IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no. J 644/97
In the matter between:
Independent Municipal & Allied Workers Union Applicant
AND
Greater Louis Trichardt Transitional Local Council Respondent
JUDGMENT
MLAMBO J.
1. This is an application in which the applicant seeks to review and set aside a
decision by the Respondent in terms of which it appointed Dan Masengana as its
Town Treasurer. The broad grounds on which the application is based are that
the appointment of Masengana is unfairly discriminative within the contemplation
of schedule 7 item 2(1)(a) of the Labour Relations Act no.66 of 1995 (“the Act”),
and further that the appointment is irregular.
Background
2. The post of Town treasurer was externally advertised by the Respondent in the print
media. Requirements for consideration were that candidates should have a relevant B degree
or equivalent qualification and should at least have a licentiate membership of the Institute of
Municipal Treasurers and Accountants. In terms of the initial advertisement the close date
was 10 February 1998 but no appointment was made even though five candidates were
shortlisted.
2. The Respondent, decided on 25 March 1997, to readvertise the post. Twenty two new
applications were received and the Respondent’s Executive Committee was requested to
compile a short list of applicants with a view to conduct interviews with those shortlisted.
After these interviews another short list was compiled and candidates were subjected to an
internal test drafted by the Respondent’s Town Clerk, who was the previous Town
Treasurer. Mr Venter of the institute of Municipal Treasurers and Accountants evaluated
both the test itself and the candidates.
3. The test results of the short listed candidates were:
4. B Van der Berg 79/120;
5. D Masengana 44/120;
6. D M Kruger 95/120;
7. R Madula 50/120;
8. E K Ndleve 62/120
The Test targeted the knowledge and experience of the candidates of local
government, their merit and potential ability. From the five candidates a further
short list of three candidates was compiled consisting of Mr Van der Berg, Mr Kruger
and Mr Masengana. The Executive Committee could however not make a decision
regarding the appointment, and the short list of three was referred to the full Council
for a decision.
9. At the Council’s meeting of 27 May 1997 the Chief Executive presented the three
candidates as follows:
5.1 Mr Van den Berg had 12 years’ municipal experience of which four were as a Town
treasurer; He was a subaccountant at Pietersburg/Polokwane and an accountant at the
Development Board, and also an accountant at Ellisrus. Before that, for about six years, he
had worked with the Receiver of Revenue and the banks at Eskom;
5.2 Mr Kruger started with the Respondent in January 1968 and was promoted to an
accountant’s position in 1974. In 1980 he was promoted to internal auditor and then Assistant
Town Treasurer. He had been the Deputy Town Treasurer since 1983.
5.3 Mr Masengana had been an accountant with the Northern Development Corporation
from 1994 until 1997. He worked for one month with the Thohoyandou Transitional Local
Council as an assistant. He was with the JCI as an assistant accountant from 1991 to 1994,
and he was with the Venda Development Corporation, also as an assistant from 1985 to 1991.
6. During the meeting of 27 May 1997 two motions were forwarded, one for the
appointment of Kruger and the other for the appointment of Masengana. The two motions
were then followed by an exhaustive debate by the Council. The majority of the Council
decided that affirmative action should be the only criteria and accordingly Masengana was
appointed as Town Treasurer. There is therefore no dispute that the only consideration in
Masengana’s appointment was affirmative action.
The applicant’s submissions
10. Mr Haycock, on behalf of the Applicant, submitted that the Respondent did not comply
with the provisions of the collective agreement on Equal Employment Practice and
Affirmative Action for local government in the selection and appointment of Masengana.
Mr Haycock submitted that the Respondent had failed to develop and implement an
affirmative action programme and that no defined affirmative action programme was
followed in the appointment of Mesengana. Mr Haycock further submitted that the
collective agreement provided that the relevant labour market must consist of at least
those individuals who have proficiency and/or skill to successfully perform the duties of
the relevant post. In this regard Mr Haycock submitted that from Mesengana’s curriculum
vitae it was clear that he did not possess the necessary experience in local government to
qualify for appointment.
11. Mr Haycock further submitted that the majority of the councilors of the Respondent did
not apply their minds properly and fairly to the appointment of Masengana. He submitted
that the council acted grossly irregular when it appointed Masengana simply because he is
black and therefore was an affirmative action candidate thus ignoring merit and other
requirements set out in the collective agreement.
The Respondent’s submissions
12. Mr Mahlase, appearing for the Respondent, argued that the Respondent was empowered
in terms of Schedule 7 Part B Item 2(2) of the Act to adopt and/or implement employment
policies and practices that are designed to achieve the adequate protection and
advancement of persons or groups or categories of persons disadvantaged by unfair
discrimination.
13. Mr Mahlase further argued that the Respondent as a local authority established in terms of
the Local Government Transitional Act no 209 of 1993 had to be in line with that Act’s
main objectives of promoting and restructuring local government into nonracial and
inclusive bodies. He argued that the Respondent’s councillors properly applied their
minds to the appointment of Masengana. He also submitted that the Respondent’s
decision to appoint Masengana was in keeping with the Constitution of the Republic of
South Africa Act no. 108 of 1996. (“the Constitution”).
14. Mr Mahlase further argued that the Respondent’s decision was not unreasonable and as
such not reviewable. He argued that courts should exercise restraint when tasked with
reviews of a local authority decision which involves public policy.
The relevant provisions of the Act
15. Item 2(1)(a) of schedule 7 provides:
‘For the purpose of this item, an unfair labour practice means any unfairact or omission
that arises between an employer and an employee, involving the unfair discrimination,
either directly or indirectly, against an employee on any arbitrary ground, including,
but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, political opinion, culture, language, marital
status or family responsibility.”
Item 2(2)(b) of Schedule 7 provides:
“For the purposes of subitem (1)(a)
an employer is not prevented from adopting or implementing employment policies and
practices that are designed to achieve the adequate protection and advancement of
persons or groups or categories 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”
13. In turn Clause 9 of the Constitution provides:
“9(1) Everyone is equal before the law and has the right to equal protection an benefit
of the law.
9(2). Equality includes the full and equal enjoyment 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.
9(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.
9(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.”
Furthermore clause 195(1)(i) of the Constitution provides:
“Public administration must be broadly representative of the South African people, 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.”
14. It is apparent from the statutory and constitutional provisions cited that unfair
discrimination is outlawed. It is equally apparent that an employer, more particularly in the
public service is empowered to adopt employment practices and policies that are designed to
achieve the adequate advancement of persons or groups previously disadvantaged by unfair
discrimination. One of such policies is affirmation action.
Case Law
15. The need for programmes such as affirmative action in this country in view of our history
of past unfair discrimination is recognised in a number of court decisions and numerous
writings. In President of the Republic of South Africa & Another v Hugo 1997(6) BCLR
708 (CC) at 729FH Goldstone J said:
“In section 8(3), the Interim Constitution contains an express recognition that there is a
need for measures to seek to alleviate the disadvantage which is the product of past
discrimination. We need, therefore, to develop a concept of unfair discrimination which
recognises that although a society which affords each human being equal treatment on
the basis of equal worth and freedom is our goal, we cannot achieve that goal by
insisting upon identical treatment in all circumstances before that goal is achieved.
Each case, therefore, will require a careful and thorough understanding of the impact of
the discriminatory action upon the particular people concerned to determine whether its
overall impact is one which furthers the constitutional goal of equality or not. A
classification which is unfair in one context may not necessarily be unfair in a different
context.”
16. In Public Servants Association v The Minister of Correctional Services & Others
(unreported) Labour Court case no: J 174/97 the court, after citing a passage from
Shabalala & Others v The Attorney General of the Transvaal and Another 1996 (1) SA
725 CC, said at page 16:
“Viewed from this angle therefore it is clear that the Constitution aims to redress
historical inequities and imbalances. It requires as a constitutional imperative that the
Public service be broadly representative of the South African community. The
attainment of this constitutional objective, in particular in the public service would be
impossible without a programme of affirmative action.”
17. Affirmative action however should not be applied in a arbitrary and unfair manner. The
caution and constraint with which affirmative action should be applied is recognised by
Cheadle & Others in “Fundamental Rights in the Constitution”, 1997 (Juta) 1 st edition at
page 60 where, in relation to section 8(3) (a) of the Interim Constitution no 200 of 1993 which
has essentially been retained by clause 9(3) of the Constitution, the following is said:
“The interpretation of s 8(1) apart, S 8(3)(a) is designed to insulate from judicial review
those measures designed to benefit individuals or groups who have been disadvantaged
by unfair discrimination. Provided that the corrective measures comply with the
by unfair discrimination. Provided that the corrective measures comply with the
internal requirements of section 8(3) (a), those measures will not be subjected to the
rigours of section 33(1). The clause does have internal requirements. The use of the
word “designed” clearly imports that there must be a rational connection between the
means employed and the objects of the measures. The measures can only be directed to
those groups or categories that are “disadvantaged” by unfair discrimination.”
18. Du Toit & Others in “The Labour Relation Act of 1995" Butterworths, (1998) 2 nd
edition, echo the same sentiments. At page 441 the following is stated:
“Measures are permitted if they are ‘designed’ to achieve the purposes set out in item
2(2)(b). The word ‘designed’ suggests that more than mere intention is required, though
not necessarily that the measures should be likely to achieve their purpose. Section 9(2)
of the Constitution must be read as permitting only those corrective measures which do
not unduly prejudice the individuals or groups who are disadvantaged as a result.”
19. There appears to be no doubt therefore that for affirmative action to survive judicial
scrutiny the following is relevant:
19.1 there must be a policy or programme through which affirmative action is to be
effected;
19.2 the policy or programme must be designed to achieve the adequate advancement or
protection of certain categories of persons or groups disadvantaged by unfair discrimination.
20. In the court’s view there are good reasons for these requirements. These requirements
ensure that there is accountability and transparency. They ensure that there is a measure or
standard against which the implementation of affirmative action is measured or tested. They
ensure that no arbitrary or unfair practices occur under the guise of affirmative action. They
also ensure full knowledge and participation in the establishment and implementation of the
programme.
21. In Motala & Another v University of Natal 1995 (3) SA BCLR 374 D the court refused
to interfere with an affirmative action policy which contained different selection criteria for
African and Indian students. The court found that the policy was in fact designed to achieve
the adequate protection of a group of persons disadvantaged by unfair discrimination. The
court further stated that the policy selection criteria which compensated for a discrepancy due
to certain disadvantages to a race were not discriminatory within the meaning of clause 8(1)
and 8(2) of the Interim Constitution. Item 2(2)(b) of schedule 7 of the Act is couched in the
same language as clause 9(2) of the Constitution and clause 8(3) of the Interim Constitution.
Therefore item 2(2)(b) has the same internal requirements as those two clauses in the
Constitution and the Interim Constitution. It therefore remains to consider whether the
Respondent has an affirmative action policy or programme in place which complies with the
set internal requirements.
Does the Respondent have an affirmative action policy or programme
22. Is there such a policy in place and applied by the Respondent. A document that
could shed light in this regard is the Agreement on Equal Employment Practice and
Affirmative Action which was signed by all stakeholders on 15 August 1994. The
preamble to this agreement reads:
“The parties to this agreement acknowledge the need to:
Implement comprehensive affirmative action, training and development
strategies to redress historic and existing inequalities, imbalances, prejudices
and injustices in the workplace;
ensure equal employment opportunity practices in local government;
enforce the right of fundamental equality and opportunity between men and
women in employment as well as the right of every person to be protected
against employment discrimination on the grounds of race, gender, ethnic or
social origin, colour, sexual orientation, age disability, religion culture or
political affiliation; and to
transform local government to a nonracial, nonsexist institution and provide
redress to disadvantaged people.”
23. This agreement was signed by employer organisations representing councils on the one
hand and unions representing employees on the other. The agreement envisages a number of
issues and structures being addressed at each individual local authority:
23.1 The agreement provides that “a clearly detailed, specific and feasible affirmative
action programme will be formulated, implemented and monitored to redress imbalances and
discrimination”. Employees and their representatives would be involved in the formulation
process.
23.2 The agreement also provides that local authorities and their employees have the right
to determine their own affirmative action goals and time tables, realistic in and suitable to
their unique circumstances.
23.3 The agreement provides for in depth analysis and evaluation by individual local
authorities for instance, with regard to the process of the affirmative action, as well as the
nature of the relevant labour market, and the specific circumstances of each local authority
especially when setting goals and time tables. The agreement also stresses the need for
research and analysis especially regarding the existing internal labour force, at each local
authority, as well as the extent of integrated employment already in existence. Analysis is
also required of the local authority in terms of divisions where affirmative action should enjoy
priority. Further, the agreement provides for the identification of broad numeric objectives
with regard to the various disadvantaged groups for post categories, levels and divisions in the
local authority linked to realistic time tables.
23.4 The agreement provides for the establishment at each local authority of an affirmative
action steering committee to monitor the implementation of the objectives, principles,
strategies and procedures of the agreement.
24. It is clear therefore that the Agreement on Equal Employment and Affirmative Action
envisages further steps by individual local authorities such as the Respondent. The most
important of these is the formulation of an affirmative action programme. There is no dispute
that the Respondent adopted this agreement during a meeting on 8 October 1996. There is
further no dispute that the further action plans envisaged in this agreement have not been
carried out or implemented by the Respondent. In a nutshell the Respondent has done nothing
envisaged by the agreement. In my view therefore the Respondent cannot even begin to
consider affirmative action in appointments before it has complied with the agreement.
25. In the absence of an affirmative action programme specifically designed in terms of the
collective agreement any appointment on purported affirmative action grounds is illegitimate.
It is illegitimate because it is not in terms of any formulated policy against which it can be
tested. In a nutshell the appointment of Masengana cannot be justified on affirmative action
grounds. Simply put the Respondent cannot find refuge in item 2(2)(b) of schedule 7 of the
Act. The court therefore must consider if the appointment of Masengana can be justified on
other grounds. It is also necessary to consider if Masengana’s appointment did not
discriminate unfairly against other applicants on any basis.
In casu it is common cause that:
25.1 Masengana was one of three applicants from what may be referred to as a group
disadvantaged by unfair discrimination.
25.2 Masengana scored the lowest of the other two black applicants and further scored the
lowest of all the applicants in a test which formed part of the interview process.
25.3 Masengana lacked the necessary experience in local government which experience
was possessed by other candidates.
25.4 The sole criteria applied by the Council in the appointment of Masengana was the
colour of his skin hence the attempt to bring it under Affirmative Action.
26. Unfair discrimination is outlawed. The Constitutional Court in Harksen v Lane N.O &
Others 1998 (11) BCLR 1489(CC) stated at paragraph 45 that:
“The determination as to whether differentiation amounts to unfair discrimination
under s 8(2) requires a two stage analysis. Firstly, the question arises whether the
differentiation amounts to ‘discrimination’ and, if it does, whether, secondly, it amounts
to ‘unfair discrimination’. It is as well to keep these two stages of the enquiry separate.
That there can be instances of discrimination which do not amount to unfair
discrimination is evident from the fact that even in cases of discrimination on the
grounds specified in s 8(2), which by virtue of s 8(4) are presumed to constitute unfair
discrimination, it is possible to rebut the presumption and establish that the
discrimination is not unfair.”
27. Considering the concept of an unfair labour practice in the context of unfair
discrimination Landman J in Kadiaka v Amalgamated Beverage Industries (1999) 20 ILJ
373 (LC) at paragraph 35 said:
“ The Act seeks in my view to ensure that employers provide equal opportunities for
employment to all job seekers. This it does by striking down practices which
constitute an unfair labour practice. The object is to establish fair labour practices
founded on the absence of unfair discrimination. In order for there to be equal
opportunities, the act prohibits unfair discrimination on the basis of the listed grounds
or on arbitrary grounds.”
28. Seady AJ sitting in this court also considered the same issue in Leonard Dingler
Employee Representative Council & Others v Leonard Dingler and Others (1998) 19
ILJ 185 (LC). She stated that the onus is on the employer to provide an explanation that
discrimination, once proven, is legitimate. At page 28 of the judgment she says: ”Given that
considerations of legitimacy and rationality must be measured in testing fairness, it is
the employer or some other respondent who can and should provide this explanation.
The employer must show that the object of the practice or policy is legitimate and that
the means used to achieve it are rational and proportional.”
29. In casu the Respondent states that it acted fairly when it appointed Masengana as Town
treasurer. It states that Masengana “is well qualified within the meaning of the Equal
Employment Practice and Affirmative Action. The main defence, therefore, proffered by the
Respondent regarding the appointment of Masengana is that it was empowered by item 2(2)
(b) of schedule 7 of the act and that it complied with this provision in appointing Masengana.
30. This explanation is in more ways than one lamentable. Firstly it has already been pointed
out above that Masengana’s appointment cannot be sustained under item 2(2)(b) of schedule
7. The explanation also fails to disclose what other criteria were considered by the
Respondent when it decided to appoint Masengana as Town treasurer. There is no indication
whether merit, qualifications or the potential to develop played any role. This court accepts
that the overwhelming majority of candidates previously disadvantaged by unfair
discrimination would lack the necessary experience possessed by those advantaged by past
unfair discrimination. Therefore, where affirmative action is a consideration, experience
will remain relevant but not determinative. The overriding requirement in such cases is the
potential to develop and perform. This will also, inevitably, not make merit determinative
though it also will remain relevant.
31. For affirmative action to succeed and help achieve the desired objective merit and
experience would remain relevant in so far as the applicants previously disadvantaged by
unfair discrimination are concerned in their own group. In other words the successful
candidate should be the best out of the group previously disadvantaged by unfair
discrimination. I say this for the simple reason that if the playing field in levelled, i.e where
all groups are considered, candidates from groups previously disadvantaged by unfair
discrimination will always come second especially if one considers experience. Candidates
previously advantaged by unfair discrimination invariably possess the necessary experience
which candidates from groups previously disadvantaged by unfair discrimination would not
normally possess. In view of this situation it would be prudent therefore in affirmative action
appointments to consider the qualification and potential to develop as crucial and that
successful candidates from previously disadvantaged groups are the best from those groups.
32. In the appointment of Masengana it is not clear what criteria were considered save that he
is black. It is not clear why he was preferred to the other two black candidates who scored
higher than him in the test. There is no explanation that sets out whether he was found to
have potential to develop or perform the work which would justify his appointment. It
appears justified therefore to conclude that the decision to appoint Masengana cannot be
justified on any other basis. It has not been demonstrated in what way was Masengana the
best candidate for the post of Town Treasurer when compared with the other candidates. It
therefore appears justified to conclude that the decision to appoint Masengana as Town
Treasurer discriminated unfairly in an arbitrary manner against other candidates in terms of
item 2(1)(a) of schedule 7 of the Act. The Respondent has therefore committed an unfair
labour practice.
33. The order of the court is therefore:
16. The decision of the Respondent to appointment Masengana amounted to an unfair labour
practice within the meaning of Item 2(1)(a) of schedule 7 of the Act.
17. The appointment of Masengana to the position of Town Treasurer is set aside.
18. The Respondent is ordered to pay the applicant’s costs.
MLAMBO J.
Date of judgment: 16 July 1999.
For the applicant: Mr Haycock instructed by Savage Jooste & Adams Inc.
For the respondent: Mr Mahlase of Mahlase, Nonyane attorneys.