IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
Case Number :D322/04
In the matter between
PUBLIC SERVICE ASSOCIATION OF
SOUTH AFRICA 1 ST APPLICANT
Obo
CAPTAIN LOUIS HELBERG 2NDAPPLICANT
and
THE MINISTER OF SAFETY & SECURITY 1 ST RESPONDENT
THE SOUTH AFRICAN POLICE SERVICE 2 ND RESPONDENT
JUDGMENT
1. This is an application for a default judgment brought by the applicants against the
respondents. The Statement of Case was served on the respondents by registered mail.
There has been no response from the respondents. The matter was accordingly set
down for the default judgment.
2. The applicant is employed by the South African Police Service and stationed in The
Commercial Branch in Durban. He holds the rank of a Captain. The applicant is serving
in the specialised branch of the South African Police Service.
3. The applicant testified that in 2000 he applied for promotion to the rank of
Superintendent. He was not promoted. He then requested information regarding the
process that was followed. He approached the CCMA to get the documents he needed.
4. The response he received about his unsuccessful application is that he was not found
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to be the most suitable candidate. This is contained in a letter dated 19 July 2001 (p9
Arbitration Proceedings). It was also stated that the evaluation was done in accordance
with the Head Office Minute number 8/1/1 dated 20000313. This was confirmed in the
letter dated 27 July 2001(Arbitration Proceedings p10). The letter went further to say,
“Your application did not weigh favourably against the other applicants who were recommended for the
posts you applied for.”
5. At CCMA the respondent agreed to supply the documents requested. He proceeded
with his grievance to a Step 4 level. The dispute was not resolved. He referred the
dispute to the SSSBC. The outcome sought was the promotion to the rank of
Superintendent back dated to 1 March 2000.
6. In response to the grievance referred to the SSSBC the SAPS stated that the
appointment of other candidates was in accordance with the provisions of the
Employment Equity Act, No55 of 1998 and was regarded as a fair discrimination in
terms of Section 6(2)(a) thereof. It was also stated that the applicant was not
recommended after the respondent had applied the measures contained in Head Office
letters dated 20000313, 20000717 and 20000719.
7. The applicant testified that the respondent did not produce any Equity plan and did not
have any plan at the time. The applicant was only advised in 2002 that he was not
recommended because of the Equity Plan. In a letter dated 19 July 2000, Div Com
Stander of the Head Office in Pretoria, provided The Employment Equity Plan to be
followed. In that letter he pointed out that the representivity level of black males, black
females and white females can be improved. It was further stated that the personnel
who acted in Superintendent posts must be considered for the advertised posts but they
who acted in Superintendent posts must be considered for the advertised posts but they
should not be a accommodated at the expense of other race groups.
8. In a letter dated 17 July 2000, Div Commissioner Stander wrote in paragraph 3 of that
letter that:
“… I am aware of the current reality and that the Employment Equity Plan of the South African Police
Service was not in effect at the time when recommendations were made, nevertheless the plan must be
used as a guide.”
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It is therefore clear that the respondent relied on the Equity Plan that did not exist at the time
in order to exclude the applicant. Applicant could not be promoted because he is a white male.
9. The applicant testified that in the year 2000 he acted in the post of Senior
Superintendent. Some of the people who were appointed had not acted for a period of
12 months in those positions or higher ranks. One Mr Mbatha had not been short listed
but was appointed. Some of the people who were appointed have obtained marks lower
than that of the applicant. The applicant testified that there was still room for the
appointment of 5 white males. Only one white male was promoted.
10. The applicant has submitted that the respondent’s failure to promote him was an
unjustified discrimination. He further stated that the Equity Plan could not be relied upon
as it did not exist at the time. He accordingly sought the assistance of the court for
promotion to the post of Superintendent.
11. The respondent did not appear to gainsay the applicant’s evidence. I have to decide the
matter only on the version of the applicant.
12. The onus is on the applicant to prove the discrimination. (See Transport and General Workers Union &
Another v Bayete Security Holdings (1999) 20 ILJ 1117(LC) at page 1118 par 4. There is no doctrine of
legitimate expectation in promotion. The fact that a person has acted in the position does not on its own
entitle the person to promotion. That may well be the position if there is a contract entitling a person to the
appointment after acting for a certain period of time. What is always expected is that the best candidate be
appointed.
13. I am satisfied on the evidence that the applicant was discriminated against on the basis
of race. The question is whether such discrimination is outlawed in terms of Section 6 of
of race. The question is whether such discrimination is outlawed in terms of Section 6 of
The Employment Equity Act . Section 15 permits discrimination to fulfil affirmative action
measures.
14. I can appreciate the actions of the respondent in trying to have all races represented.
What has not been disputed in the present case is that when the respondent failed to
promote the applicant there was no affirmative action plan for the South African Police
Service. The respondent therefore could not implement any measures under affirmative
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action when no plan existed.
15. In the circumstances I find that the respondent discriminated unfairly against the second
applicant.
16. In the result I make the following order:
(a) The respondent is directed to promote the second
applicant to the rank of Superintendent as from 31 July
2000 with all the benefits.
(b) The respondent is ordered to pay the 1 st applicant’s actual expenses
in connection with this application.
________________
Ngcamu AJ
Date of last hearing : 19 November 2004
Date of judgment : 26 November 2004
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