertised post, it shed little new light
on the more
difficult aspects of evaluating equity plans as such. The LAC
decision in
Correctional
Services
is more useful in relation to the critical aspect of the applicant’s
case, namely whether the plan erects barriers
to the employment of
persons from non-disadvantaged groups amounting to quotas.
Important
elements of the SAPS plan for 2010-2014
[26]
The preamble of the plan announces,
inter-alia, that:
“
The
South African Police Service has developed this subsequent Employment
Equity Plan that spanned from 1 January 2010 to 31 December
2014
which is geared to:
Ø
Promote the constitutional right of
equality and the exercise of true democracy;
Ø
Eliminate unfair discrimination in
employment within the South African Police Service;
Ø
Ensure proper and effective implementation
of Employment Equity within the South African Police Service to
redress the effects of
past practices;
Ø
achieve a diverse workforce broadly
representative of the South African community; and
Ø
Promote economic development and efficiency
in the workforce.”
[27]
Paragraph 2 of the plan contains the plan’s
vision statement, viz:
“
Emanating
from the aim is derived from the
Employment Equity Act no 55 of 1998
,
the South African Police Service is committed to ensuring broad
representation of its Human Resources based on the racial, gender
and
disability demographics. This shall be implemented in all
occupational categories/levels/classes nationally and provincially
in
relation to each and every workplace.”
[28]
In terms of paragraph 4 of the plan, owing
to the vast size of the SAPS which at the time employed 185 369
members, it was to be
implemented through business units. Explaining
how this was supposed to work, the plan stated:
“
SAPS
has consequently subdivided the organisation into Business Units
which will be manageable, large enough to have a standardised

approach and small enough to cater for specific needs and unique
circumstances, but the ultimate objective being alignment with

national demographics since SAPS is a national institution.”
Each
of the thirty business units identified in the plan was to develop
their own implementation plan aligned to the national plan.
In terms
of paragraph 8.2.2 of the plan the implementation plans of the
business units were to be “derived from and informed
by”
the national plan. None of these business unit implementation plans
formed part of the papers relied on by any of the
parties, and for
the purposes of this judgement, I must assume that they did not
modify the national plan in any material way that
would be pertinent
to the case that was argued before me.
[29]
Paragraph 6 of the plan deals with
enforcement and stipulates that every manager’s performance
agreement must be linked with
the implementation of the employment
equity program to ensure accountability for delivery of the program.
In the latter part of
the plan dealing with steps already taken to
promote employment equity, it is reported that “(a)ccountability
to enhance
representivity was embedded in each manager’s
performance agreement”. It also provides that disciplinary
measures may
be used to deal with breaches of the ‘objectives
and intentions’ of the plan. Paragraph 10 of the plan dealing
with
monitoring and evaluation requires each business unit to submit
quarterly reports to the National Equity office, which must make

recommendations to the national Commissioner for any sanctions
relating to non-compliance with the national plan.
[30]
Paragraph 14 of the plan reads:
“
NUMERIC
TARGETS FOR THE SAPS EMPLOYMENT EQUITY PLAN
The South African police
service commits itself anew to reach the equity targets agreed upon
in the
section 20
plan in favour of the designated group by the year
2014. In the process of striving to achieve the equity targets of
this
section 20
plan, the SA PS has to create capacity within the
organisation. To ensure the realisation of this process, posts must
become available
to apply and promote employment equity by making use
of the following options/opportunities;
-
Natural attrition
-
Movement to the ideal establishment.
-
Offering severance package or any other
available programs subject to Cabinet approval. Should Cabinet to
prove severance packages
or any other similar programs for the South
African police service, the implementation or execution of such
severance package program
should be geared to support this
section 20
plan in re-addressing the imbalances in the organisation. This means
that designated members/officials be appointed in the vacancies

created by personnel take severance packages.
-
Continuous implementation and close
monitoring of the six focus areas of affirmative action including
other relevant programs (i.
e. Accelerated development, Succession
Planning, Shadow Posting, Bursaries and Learnerships, Secondments,
fixed term contracts).”
[31]
The plan includes a table which sets out
the overall targets for the SAPS for each year for the duration of
the plan. Different
numerical targets by race and gender were
identified in each of four categories of personnel, namely Senior
Management level (salary
levels 13-16), Middle Management level
(salary levels 9-12), Junior Management level (salary level 8) and
Production level (salary
levels 1-7). Two types of targets were
stipulated for each racial and gender category, namely an “Ideal”
and “Realistic”
percentage of the workforce. Thus, for
example, the ‘ideal’ proportion of female members in the
SAPS is set at 40%
of all members at the Production level, but sets a
‘realistic’ percentage target of 32.32% in 2010 moving to
35.59%
in 2014 for that level.
[32]
The plan itself does not explain how the
‘realistic’ targets were arrived at, but states that the
‘ideal’
targets were derived from the 2006 mid-year
population estimates in terms of which Africans, whites, Indians and
coloureds constitute
79.35%, 9.34%, 2.46% and 8.85% of the national
population. In her answering affidavit, the National Commissioner
attempts in rather
sweeping and vague terms to explain the derivation
of the ‘realistic’ target percentages:
“
In
developing the plan, cognisance was taken of the fact that 2006
midyear population estimates were ideal figures. As a result
the plan
includes realistic figures, which are informed by inter-alia the
progress made during the previous Employment Equity Plans
with
reference to workforce movements, the pool of suitably qualified
candidates and forecasting/projections made considering the
Resource
Allocation Guide which is determined by the availability of funds
from National Treasury in terms of the Medium Term Expenditure

Framework. This is done by the National Equity Unit of the SAPS and
the Human Resources, Planning and Utilisation Unit of the SAPS.

Cognizance is also taken of the number of people that would have
matric and a driver’s license in relation to the entry-level

into the SAPS; and the number of people with specialised training and
qualifications for specialised posts, for example those requiring

training and experience in psychology and related social sciences.”
The
Commissioner’s assertion of how the ‘realistic’
targets were arrived at is unsupported by any other affidavits
or
documentation which might have elucidated how the welter of factors
mentioned were weighted and evaluated to arrive at the very
specific
percentages identified as targets. Consequently, the derivation of
those targets remains opaque and poorly substantiated.
[33]
The plan records certain other pro-active
measures such as preferential training programs which had already
been undertaken to address
identified barriers to appointment and
promotion. It also contains a section dealing with non-numeric
targets which are described
in very general terms only, viz:
“
The
analysis of the 30 SAPS Business Unit Plans indicates that the
following non-numeric targets are prioritised and action plans
in
this regard to be developed at Business Unit level.
The SAPS will ensure the
achievement and sustaining of the equity objectives through diligent
pursuance and attainment in making
equity and explicable part of
every component/divisions/problems within the entire institution.
Properly trained and
developed employees for improved service delivery and broadly
representative of the community of South Africa.
SAPS
institutionalised a culture that is inclusive of and values the
diversity of personnel within the SAPS and one that supports
the
affirmation of historically disadvantaged individuals.”
(
sic
)
[34]
The only reference in the plan to
preventing the creation of absolute barriers to employment is set out
after the end of the tables
containing the numerical targets:
“
Recruitment,
promotion and appointment drives will be informed by actual needs.
During promotion all the
available posts will be distributed in terms of the national
demographics amongst all race groups. This
will ensure that no
absolute barrier is placed with regard to the advancement of any
group with in the SAPS.”
No
elucidation is provided as to what is meant by available posts being
‘distributed in terms of the national demographics
amongst all
race groups’ and it is unclear on the face of it why this would
ensure that no barrier is placed to the advancement
of any group. It
is unfortunate that what is clearly seen by SAPS to be an important
provision supposedly ensuring that absolute
barriers are not erected
by the plan is phrased in such a way that its meaning remains
obscure.
[35]
The plan also provides that 50% of all
posts on salary level 8-16 and 60% of posts on salary levels 1-7 “…
will be
allocated to wom[e]n (Females) as a designated group in their
race groups”, though no similar provision is made for the
allocation
of posts to different racial groups. How this apparent
reservation of posts on the basis of sex was to be practically
implemented
is not set out in plan.
Issues
in contention
The
applicant’s claim
[36]
Central to Solidarity’s attack on the
plan is its objection that “the gender and racial targets set
by the plan amount
to ‘nothing but a compendium of absolute
quotas’. The applicants state that:
“
This
much is clear from the fact that the plan states as its objective
representation of races based on the national demographic
and the
fact that it employs a system of allocation of positions on the basis
of racial profiling. An applicant, however appropriate
and extensive
his qualifications and experience, will be rejected unless he or she
falls within the group-male or female on the
one hand and white,
coloured, Indian and African on the other-that is under-represented
in the SA PS taken nationally. In its most
egregious form, the
implementation of the plan leads to the outright refusal to appoint
or promote suitable staff to vacant positions
on the grounds that the
pursuit of strict demographic representation will potentially be
frustrated. Ultimately, Solidarity contends
that the SAPS is not
entitled, under the enabling legislation, to engage upon social
engineering, and neither is it entitled to
approach categories of
disadvantaged persons in the absolute fashion when a nuanced and ad
hominem approach is called for.”
[37]
The applicants contend that the approach of
the SAPS in the way that it uses targets in the plan is not mandated
by the Constitution
nor by the EEA. In particular, the EEA, does not:
37.1
make provision for subdividing the
designated groups of people identified as the intended beneficiaries
of affirmative action measures
to redress the disadvantages in
employment they experience into the further subcategories of
coloured, Indian and African in, which
the plan identifies specific
targets for;
37.2
permit the use of the national demographic
as a standard by which the representation of designated groups may be
evaluated in terms
of the plan;
37.3
permit quotas, nor
37.4
permit an employer to place absolute
barriers to the employment or advancement of employees.
[38]
Even if the use of what the applicants
characterised as “absolute targets” based on demographics
was a legitimate feature
of a plan, the applicants argue that the
national demographic standard adopted by the SAPS is an arbitrary
one. Firstly, they say
the plan takes no cognizance of the fact that
the respective proportions of Indians and coloureds in the
economically active population
in each province differ significantly
from their representation in the nationally economically active
population. Appointments
made in conformity with national targets in
terms of the plan would not result in a provincial racial profile of
the SAPS which
was broadly representative of the racial composition
of the economically active population in that province. Secondly,
even if
the use of national demographics is permissible, by not using
the economically active population as the benchmark, the SAPS arrives

at targets unrelated to the job seeking population. If only the
national economically active population as reflected in the 2011

Census is considered, then the national employment profile of the
SAPS would already appear to be broadly representative of that

population.
[39]
Furthermore,
Solidarity argues that the SAPS Act effectively outlaws the failure
to appoint a suitably qualified person to an existing
post solely
because such an appointment would not help to achieve race or gender
targets in the plan. In part this appears to echo
one of the
complaints in
Barnard’s
case
[24]
,
though now it is raised in the form of an alleged defect in the plan
itself.
[40]
The
applicants also make specific reference to National Instruction
2/2008 in terms of which the national Commissioner assumed the
power
to reserve promotional posts on certain grounds including, employment
equity and the strategic objectives of SAPS; the prevailing
lack of
representivity that cannot be expected to be addressed through normal
promotion processes; a lack of applications received
from candidates
whose promotion or appointment would have enhanced representivity;
and applications received from candidates whose
promotion or
appointment would promote representivity, but to require further
development to make them suitably qualified to fill
the higher posts.
However, Instruction 2/2008 itself is not the object of attack in
this application, though the issues raised
by it might warrant
consideration.
[25]
In this
instance, Solidarity’s attack is confined to the plan itself
and therefore the question is whether such a prohibition
against
appointing someone on the grounds of their sex or race alone follows
directly from the terms of the plan rather than from
the National
Instruction.
[41]
Lastly, Solidarity related some of the
events leading up to this application as evidence of the allegedly
inflexible approach adopted
by SAPS and what compelled it to bring a
broad application of this nature. In particular, Solidarity refers to
decisions or recommendations
resulting in the deferment of the
appointment process apparently in the hope that candidates who might
fulfil representivity objectives
could be obtained by re-advertising
posts, advertising externally, or by requiring provinces or divisions
to revise recommendations.
I note that some of the examples referred
to in the founding affidavit pre-date the 2010-2014 plan.
The
employer’s defence
[42]
SAPS retorts that the applicant cannot
argue that it actually applies national demographics rigidly because
in fact, the plan recognises
that it is not realistic to do so.
Further, section 195 of the Constitution mandates the use of national
figures as a benchmark
by stating that the public service must be
broadly representative of South African people. It also argues that
the use of national
demographics “to determine the composition
of the workforce of a particular employer” is permissible under
the EEA
because the code of good practice on the preparation,
implementation and monitoring of equity plans states that:
“
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 underrepresentation has been identified and to make the
workforce reflective of the relevant demographics as provided
for in
form EEA8”
[43]
Regulation 2(5) of the EEA General
Administrative Regulations of 2009 states among other things that
when a designated employer
conducts the analysis required by section
19(1) of the EEA, the employer may refer to form EEA 8. The analysis
in question is the
analysis a designated employer must conduct of its
employment policies, practices, procedures and working environment in
order
to identify employment barriers adversely affecting people from
designated groups. Section 19(2) of the EEA requires the employer
to
include a profile of its workforce within each occupational category
and level to determine the degree of underrepresentation
of people
from designated groups in the workforce. Obviously,
‘underrepresentation’ can only be determined against
some
kind of numerical norm.
[44]
Form EEA 8, entitled ‘Annexure 1:
Demographic Data’ reads
:
“
Demographic
Profile of the National and Regional Economically Active Population
WHAT IS THE PURPOSE OF
THE DEMOCRATIC PROFILE OF THE NATIONAL AND REGIONAL ECONOMICALLY
ACTIVE POPULATION AND WHERE TO FIND THEM?
Statistics South Africa
provides demographic data using Labour Force Surveys from time to
time. The Labour Force Surveys (LFS) that
is normally released
quarterly provides statistics on the national and provincial
Economically Active Population (EAP) in terms
of race and gender.
Employers can access this information directly from Statistics South
Africa. This information must be used
by employers when consulting
with employees, conducting an analysis and when preparing and
implementing Employment Equity Plans.”
[45]
Further, SAPS argues that it was bound by
the provisions of Agreement 10/2001 (mentioned above) that also
required it to pursue
the object of ensuring that it broadly reflects
the demographics of South Africa. SAPS contends that the fact that it
did not use
the actual population estimates for 2006 but applied
realistic targets showed that it did not inflexibly attempt to apply
national
demographic figures to the plan.
[46]
Another argument advanced by SAPS was that
using regionally derived figures would preserve the ‘balkanisation’
of the
workforce by maintaining historic geographic racial
distribution patterns. However, I do not understand that it is one of
the recognised
objects of the EEA, or any other legislation, to try
to achieve an even distribution of all races in the composition of
every provincial
workforce irrespective of the existing racial
contours of that province’s economically active population. It
also does not
follow from the Constitutional object of achieving a
public service that is broadly representative of the population. This
is because
a national workforce that corresponds at provincial level
with the racial composition of the population in each province will
necessarily
also be broadly representative of the national population
at a national level.  In any event, this particular defence of
the
use of national demographic targets relied on in argument was not
one that was raised in the National Commissioner’s answering

affidavit and does not require further consideration.
[47]
In relation to Solidarity’s
contention that the EEA does not permit the subdivision of the
designated group of black people
group into further racial categories
for the purpose of identifying the numerical targets, SAPS claims
that the union was adopting
a too literal approach to interpretation
of the statute and failed to appreciate the multi-layered nature of
disadvantage suffered
by various groups. As I understand the
argument, it implies that - for example - if a numerical target could
only be set for black
women as a group, it would not fairly reflect
the greater underrepresentation of African women relative to women of
other races.
[48]
Lastly, SAPS contends that in evaluating
whether its approach to employment equity is inflexible, regard must
be had not only to
the plan itself but to other instruments such as
National Instruction 2/2008. Accordingly, the National Commissioner
mentions paragraph
4(11)(a) of the instruction, which provides that
the criteria for selection of candidates based amongst other things
on:
48.1
the candidate’s competence based on
the inherent requirements of the job or the capacity to acquire,
within reasonable time,
the ability to do the job;
48.2
the candidate’s prior learning,
training and development;
48.3
the candidate’s experience gained in
the field of post, and
48.4
representivity of the relevant division or
province at the level that is applicable to the post in terms of the
Employment Equity
Plan of the relevant business unit.
SAPS
further points out that paragraph 4(12)(d) of the National
Instruction permits a Provincial or Divisional Commissioner to
approve a promotion of an employee even if that promotion will not
advance representivity at that particular post level. Similarly,
for
higher post levels the national Commissioner has a discretion whether
or not to prove recommended appointments in terms of
paragraph
4(12)(c) of the instruction.
Evaluation
Compliance
with the right to equality
[49]
There seems to be no dispute that the plan
clearly satisfies the first two legs of the constitutional test that
a remedial measure
must meet to qualify under s9(2) of the
Constitution, as laid down in
Van
Heerden
. The only issue is whether it
also met the third leg, namely
whether the plan promoted the
achievement of equality. The LAC identified this as the most
difficult part of the test, which entails
determining if the plan
does not impose disproportionate burdens or constitute an abuse of
power or impose such substantial and
undue harm on those excluded
from its benefits, that our long-term constitutional goal would be
threatened. In
Correctional Services
the equity plan under
consideration did satisfy the third requirement because of the
existence of a deviation policy in the equity
plan.
[50]
The third leg of the test is intimately bound up with the
discussion of a deviation policy, which is dealt with below.
Compliance
of the plan with the EEA
The
reliance on national demographic targets
[51]
It is clear from the provisions of section
42(a)(i) of the EEA and the regulations discussed that the intention
of the EEA was that
the comparator against which underrepresentation
would be measured should be the ‘relevant’ national and
provincial
economically active population. The first point to note is
that it is perfectly legitimate to have regard to national
demographics
in terms of the EEA and s 195 of the Constitution, but
it is not sufficient to simply rely on national census figures of the
general
population for the purposes of the EEA. Rather, it is the
economically active portion of the population against which the
composition
of the workforce must be compared. In so far as it is the
economically active population that is under consideration, both the
national and regional economically active population figures must be
considered in terms of s 42(1)(a)(i). Plainly, in relying only
on the
national population census estimates, SAPS plan did not consider
either of these standards in identifying the numerical
targets in its
plan. At least in these respects, the plan does not comply with the
EEA.
[52]
In relation to the constitutional
injunction that the public service must be broadly representative of
the population, that imperative
is perfectly consistent with a public
service whose provincial racial profile matches that of the
population in each province.
There is no sense in which national
demographic representation is in conflict with regional demographic
representation: a nationally
representative workforce that is also
regionally representative, will fit the varying geographic racial
contours of the population
much more closely than one which is not.
The
use of numeric targets for sub-groups of racially disadvantaged
persons
[53]
Is it permissible to identify numeric
targets for subcategories of the designated group of ‘black
people’?  The
relevant definitions are contained in s 1 of
the EEA and state:
“
'designated
groups' means black people, women and people with disabilities;…
'black
people' is a generic term which means Africans, Coloureds and
Indians;…”
[54]
One
of the purposes of the EEA is “… to
achieve equity
in the workplace by …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.”
[26]
The applicants effectively argue that the designated group of ‘black
people’ is indivisible and whenever targets are
set for the
advancement of members of that group the targets should relate to the
group as a whole and not subcategories thereof.
In my view, there is
an irreconcilable conflict between this argument and the argument
that regional demographics are a necessary
and relevant standard when
setting numerical targets. Part of the argument in favour of the use
of regional demographics is the
uneven distribution of subcategories
of black people in provincial populations and that a failure to
recognise this could result
in disproportionately advancing the
interests of one category of racially disadvantaged persons at the
expense of other categories
of black people resulting in a provincial
workforce composition that is out of kilter with the racial
composition of the province.
[55]
In
the concurring three-judge
[27]
minority judgement in
Barnard
,
the following observations were made which are pertinent in this
regard:
“
[88] In
addition, the Act aims to advance several different 'designated
groups'. The Act defines 'designated groups' to mean 'black
people,
women and people with disabilities', and 'black people', in turn,
encompasses black Africans as well as persons previously
designated
coloured and Indian. Employers 'must' implement affirmative action
measures that benefit people from all designated
groups. So no
affirmative action decision is consistent with the purpose of the
Act unless it considers the advancement of
each of the different
categories of persons designated by the Act. A decision that
redresses racial disadvantage but grossly aggravates
gender
disadvantage, for example, might be impermissible, as might a
decision that advances only one disadvantaged racial group
while
limiting the others.”
[28]
(references
omitted).
[56]
I believe it accords with the view expressed in the latter part of
the quotation above not to interpret the use of the term
‘black
people’ in the EEA as being intended to confine the
implementation of affirmative measures to members of
that group on
the basis that they are part of an homogenous group. Rather, I
understand the EEA’s description of the term
as a ‘generic’
one was simply intended to emphasise the common distinguishing
characteristic of all members of that
group, namely that they are
members of different racial groups who suffered gross forms of
discrimination under apartheid because
they were not white, which
place them at a historical disadvantage relative to white persons. It
is the historic racial character
of their disadvantage, which
distinguishes them from members of the two other designated groups of
disadvantaged persons who are
identified by reason of their sex or
disability. Thus the term ‘black people’ is simply a
convenient rubric to describe
all those whose disadvantage stems from
their racial designation under apartheid. It was not intended to
avoid recognition of the
varied racial composition of that group.
[57]
Moreover, a failure to recognize the need for disaggregation can have
perverse consequences, already alluded to above. For
example, the
advancement of a single person falling with the category of black
people would enhance the representivity of black
persons overall, but
depending on which racial subcategory that person came from, might
exacerbate the relative under-representation
of African, coloured or
Indian persons in that level of the workforce. Numeric targets
relating to the different racial subdivisions
of the group will
reduce the likelihood of such an outcome. In the result, I do not
think there is merit in attacking the plan
on the basis that the use
of numerical targets of subcategories of black persons is invalid in
terms of the EEA.
The
use of numeric targets in the plan
[58]
Does the use of numerical targets in the plan amount to the
imposition of quotas in breach of section 15(3) of the EEA? Achieving

the goal of a public service which is broadly representative of the
diverse South African population can hardly be pursued without

identifying the specific racial and gender composition of the
workforce which would correspond to that ideal, which necessarily

entails the numeric expression thereof. Indeed, s 15(3) and s 20(2)
of the EEA mandate the use of numerical goals. The key question
is
whether compliance with the plan necessitates that any promotion or
appointment made by the SAPS must demonstrably advance the

achievement of the numerical goals identified in the plan.
[59]
In
Correctional Services
the LAC addressed the question of
when  numerical employment targets used in an employment equity
plan could be construed
as quotas prohibited by section 15(3):
“
Evaluation
of appellants' argument
[40]
A 'quota' is defined in The Concise Oxford Dictionary, to the extent
that it is relevant to this dispute, as 'a fixed number
of a group
allowed to do something eg. Immigrants entering the country'.
[41]
Much of the debate before this court turned on the distinction
between a quota, which in terms of the EEA, is an impermissible

mechanism, and the permissible concept of numerical targets. The key
distinguishing factor between these two concepts turns, it
appears,
on the flexibility of the mechanism.
An inflexible set of numbers
with which the designated employer is required to comply 'come what
may' constitutes a quota and would
therefore be in breach of s 15(3)
of the EEA. By contrast, a plan based on designated groups filling
specified percentages of the
workforce, but which allowed for
deviations therefrom so that there was no absolute bar to present or
continued employment or advancement
of people who do not fall within
a designated group (s 15(4)) would pass legal muster
.
Similarly,
a plan which provides that the numbers provided for in the plan
constitute a goal to be achieved over a defined period
would be
congruent with the EEA
.
Of course, even in this case, a target
may be designed to achieve a defined goal in a specified period,
after which, absent some
room for flexibility, the target could
become a quota
. If the plan is inflexible, then it must be struck
down. See in this connection SA Restructuring & Insolvency
Practitioners
Association v Minister of Justice & Constitutional
Development & others (2015 WCC case no 4314/2014).”
(emphasis
added)
[60]
The LAC found that the Department of Correctional Services
equity plan did provide for deviations from the attainment of
numerical
goals when making appointments or promotions or promotions
in certain circumstances. This was sufficient not only to avoid the
conclusion that the Correctional services plan did not establish
quotas but  was also sufficient for the plan to pass
constitutional
muster in terms of the third prong of the test set out
in
Van Heerden
for evaluating remedial measures under s 9(2)
of the Constitution:
“
In
terms of the plan, there is a provision for deviations, which can be
implemented in the event that a rigid implementation of
a plan would
compromise service delivery or where it would not be possible to
appoint suitably qualified people from designated
groups to the
relevant occupational categories and levels in the workforce.
[29]
”
and
“
As
indicated, we do not consider that a deviation plan that focuses
exclusively on organisational need and the consequent assessment
of
skills, experience and the ability of an individual applicant to
fulfil these defined needs renders such a plan unconstitutional.”
[30]
[61]
It
seems also that the LAC also reached its finding that the deviation
policy in the plan referred to above was sufficient to pass

constitutional muster, mainly on account of the provision for
deviations, but also because of evidence given during the trial which

the court alluded to. Firstly, the court regarded as noteworthy the
evidence of t
he
Department of Correctional Services’ Regional Head: Corporate
Services Western Cape
to
the effect that the characteristics of an individual applicant could
play a role in deciding whether to depart from the plan
for
operational reasons.
[31]
Secondly, the court observed that the fact that there was uncontested
evidence that the third respondent had approved
13 deviations in the
Western Cape during the period 2010 to 2013 tended to indicate that
there was not an absolute bar to promotion
or appointment and that
the plan had not been inflexibly adhered to.
[32]
Lastly, the court took cognizance of the fact that the individuals
who claimed to have been unfairly discriminated against in terms
of
the policy did not base their case on the department’s refusal
to consider a deviation from the policy but on the policy
itself.
[33]
[62]
In this instance, unlike in the
Correctional Services
matter there is no provision in the SAPS plan setting out the
circumstances in which a deviation from the plan would be acceptable.

Any member of SAPS management dealing with appointments or promotions
would find no guidance in the plan as to when, or on what
basis, it
would be acceptable to make recommendations or decisions on
employment or promotion that did not advance the numerical

representation goals of the plan, and which also would not negatively
affect their own performance assessment or possibly result
in
disciplinary action being taken against them. The National
Commissioner claims in her answering affidavit that the plan does
not
make race or gender decisive considerations in appointments and
promotions, but  “… simply introduces them
among
the many factors to be taken into account when making employment
decisions.” However, none of the provisions of the
plan
indicate when any of those other factors might legitimately permit
an appointment or promotion to be made which does
not advance
the pursuit of the numerical goals. On the wording of the plan
itself, it does not cater for exceptions.
[63]
In
Correctional
Services
the LAC also mentioned, though
it does not seem to have been raised in the case before it,
that a plan in which the numeric
targets are only a goal to achieve
over a period of time would also be congruent with the EEA.
Does that mean, as in this
case, where the targets change from year
to year during the five year duration of the plan that, the various
annual numeric targets
do not amount to quotas? Any equity plan must
have a time frame or time frames for achieving numeric objectives.
The issue whether
those numerical targets can be construed as quotas
will always depend on the rigidity with which they should be pursued,
which
will depend on the interpretation of the wording of the plan.
In the case of the SAPS plan, there is nothing in the wording which

suggests that the stipulated ‘realistic’ targets were
merely figures that SAPS was aiming to achieve rather than fixed

objectives which could result in poor performance assessments or even
disciplinary sanctions if not met.
[64]
Labelling a target ‘realistic’
does not in and of itself mean it is flexible when it comes to making
a decision. What
is lacking in the plan is a provision that tells
decision makers under what circumstances the pursuit of the targets
can yield
to other considerations when recommending or making an
appointment.
[65]
SAPS’s answer that the plan must be
looked at in the context of other instruments governing appointments
is a poor one. The
fact that other regulatory provisions might
provide for a more nuanced approach to appointments and promotions
does not detract
from the rigidity of the conception of the plan
itself as embodied in its provisions. If SAPS did not intend the
numerical goals
in the plan to carry overriding importance in
employment and promotion decisions in all instances, then the plan
itself ought to
have said that either by way of express provisions
explaining when non-adherence to the attainment of the numerical
targets would
be considered legitimate, or by express reference to
other statutory instruments that provide for this. In the absence
thereof,
it is hard to escape the conclusion that the plan as such
did not envisage a flexible approach being adopted in the pursuit of
its numerical targets. In
Correctional
Services
the LAC found that the
numerical targets in that plan were not quotas because of the
deviation provision it contained. The same
cannot be said of the SAPS
plan, which contains no equivalent provisions. For the same reason
the absence of any mechanism which
might ameliorate the impact of
applying the targets rigidly on members whose race or gender would
present an insuperable obstacle
to their promotion means that the
plan as such does not satisfy the third leg of the test for remedial
measures aimed at achieving
substantive equality.
[66]
However, another defence advanced by SAPS
is that the factual position belies Solidarity’s claim that the
plan is rigid and
inflexible or that it erects absolute barriers to
advancement of members of groups that are over-represented in a staff
category.
Thus, SAPS points out that since April 2000 to March 2012,
3549 white males and 5173 white females were promoted, which would
not
be possible if race and gender considerations were paramount.
Solidarity did not take issue with these figures. It also did not

argue that during the period from 2010 to 2012, which fell during the
period of the 2010-2014 plan, the incidence of such appointments
was
not consistent with the pattern of such appointments before the plan
was implemented.
[67]
An allied contention of SAPS is that the
issue of whether race and gender are ever decisive is not a matter
that can be answered
in the abstract but only with reference to
actual employment decisions. The applicant retorts that SAPS ought to
have taken the
court into its confidence by stating how many
candidates for promotion or appointment had been refused appointment
solely only
on the basis of that they were not appointed because they
did not satisfy the racial profile required by the numerical target,
and how many posts had not been filled because no suitable candidate
satisfying the numerical goals could be found. However, in
so far as
the actual outcomes of appointment or promotion, decisions are
decisive in this application, it is the applicant that
should have
sought to adduce such evidence in support of its claim that the plan
raised insuperable barriers to the appointment
of qualified
candidates who would have been appointed but for their race or sex.
[68]
In this instance, though I am satisfied that, in
conception, the numeric targets amount to quotas, the factual
position does show
the plan was not followed to the letter and that
in practice, other factors did play a role in determining
appointments. In short,
the plan itself was defective as a remedial
measure in terms of s 9(2) of the constitution and did not satisfy
all the requirements
of the EEA, but was flexibly implemented despite
the absence of provision for flexibility in the plan itself.
Compliance
with s 27 of SAPS Act.
[69]
It also follows that because the plan did not
comply with s 9(2) of the Constitution, it could not by itself
constitute a remedial
measure designed to achieve the objects of s
8(3)(a) of the interim constitution and therefore was not a remedial
measure which
SAPS could rely on as a justification for departing
from any of the precepts in the SAPS Act governing the filling of
posts. However,
since the wording of s 27(2) speaks of SAPS
“compliance” with such a measure and in view of the
conclusion, on the
limited evidence available, that SAPS did not in
fact implement the plan properly, it would be absurd to conclude that
because
the plan was defective SAPS had acted in breach of s 27(2) of
the SAPS Act.  As SAPS had not complied with the defective plan

in practice, it cannot be said to have acted in accordance with a
plan which did not satisfy the requirements of
achieving the
objects contemplated in sections 8 (3)
(a)
and 212 (2) of the
Constitution
Remedy
[70]
By the time final submissions were made in
September 2014, the 2010 – 2014 plan had virtually run its
course. The relief sought
was primarily declaratory. Secondly it was
to restrain SAPS from implementing the plan by applying quotas based
on demographic
representation, or to make appointments based on such
criteria. While declaratory relief would be competent in relation to
whether
the plan itself met the requirements of the EEA or breached
the right to equality, it is not appropriate to make an order
relating
to the implementation of the policy, especially given the
question mark that hangs over the extent to which it was implemented
in practice.  That is an issue concerning its implementation and
will turn on what happened in the case of specific appointments.
[71]
The matter is obviously an important one of
principle for both parties and they have an ongoing relationship
which would make an
award of costs inappropriate in the
circumstances.
Order
[72]
In light of the above, I find that:
72.1
The SAPS employment equity plan for
2010-2014, attached as Annexure DJG2 to the applicant’s
founding affidavit (‘the
plan’), is invalid and of no
force and effect because it contravenes:
72.1.1
sections 15 (3) and  42 of the
Employment Equity Act, 55 of 1998 (‘the EEA’);
72.1.2
section 9(2) of the Constitution of South
Africa, Act 8 of 1996 (‘the Constitution’)
72.2
The plan was not in breach of s 195(1) (i)
of the Constitution.
72.3
The first respondent did not act in breach
of
s 27(2)
of the
South African Police Service Act 68 of 1995
in so
far as it gave effect to the plan.
[73]
No order is made as to costs.
_______________________
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
MSM
Brassey SC assisted by M J Engelbrecht instructed by Serfontein,
Viljoen & Swart Attorneys
FIRST
RESPONDENT, SECOND AND
THIRD
RESPONDENT:
H
Maenejte SC, assisted by T Ngcukaitobi and S Tilly instructed by
the State Attorney
FOURTH
RESPONDENT:
(No
appearance)
AMICUS
CURIAE:

V Ngalwana SC assisted by F
Karachi, instructed by
Grosskopf Attorneys
[1]
(2014)
35
ILJ
2981
(CC)
[2]
The
word
“must”
was replaced with “may” by the
Employment
Equity Amendment Act 47 of 2013, with effect from 1 August 2014.
[3]
Section
8 of
the IC read:
“
8
Equality
(1) Every person shall
have the right to equality before the law and to equal protection of
the law.
(2)
No person shall
be unfairly discriminated against, directly or indirectly
, and,
without derogating from the generality of this provision, on one or
more of the following grounds in particular:
race, gender, sex,
ethnic or social origin, colour
, sexual orientation, age,
disability, religion, conscience, belief, culture or language.
(3)
(a)
This
section shall not preclude measures designed to achieve the adequate
protection and advancement of persons or groups or categories
of
persons disadvantaged by unfair discrimination, in order to enable
their full and equal enjoyment of all rights and freedoms
.
(b)
Every person
or community dispossessed of rights in land before the commencement
of this Constitution under any law which would
have been
inconsistent with subsection (2) had that subsection been in
operation at the time of the dispossession, shall be entitled
to
claim restitution of such rights subject to and in accordance with
sections 121, 122 and 123.
(4)
Prima facie
proof of discrimination on any of the grounds specified in
subsection (2) shall be presumed to be sufficient proof of unfair

discrimination as contemplated in that subsection, until the
contrary is established.”
(emphasis
added)
[4]
[2015] ZALCJHB 120 (2 April 2015)
[5]
(2015)
36
ILJ
1848 (LAC)
[6]
(2015)
36
ILJ
1828 (LAC)
[7]
[2015]
11 BLLR 1129 (LAC)
[8]
At 2998.
[9]
At 2993-4.
[10]
(2004)
25
ILJ
1593
(CC)
at  1609-10, viz:
“
[37] When a
measure is challenged as violating the equality provision, its
defender may meet the claim by showing that the measure
is
contemplated in s 9(2) in that it promotes the achievement of
equality and is designed to protect and advance persons
disadvantaged
by unfair discrimination.”
[11]
At 2996.
[12]
At 2999, para [54].
[13]
See fn 5.
[14]
At para 52
[15]
At
para 144
[16]
At para 156
[17]
At 1862, par [38].
[18]
At 1610, par [37]. The court elaborated on these criteria in
paragraphs [38] – [44] of the judgment.
[19]
At 1865-6.
[20]
At 1839, paras [36]-[37].
[21]
At 1839-1840,paras [38]-[42]
[22]
At
1139, viz:
[38]
I agree with Mr
Ngcukaitobi
that the validity of the
employment equity plan and the National Instruction was not
challenged by the respondent. The respondent’s
case was that
she was unfairly discriminated against and that the employment
equity plan was implemented incorrectly in her case.
The court
a
quo
was therefore wrong to review the employment equity plan
under circumstances where the validity of the plan was not
challenged
and where there was no proper case made out for its
review. In
Barnard
, Moseneke ACJ stated:
“
With
respect, that court misconceived the issue before it as well as the
controlling law. It was obliged to approach the equality
claim
through the prism of
s
9(2)
of the Constitution and
s
6(2)
of the Act. This is because the employment equity plan was never
impugned as unlawful and invalid. It was not open to the court
to
employ the
Harksen
analysis
of unfair discrimination, which presumed the application of the
Employment Equity Plan to be suspect and unfair. At stake
before
that court was never whether the employment equity plan was
assailable, but whether the decision the national commissioner
made
under it was open to challenge.”
11
[39]It
was not open to the court
a quo
to review the employment
equity plan or the National Instruction.”
[23]
At 1868.
[24]
At
2999, [55].
[25]
The interplay between the requirements of effective service delivery
and employment equity imperatives is a matter that enjoyed

considerable attention in all the judgments of the Constitutional
Court in
Barnard
.
See 3002 [63]-[64], 3014-6 [108]-[113] and 3018 [122]-[123],
3036-3037 [184]-[189].
[26]
S 2(b) of the EEA.
[27]
Cameron J, Froneman J and Majiedt AJ
[28]
At 3008
[29]
At 1865,[51].
[30]
At
1871,[70].
[31]
At
1863-4,[47].
[32]
At
1864,
[44]
[33]
At 1863,[46].