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[2014] ZACC 23
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South African Police Service v Solidarity obo Barnard (CCT 01/14) [2014] ZACC 23; 2014 (6) SA 123 (CC); [2014] 11 BLLR 1025 (CC); 2014 (10) BCLR 1195 (CC); (2014) 35 ILJ 2981 (CC) (2 September 2014)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 01/14
In
the matter between:
SOUTH
AFRICAN POLICE
SERVICE
.................................................................................
Applicant
and
SOLIDARITY
obo R M
BARNARD
....................................................................................
Respondent
and
POLICE
AND PRISONS CIVIL RIGHTS
UNION
......................................................
Amicus Curiae
Neutral
citation:
South African Police
Service v Solidarity obo Barnard
[2014]
ZACC 23
Coram:
Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza
AJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt AJ, Van der
Westhuizen
J and Zondo J
Heard
on:
20 March 2014
Decided
on:
2 September 2014
Summary:
Section 9 of the Constitution —
equality — unfair discrimination — restitutionary
measures
Employment
Equity Act 55 of 1998
—
section 6
— unfair discrimination
— affirmative action measures
Employment
Equity Act 55 of 1998
—
section 15
— affirmative action
measures — designated employer
South
African Police Service Employment Equity Plan — numerical
targets — designated groups
South
African Police Service National Instruction 1 of 2004 —
National Commissioner vested with discretion to fill vacancy
to
advance representivity and enhance service delivery
ORDER
On
appeal from the Supreme Court of Appeal (hearing an appeal from the
Labour Appeal Court, Johannesburg):
1.
Leave to appeal is granted.
2.
Condonation for the late filing of written
argument is granted.
3.
Leave to supplement the record is granted.
4.
The appeal against the decision of the Supreme
Court of Appeal is upheld.
5.
The order of the Supreme Court of Appeal is set
aside.
6.
The order of the Labour Appeal Court is upheld
subject to paragraph 7 of this order.
7.
There is no order as to costs in the Labour Court, the Labour Appeal
Court, the Supreme Court of Appeal and in this Court.
JUDGMENT
MOSENEKE
ACJ (Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J, Madlanga J and
Zondo J concurring):
Introduction
[1]
This
case brings to the fore difficult, if not emotive, questions of
equality, race and equity at the workplace. The issues
surface
in an application, by the South African Police Service (Police
Service), for leave to appeal against an order of the Supreme
Court
of Appeal.
[1]
That Court
set aside the order of the Labour Appeal Court
[2]
and concluded that the decision of the National Commissioner of the
Police Service (National Commissioner) not to promote an employee
of
the Police Service, Captain Renate M Barnard (Ms Barnard), unfairly
discriminated against her on the ground of race contrary
to section
9(3) of the Constitution and section 6(1) of the Employment Equity
Act
[3]
(Act).
The core issue in that and this Court remains unchanged. Did
the National Commissioner’s decision unfairly
discriminate
against the respondent?
[2]
Ms
Barnard is a member of a registered trade union, Solidarity, which
has represented her throughout the litigation. She and
her
trade union oppose the application and urge the Court to dismiss the
appeal. She has since been promoted to the rank
of
Lieutenant-Colonel in the National Inspectorate Division of the
Police Service. If she were to succeed, she would
not seek
to be appointed to the position she sought earlier but an order for
compensation permitted by the Act.
[4]
[3]
This
Court has admitted the Police and Prisons Civil Rights Union as a
friend of the court (amicus curiae). It operates as
a trade
union in the Police Service, the Correctional Service and the traffic
departments. The amicus curiae and the South
African Police
Organisation are members of and parties to the safety and security
sectoral bargaining council
[5]
(bargaining council). The Police Service Employment Equity Plan
which sits at the hub of this dispute was negotiated and
adopted by
the same bargaining council.
Initial
issues
[4]
Before I narrate the facts, let me dispose of
three preliminary matters. None should detain us. Leave
to appeal should
be granted.
We are
seized with a dispute over pressing constitutional concerns of
equality and non-discrimination – matters of considerable
personal and public importance. Moreover, the divergent
reasoning and outcomes of the two appellate courts impel us to
resolve
the dispute.
[5]
We have to decide whether the applicant and the
amicus
curiae
may supplement the truncated record filed in this
Court. It is in the interest of a proper adjudication of this
dispute that
the record be supplemented. The record is minimal
and contains neither new nor disputed matter. It is drawn from
the
full record that served before the preceding courts. No
prejudice has been claimed or suffered by any party. Also, the
added record is helpful because it provides insights into the
submissions before us. Third, we condone the late filing of
the
applicant’s written argument. It was one day late and the
delay is adequately explained. Neither the Court
nor parties
has been prejudiced by the delay.
Background
[6]
The
material facts to the dispute are uncontested. They have been
usefully rehearsed in three preceding judgments.
[6]
I restate no more than what is necessary to reach the contested legal
matters.
[7]
During
September 2005, the National Commissioner advertised a promotion
position for the rank of superintendent.
[7]
The post was numbered 6903 and located within the National Evaluation
Service Division which has since been renamed the National
Inspectorate. The post
related
to “evaluating and investigating priority and ordinary
complaints nationally”
[8]
to
improve the service delivery of the Police Service to the public.
Although the National Commissioner was entitled to do
so, the
advertisement did not reserve the vacancy for a designated group.
[9]
Ms Barnard together with six other applicants responded to the
advert.
[8]
On 3 November 2005, the applicants were
interviewed by a racially diverse panel of six senior police
officials. The panel
included two superintendents and was
regarded as well placed to appreciate the demands of the post.
Ms Barnard earned 86.67%
which was the highest score amongst the
applicants interviewed. The panel recommended her as the number
one candidate for
the position from a shortlist of four. The
only Black male candidate to make the shortlist had scored 17.5% less
than Ms
Barnard. The panel took the view that he could not be
appointed without compromising service delivery.
[9]
On
9 November 2005, the panel convened a meeting with Divisional
Commissioner Rasegatla to discuss its recommendation.
[10]
During the course of the discussion the Divisional Commissioner
bemoaned the insufficient directives on how to balance employment
equity against the obligation of efficient service delivery. He
remarked that Black men and women were under-represented
in the
division concerned and that if any of the first three recommended
candidates were appointed, the problem would be exacerbated.
He
declined to support the recommendation. He decided that the
vacancy should remain unfilled for reasons of employment equity.
Post 6903 was withdrawn. In the interim, Superintendent
Prinsloo, a white man, was laterally transferred to fill the vacancy
within the division.
[10]
A little past six months, on 11 May 2006, a
similar level 9 vacancy, now described as post 4701, was advertised.
It too was not
reserved for designated groups. Ms Barnard
applied again. Three weeks prior to the interviews a letter was
addressed
to all Deputy National, Provincial and Divisional
Commissioners. The letter advised that when making their
recommendations, the
interviewing panels had to
recommend
personnel who would
enhance
service delivery of the Police
Service.
[11]
Ms Barnard, along with seven other candidates, was
shortlisted and interviewed on 26 June 2006. The candidates
included four
African men; one African woman; one Coloured man and
one White man. The panel was made up of senior police officials
with
diverse racial extraction. Ms Barnard obtained the highest
score and the panel recommended her as the most suitable candidate
for the position. Captain Mogadima (Mr Mogadima), an African
man, was the second recommended candidate. He scored 7.33%
lower than Ms Barnard.
[12]
The interviewing panel recognised that Ms
Barnard’s appointment would not enhance representivity on
salary level 9 but would
not aggravate the racial representivity of
the division either as she was already a part of the division.
They reasoned that
appointing her on salary level 9 would create a
vacancy in level 8 which would be filled in accordance with the
representivity
requirements. The interviewing panel observed
that the difference in the scores between Ms Barnard and the second
candidate,
Mr Mogadima, was small but she was the best candidate.
During the interview, she displayed a distinct brand of passion and
enthusiasm vital to the service-delivery needs of the Police Service.
[13]
On 30 June 2006, the interviewing panel met with
Divisional Commissioner Rasegatla to present its recommendation.
He agreed
with the panel that Ms Barnard be promoted. He was of
the opinion that not promoting Ms Barnard after two rounds of
applications
would foster the wrong impression. He was also
convinced that her appointment would advance service delivery within
the Police
Service. On 10 July 2006, the Divisional
Commissioner addressed a letter to the National Commissioner
recommending that
Ms Barnard be promoted to post 4701. In
relevant part the letter read:
“
The
candidate is recommended as the panel’s first choice candidate
for the post. She has proven competence and extensive
experience at National level in the core functions of the post and
was rated the highest by the promotion panel.”
[14]
On 20 July 2006 the Provincial and Divisional
Commissioners met and discussed recommendations for promotions to
various posts including
post 4701. The following day, the
recommendations were presented to the National Commissioner for his
consideration. At
the meeting, the National Commissioner
consulted with the Deputy National Commissioners and the Divisional
Commissioner of personnel
services and thereafter made a decision.
Despite the recommendation before him, he declined to appoint Ms
Barnard or Mr Mogadima
to the advertised post. He took the view
that the first choice of the interviewing panel did not address the
requirement
of representivity and, since the post was not critical to
service delivery, it should be withdrawn and re-advertised during the
second phase of the year.
[15]
On 27 July 2006, the National Commissioner
reiterated his views in a letter. The letter stated:
“
Your
recommendations do not address representivity and the posts are not
critical and the non-filling of the posts will not affect
service
delivery. The posts should be re-advertised during the phase
2-2006/7 promotion process, during which process you
should attempt
to address representivity.”
The
post was indeed re-advertised as post 5101 but eventually withdrawn.
Ms Barnard did not apply again.
[16]
Ms Barnard was aggrieved by the National
Commissioner’s decision not to appoint her to post 4701.
She filed a complaint
following the grievance procedure of the Police
Service. She requested that her promotion be made effective
backwards to
1 December 2005
.
The Police Service responded
with a
letter to her in which the reasons for the National Commissioner’s
decision not to appoint her were set out.
In relevant part the
letter read:
“
1.
The abovementioned officer’s grievance, dated 2006-10-25
refers.
2.
The National Commissioner has declined to approve the recommendation
for post 4701 due to the following reasons: the recommendation
did
not address representivity;
and the post is not
critical and the non
-filling of the post will not affect
service delivery.
3.
The National Commissioner further directed that the post should be
re advertised during the next promotion process, during
which
process it should be attempted to address representivity.
4.
Although the officer formed part of the relevant Business Unit,
representivity should be achieved at all levels.
5.
With reference to the lateral placement of a white male at the
division, it has to be mentioned that lateral placements are not
handled in terms of the prescripts of the National Instruction 1of
2004 on Promotions.
6.
The officer’s attention is also drawn to the fact that in terms
of National Instruction 1 of 2004 (Promotions), the National
Commissioner is not obliged to fill an advertised post.
7.
It has to be mentioned that the relevant post was re-advertised in
the phase 2 2006/7 (post 5101) promotion process, but
the post
was withdrawn and it was indicated that the filling of the post will
be dealt with once the restructuring of the Division
has been
finalised. This decision further confirms the decision that the
post is not critical and that the non-filling of
the post will not
affect service delivery.
8.
The status quo with regard to the position of the officer is
maintained.
9.
Please inform the officer accordingly.”
[17]
On 11 April 2007, Ms Barnard referred her unfair
discrimination dispute to the Commission for Conciliation, Mediation
and Arbitration
(CCMA) but it remained unresolved. The Police
Service did not attend the conciliation meeting despite due notice.
Ms
Barnard resorted to litigation which would serve before three
courts over a period of nearly seven years.
Litigation
history
[18]
Ms Barnard approached the Labour Court for
relief. Her statement of claim averred that she had not been
promoted because she
was a White person and that the differentiation
she was subjected to amounted to discrimination against her by the
Police Service
on the listed ground of colour as contemplated in
section 6(1) of the Act. She further pleaded that the
discrimination was
unfair and could not be justified on the grounds
of the inherent requirements of the job, affirmative action under the
Act or on
the basis that the discrimination was fair. She added
that her non appointment impacted severely on the service
delivery
of the Police Service.
[19]
She
asked for an order declaring that she had been unfairly discriminated
against on the ground of race contrary to section 6(1)
of the Act and
directing that she be promoted retrospectively to the rank of
superintendent from 1 December 2005. In
addition, relying
on section 50(2)(a) of the Act,
[11]
she claimed damages equal to the monetary loss she suffered from
1 December 2005 to the date of judgment calculated on the
difference of income between the salary of a captain and of a
superintendent or that she be paid compensation in an amount in the
discretion of the Court.
[20]
The statement of response of the Police Service
raised four related defences. First, it asserted that the
National Commissioner
acted lawfully, in pursuit of a legitimate
Employment Equity Plan and the National Instruction. His
decision not to appoint
her was thus on a valid ground. Second,
the applicant’s complaint was not one of unfair discrimination
under section
6(1) of the Act because no appointment was made to any
of the two posts that she had applied for. She was not
discriminated
against or overlooked in favour of someone else.
However, should the Court find that the decision discriminated
against her,
it was a legitimate and justifiable differentiation
because it was based on legitimate grounds and a defensible
Employment Policy
and Plan. In the third instance, it was the
prerogative the National Commissioner to make appointments.
The recommendation
of the interviewing panel did not bind him.
He exercised the discretion lawfully and judiciously. It was
not up to
the applicant but the National Commissioner to decide
whether a particular post would enhance service delivery.
Lastly, the
applicant did not seek to review the decision of the
National Commissioner not to appoint her at all. Her complaint
was misguided.
[21]
The
Labour Court upheld the claim.
[12]
It reasoned that when a claimant complains of unfair
discrimination, the Police Service bears the onus to show that the
discrimination was not unfair. This meant that it must adduce
sufficient evidence to show, on a balance of probabilities,
that the
decision was fair. It concluded that the reasons given by the
National Commissioner were scant and insufficient.
In the
absence of a fully reasoned decision of the National Commissioner,
the Court concluded, the Police Service had failed to
discharge the
onus and thus the decision not to appoint Ms Barnard was unfair and
invalid. The Court added that an Employment
Equity Plan must be
applied fairly with due regard to the affected individual’s
right to equality and that representivity
must be weighed against
that right. It added that it was not appropriate to apply
without more numerical goals set out in
an Employment Equity Plan.
[22]
The
Police Service appealed the decision to the Labour Appeal Court.
[13]
It upheld the appeal and set aside the order of the Labour
Court. It held that the National Commissioner had not
overlooked
Ms Barnard and preferred or appointed another candidate.
Therefore, it reasoned, no discrimination had occurred because no
appointment had been made. In another principal holding, the
Labour Appeal Court said the Labour Court was wrong in treating
the
implementation of restitutionary measures as subject to the
individual conception of the right to equality. It added
that
treating restitutionary measures in that way is bound to stifle
constitutional objectives and result in the perpetuation of
inequitable representation in the workplace. It concluded that
the decision not to promote Ms Barnard in the circumstances
of this
case was justifiable.
[23]
Unhappy,
Ms Barnard approached the Supreme Court of Appeal.
[14]
It held for her and reversed the decision of the Labour Appeal
Court. In effect, it re-instated the decision of the
Labour
Court with a slight adaptation of the initial order. It did not
order her re-instatement but directed that Ms Barnard,
being
successful, should be paid compensation calculated as the difference
between what she would have earned had she been a superintendent
and
what she continued to earn as a captain, but limited to a two-year
period.
[15]
[24]
The
Supreme Court of Appeal’s principal reason for holding in
favour of Ms Barnard was that the decision of the National
Commissioner not to appoint her amounted to discrimination on the
impermissible ground of race. The Police Service was required
to show that the discrimination was not unfair. It did not
discharge that duty. That is so because the reasons of the
National Commissioner for not appointing Ms Barnard were “scant”
and “contrived”. For this conclusion
the Court
sought support from the unfair discrimination protections in section
9(3)
[16]
of the Constitution,
section 6(2) of the Act and the decision of this Court in
Harksen
.
[17]
[25]
Turning to whether the unfilled post was essential
for service delivery, the Court made the factual finding that service
delivery
would be compromised. It reasoned that a senior
position as was advertised cannot be said not to be necessary in the
furtherance
of the Police Service mission to provide a professional
and efficient police service. In the absence of a reasoned
motivation
by the National Commissioner, his explanation that the
post was not filled because it was not critical was contrived.
This
shows, the Court held, from the fact that when the post was not
filled, a senior superintendent was moved laterally to fill in
temporarily a post that was advertised on three occasions.
[26]
The Court held further that whilst it is true that
in terms of the National Instruction, the National Commissioner is
not obliged
to fill a vacancy:
“
[I]t
does not follow that where the only suitable person is from a
non-designated group in relation to representivity, that person
should not be appointed. The foreword to the EEP makes that
clear. This is particularly so where there is no rational
or
proffered explanation, or none at all.”
[18]
[27]
Before I evaluate the correctness of the legal
reasoning of the Supreme Court of Appeal it is necessary to sketch
the applicable
legal framework.
Applicable
law
[28]
Our
constitutional democracy is founded on explicit values. Chief
of these, for present purposes, are human dignity and the
achievement
of equality in a non-racial, non-sexist society under the rule of
law.
[19]
The foremost
provision in our equality guarantee is that everyone is equal before
the law and is entitled to equal protection
and benefit of the
law.
[20]
But, unlike
other constitutions, ours was designed to do more than record or
confer formal equality.
[29]
At
the point of transition, two decades ago, our society was divided and
unequal along the adamant lines of race, gender and class.
Beyond these plain strictures there were indeed other markers of
exclusion and oppression, some of which our Constitution lists.
[21]
So, plainly, it has a transformative mission. It hopes to have
us re-imagine power relations within society.
In so many words,
it enjoins us to take active steps to achieve substantive equality,
particularly for those who were disadvantaged
by past unfair
discrimination. This was and continues to be necessary because,
whilst our society has done well to equalise
opportunities for social
progress, past disadvantage still abounds.
[30]
Our
quest to achieve equality must occur within the discipline of our
Constitution.
[22]
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.
[23]
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.
The scope of this “visionary and inclusive constitutional
structure”
[24]
was
stated in
Fourie
:
“
[T]he
founders committed themselves to a conception of our nationhood that
was both very wide and very inclusive. . . . It
was because the
majority of South Africans had experienced the humiliating legal
effect of repressive colonial conceptions of race
and gender that
they determined that henceforth the role of the law would be
different for all South Africans. Having themselves
experienced
the indignity and pain of legally regulated subordination, and the
injustice of exclusion and humiliation through law,
the majority
committed this country to particularly generous constitutional
protections for all South Africans.”
[25]
[32]
Remedial measures must be implemented in a way
that advances the position of people who have suffered past
discrimination. Equally,
they must not unduly invade the human
dignity of those affected by them, if we are truly to achieve a
non-racial, non-sexist and
socially inclusive society.
[33]
We
must remind ourselves that restitution measures, important as they
are, cannot do all the work to advance social equity.
A
socially inclusive society idealised by the Constitution is a
function of a good democratic state, for the one part, and the
individual and collective agency of its citizenry, for the other.
Our state must direct reasonable public resources to achieve
substantive equality “for full and equal enjoyment of all
rights and freedoms.”
[26]
It must take reasonable, prompt and effective measures to realise the
socio-economic needs of all, especially the vulnerable.
In the
words of our Preamble the state must help “improve the quality
of life of all citizens and free the potential of each
person.”
[27]
That ideal would be within a grasp only through governance that is
effective, transparent, accountable and responsive.
Our public
representatives will also do well to place a premium on an honest,
efficient and economic use of public resources.
[34]
A
closer scrutiny of the equality protection shows that direct or
indirect unfair discrimination by the state or anyone on any of
the
listed grounds is forbidden. Discrimination on a listed ground
is unfair unless shown not to be. National legislation
must
prevent unfair discrimination.
[28]
The Act is a species of national legislation that regulates
equality and non-discrimination at the workplace.
[35]
An
allied concern of our equality guarantee is the achievement of full
and equal enjoyment of all rights and freedoms.
[29]
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 section 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.
[30]
[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.
[31]
It says measures
of this order may be taken. Section 6(2) of the Act, whose
object is to echo section 9(2) of the Constitution,
is quite explicit
that affirmative action measures are not unfair. This however,
does not oust the court’s power to
interrogate whether the
measure is a legitimate restitution measure within the scope of the
empowering section 9(2).
[38]
The next question beckoning is whether the manner
in which a properly adopted restitution measure was applied may be
challenged.
The answer must be, yes. There is no valid
reason why courts are precluded from deciding whether a valid
Employment Equity
Plan has been put into practice lawfully.
This is plainly so because a validly adopted Employment Equity Plan
must be put
to use lawfully. It may not be harnessed beyond its
lawful limits or applied capriciously or for an ulterior or
impermissible
purpose.
[39]
As a bare minimum, the principle of legality would
require that the implementation of a legitimate restitution measure
must be rationally
related to the terms and objects of the measure.
It must be applied to advance its legitimate purpose and nothing
else.
Ordinarily, irrational conduct in implementing a lawful
project attracts unlawfulness. Therefore, implementation of
corrective
measures must be rational. Although these are the
minimum requirements, it is not necessary to define the standard
finally.
Employment
Equity Act
[40
]
The
mission of the Act is diverse. For now, its important objects
are to give effect to the constitutional guarantees of equality;
to
eliminate unfair discrimination at the workplace; and to ensure
implementation of employment equity to redress the effects of
past
discrimination in order to achieve a diverse workforce representative
of our people. The Act expressly prohibits unfair
discrimination.
[32]
It
obliges a designated employer to take affirmative action
measures.
[33]
The Police
Service is a designated employer.
[34]
Designated employers must ensure that suitably qualified employees
from designated groups are equally represented in each
working
category of the designated employer. The Act requires that an
employment equity plan must be devised and approved.
Affirmative action measures must be taken in accordance with an
approved employment equity plan.
[35]
[41]
Section
15 describes the permissible character of affirmative action
measures. They must be designed to ensure that “suitably
qualified people from designated groups have equal employment
opportunities and are equitably represented in all occupation
categories
and levels”.
[36]
I pause to underline the requirement that beneficiaries of
affirmative action must be equal to the task at hand. They
must
be suitably qualified people in order not to sacrifice efficiency and
competence at the altar of remedial employment.
The Act sets
itself against the hurtful insinuation that affirmative action
measures are a refuge for the mediocre or incompetent.
Plainly,
a core object of equity at the workplace is to employ and retain
people who not only enhance diversity but who are also
competent and
effective in delivering goods and services to the public.
[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”.
[38]
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 section
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.
[43]
Lastly,
the Act requires the Director-General to police whether a designated
employer implements employment equity in accordance
with the Act and
with a list of further factors.
[39]
Employment
Equity Plan
[44]
During
2001 the Police Service adopted an Employment Equity Plan as a
collective agreement under the bargaining council which binds
Police
Service employees.
[40]
It
sets numerical norms by reference to which staff appointments and
promotions should be made within the Police Service.
They are
based on a grid
that
divides
existing
personnel
by
race
and
gender
in
order
to
produce
a
distribution
of
staff
within
the
hierarchy
that reflects
race
and
gender.
[45]
Due
to the high number of employees of the Police Service, its employment
equity targets are linked to divisional business units.
[41]
The targets are informed by national demographics. Each
grade level shows what the tally would be if it reflected national
demographics. The Employment Equity Plan provides for numeric
employment equity targets consisting of 16 salary levels. The
targets are split into “ideal” and “realistic”.
The ideal targets hope for 90% of appointments to
be made from
designated groups. In respect to middle management positions
(salary levels 8 to 12) the realistic targets
comprise
appointments of 75% from designated groups. It follows that the
ideal target for non-designated groups is 10% and
the realistic
target is 25% of appointments.
National
Instruction
[46]
In
the course of 2004 the National Commissioner issued a National
Instruction
[42]
(Instruction)
which pertinently regulated the manner in which promotions within the
Police Service were to be dealt with.
It
provides that the Employment Equity Plan is binding on all members of
the Police Service. Observing its requirements was
mandatory.
The Instruction stipulates that selections must be based on a
consideration of all relevant information
and
sets out the criteria upon which the decision must be based.
They comprise
—
“
(a)
competence based on the inherent requirements of the job or the
capacity to acquire, within a reasonable time, the ability to
do the
job;
(b)
prior learning, training and development;
(c)
record of previous experience;
(d)
employment equity in line with the Employment Equity Plan of the
relevant business unit;
(e)
evidence of satisfactory performance;
(f)
suitability; and
(g)
record of conduct.”
[43]
[47]
The
Instruction sets out the parameters within which a selection panel
must work. Its promotion guidelines vest a wide discretion
in
the National Commissioner. Although the interviewing panel and
the Divisional Commissioner must recommend a list of suitable
candidates, the recommendations are not binding on the National
Commissioner. Rule 13(4) stipulates that appointments to
salary
level 8 and higher must be forwarded to the National Commissioner for
his approval.
[44]
He or
she may decline to appoint or leave a vacancy unoccupied. The
ultimate decision remains with him or her.
Decision
of the Supreme Court of Appeal
[48]
The
Supreme Court of Appeal adjudged the respondent’s equality
claim as one of unfair discrimination on the ground of race
and that
it fell within the prescripts of section 9(3) of the Constitution and
section 6(1) of the Act. It resorted to the
Harksen
[45]
test and concluded that the Police Service had not discharged the
presumption of unfairness attracted by a claim based on a listed
ground.
[46]
[49]
Its underpinning legal reasoning is divulged in
the passage below:
“
I
turn to consider the correctness of the LAC’s decision.
The starting point for enquiries of the kind under consideration
is
to determine whether the conduct complained of constitutes
discrimination and, if so, to proceed to determine whether it is
unfair. When a measure is challenged as violating the
Constitution’s equality clause, its defender could meet the
claim by showing that it was adopted to promote the achievement of
equality as contemplated by section 9(2), and was designed to
protect
and advance persons disadvantaged by prior unfair discrimination.
Similarly, as stated above, section 11 of the EEA
provides that
whenever unfair discrimination is alleged, the employer against whom
the allegations are made must establish that
it is fair.”
[47]
[50]
Later the Court expanded its reasoning:
“
Having
determined that there was discrimination based on a specified ground,
namely race, it is necessary to turn to the next question;
whether
the SAPS had established that the discrimination is fair. In this
regard, the Constitutional Court in
Harksen
stated
the following:
‘
the
test of unfairness focuses primarily on the impact on the complainant
and others in his or her situation’.
Although
that case dealt with direct reliance on the equality clause in the
interim Constitution, the same test, in my view, would
apply in
relation to reliance on section 6 read with section 11 of
EEA.”
[48]
[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 section 9(2) of the
Constitution and section 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 authorised by section
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. Ordinarily, an
incorrect appreciation of the applicable law is sufficient to dispose
of an
appeal. Here too the appeal should succeed. Ms
Barnard, however, was adamant that the appeal should fail, but for
another
reason.
Respondent’s
contentions
[54]
The
respondent diverged from her original statement of claim in the
Labour Court. She chose to persist only with a narrow
part of
her written argument. In oral argument, she jettisoned her
detailed attack against the Employment Equity Plan and
the
Instruction as unjustifiable infringements of her equality protection
because they amounted to racial quotas or racial norming
or racial
profiling. We are thus not called to pronounce on a possible
breach of the statutory prohibition against quotas
to be found in
section 15(3) read with section 15(4) of the Act. That, in any
event, was not her case in her statement of
claim. Let it
suffice to observe that the primary distinction between numerical
targets and quotas lies in the flexibility
of the standard.
Quotas amount to job reservation and are properly prohibited by
section 15(3) of the Act.
[49]
The same section endorses numerical goals in pursuit of work
place representivity and equity. They serve as a flexible
employment guideline to a designated employer.
[55]
In her words:
“
Whatever
the position may previously have been, the issues in these
proceedings are narrow. SAPS accepts that the National
Commissioner had to make his decision in accordance with the criteria
set out in the Instruction and the respondent has no quarrel
with the
stance. Placing employment equity in the balance with the other
listed factors and drawing a judicious conclusion
in the process is
manifestly what the EEA requires, and we discern no challenge to this
proposition in the proceedings before this
court. As the
decision of the SCA correctly accepts, the EEA in mandating
affirmative action requires the exercise of a discretion
that
comprehends a balancing of all the factors relevant to the decision.
Erecting race or gender as an absolute barrier
to the advancement of
a candidate for appointment or promotion is simply in breach of the
law.”
[56]
She later refines the contours of her case in this
Court:
“
For
its part, the respondent agrees that a decision on promotion must
take account of all the relevant factors and sees no reason
to
quarrel with the list of criteria contained in the Instruction.
In saying this, it is conceding that race and gender are
legitimate
touchstones of employment equity and so it accepts that it is
legitimate for the National Commissioner to take account
of these
matters in the course of a judicious consideration of the compendium
of relevant factors.”
[57]
It then became clear that in this Court, the
respondent had turned her guns on the decision of the National
Commissioner as injudicious
and one that ought to be set aside.
This is how she formulated the issue:
“
What
is centrally in issue is whether the National Commissioner, in making
his decision, in fact followed the approach mandated
in the
Instruction and by the EEA. This entails an examination of his
reasons or, to put it more correctly, the reasons that
were
legitimately tendered in the course of the legal proceedings.
Since, it was common cause, the decision was taken in
pursuit of the
prevailing employment equity plan, the Plan itself becomes a source
for determining the content of his decision.”
[58]
The
gut of the complaint is that in declining to appoint her, the
National Commissioner made an unlawful and unreasonable decision
which must be set aside. To bolster the contention, she
advanced a number of criticisms. The National Commissioner
did
not properly take into account her merit and competence. He had
not brought to reckon all relevant factors before deciding
on the
promotion. He rather attached undue weight on demographic
equity at the expense of her personal competence.
The impugned
decision was unreasonable because he furnished inadequate reasons for
it. His letter in response to the recommendation
of the
interviewing panel was silent on the factors he weighed. That
showed that he did not consider relevant factors other
than those
reflected in the rejection letter. Relying on
WC
Greyling
,
[50]
the
respondent contended that where a decision maker exercises his power
with a closed mind he will reach an unreasonable decision.
[59]
This is a new cause of action that departs from
the respondent’s averments in the statement of claim in the
Labour Court.
It is directed, not at unfair discrimination
based on race under section 6(1) of the Act, but at reviewing and
setting aside the
National Commissioner’s decision not to
appoint her. It will be remembered that before the Labour
Court, the National
Commissioner decried the fact that no relief was
sought to review his decision. Ms Barnard did not adjust her
statement of
claim to meet the response of the National
Commissioner. Her present complaint amounts to a review of an
impugned decision.
It is urged upon us at the final appellate
stage and as a new line of attack. This is impermissible.
[60]
The
bid to review and set aside the decision of the National Commissioner
is not properly before us. If he were not to be
prejudiced, the
National Commissioner was entitled to a proper notice of the review
relief now sought.
[51]
This would be in accordance with the principle of legality and also,
if applicable, the provisions of Promotion of Administrative
Justice
Act (PAJA).
[52]
Another
consideration relates to the common law time limits for bringing
review proceedings
[53]
as well
as the PAJA 180-day rule, if applicable.
[54]
We have no explanation that would entitle us to overlook the delay.
This belated attempt to seek the review and setting
aside of
the National Commissioner’s decision must fail.
[55]
Even if I were benevolently to entertain the review, it is
without merit. This I say for the reasons that follow.
[61]
The
respondent is correct in contending that the decision of the National
Commissioner must be adjudged against the selection criteria
for
promotion prescribed by the Instruction. It will be recalled
that earlier we recited the criteria.
[56]
The candidate must have existing or potential competence to do
the job applied for. Seemingly, competence could be
evidenced
by ancillary criteria listed, like prior learning and training, past
experience and satisfactory performance and suitability.
The
latter is defined as an ability to function at the next higher post
level.
[57]
There are two
self-standing additional requirements. The candidate must have
an acceptable record of conduct and the
promotion must heed the
Employment Equity Plan of the relevant business unit.
[58]
Should the Provincial or Divisional Commissioner recommend a
promotion that does not address representivity at the level
of the
post in the business unit, she or he must record this with full
motivation.
[59]
It is
against this consideration that we must evaluate the decision of the
National Commissioner.
[62]
The respondent accepted, as we must, that the
Instruction gave the National Commissioner the power and discretion
to confirm or
forgo the recommendations made by the interviewing
panel and Divisional Commissioner. He was not bound by the
recommendations,
particularly in relation to salary level 9 posts.
The National Commissioner retained the power to appoint a candidate
best
suited to the objects of the Employment Equity Plan. The
record shows that on several other occasions, the National
Commissioner
declined to fill up positions because suitable
appointments, which would have addressed representivity, could not be
made. Here,
he exercised his discretion not to appoint Ms
Barnard, even though she had obtained the highest score, because her
appointment
would have worsened the representivity in salary level 9
and the post was not critical for service delivery. Again, in
his
discretion, he chose not to appoint Mr Mogadima or Captain
Ledwaba (Mr Ledwaba) even though their appointment would have
improved
representivity. I cannot find anything that makes his
exercise of discretion unlawful.
[63]
Next is the issue of service delivery. It is
so that Ms Barnard scored very well before the interviewing panel,
not once but
twice. On the second occasion, Mr Mogadima
and Mr Ledwaba also scored well above average. Both obtained
slightly
lower scores than Ms Barnard. Ms Barnard correctly
conceded that they were both appointable, that they would have
provided
satisfactory service and would not have compromised service
delivery and had they been appointed, she would not have felt
aggrieved.
[64]
But the issue is whether Ms Barnard’s
non-appointment would have sacrificed service delivery. The
Supreme Court of Appeal
thought so. Before this Court she
accepted, contrary to the finding of that Court, that the decision
not to appoint her did
not adversely affect service delivery. It
is so that the post was filled on an interim basis and later
re-advertised.
This does suggest that the position was needed.
But, then again, the post was listed as non-critical, and the facts
show
that it was never ultimately filled. The National
Commissioner chose to reconfigure the division concerned. There
is
no valid cause to reject the National Commissioner’s
operational assessment that service delivery would not have suffered
from not appointing Ms Barnard
.
[65]
What remains is the mainstay of Ms Barnard’s
contentions. Is the decision of the National Commissioner
injudicious and
invalid because he over-emphasised representivity at
the expense of her competence? The question recast: was the
National
Commissioner entitled to refuse to fill the vacancy for the
reason that it would have negatively affected the numerical targets
of the Employment Equity Plan? If so, did he under-value the
competence of Ms Barnard? More aptly, was the decision
of the
National Commissioner reviewable because it was unreasonable and thus
unlawful?
[66]
The Employment Equity Plan obliged the National
Commissioner to take steps to achieve the targets, provided he acted
rationally
and with due regard to the criteria set by the
Instruction. He was within his right and indeed duty to take
steps that would
achieve the set targets. It is so that the
implementation of a valid plan may amount to job reservation if
applied too rigidly.
But was that the case here? For
several reasons, I do not think that the National Commissioner
pursued the targets
so rigidly as to amount to quotas. First,
over-representation of white women at salary level 9 was indeed
pronounced.
That plainly meant that the Police Service had not
pursued racial targets at the expense of other relevant
considerations. It
had appointed white female employees despite
equity targets. Had the Police Service not done so, white
female employees would
not have been predominant in any of the levels
including salary level 9 nor would they have been able to retain
their posts.
[67]
Second, the decision not to promote Ms Barnard did
not bar her from future promotions. She was at the time of the
hearing
in this Court a Lieutenant-Colonel. If her progress
through the ranks of the Police Service was subject to strict equity
considerations alone, she would have never been promoted past salary
level 9 to a level 10 or higher post. Her stellar rise
through
the ranks needed more than racial representivity alone to preclude
it. Clearly, the National Commissioner’s
decision was
nowhere near an absolute bar to her advancement.
[68]
Another consideration is that, although Ms Barnard
was unhappy about the outcome of her promotion bid, she was well
aware that the
interview and selection would occur within the
strictures imposed by employment equity. She was alive to the
targets under
the Employment Equity plan and she accepted beforehand
that although she may become the best candidate, that was not the
only relevant
consideration for appointment. Ms Barnard
candidly testified that she knew when she applied for the promotion
that the National
Commissioner might decline to appoint her in
pursuit of equity targets. Also, she was aware that there was
an over-population
of white female employees at salary level 9.
She knew and accepted the targets under the Employment Equity Plan.
She
added that, had Mr Mogadima or Mr Ledwaba been appointed
ahead of her, she would have had no grievance.
[69]
I
am unable to agree that the reasons furnished by the National
Commissioner for not appointing Ms Barnard are scant and attract
an
inference of unreasonable decision-making and illegality.
Earlier, I have quoted verbatim the letters setting out the
National
Commissioner’s reasons for declining to appoint Ms
Barnard.
[60]
The reasons
must be read in conjunction with the comprehensive letter of the
Divisional Commissioner in glowing support of
Ms Barnard’s
candidature. The National Commissioner made express reference
to the letter and must have been aware of
Ms Barnard’s
competence. Even so, he chose to create an opportunity to
enhance employment equity goals by not appointing
her.
[70]
In my judgment, the National Commissioner
exercised his discretion not to appoint Ms Barnard rationally and
reasonably and in accordance
with the criteria in the Instruction, in
pursuit of employment equity targets envisaged in section 6(2) of the
Act. The attempt
at reviewing and setting aside his decision
would, in any event, have failed.
[71]
Lastly, I have read the three carefully crafted
concurring judgments of my brothers: Cameron J, Froneman J and
Majiedt AJ; Van der
Westhuizen J; and Jafta J. I concur in the
judgment penned by Jafta J.
Conclusion
[72]
The appeal should succeed and the order of the
Supreme Court of Appeal should be set aside. There should be no order
as to costs.
Order
[73]
The following order is made:
1.
Leave to appeal is granted.
2.
Condonation for the late filing of written argument is granted.
3.
Leave to supplement the record is granted.
4.
The appeal against the decision of the Supreme Court of Appeal is
upheld.
5.
The order of the Supreme Court of Appeal is set aside.
6.
The order of the Labour Appeal Court is upheld subject to paragraph 7
of this order.
7.
There is no order as to costs in the Labour Court, the Labour Appeal
Court, the Supreme Court of Appeal and in this Court.
CAMERON
J, FRONEMAN J AND MAJIEDT AJ:
[74]
As
Moseneke ACJ observes in the main judgment, this case raises
difficult and often emotive questions of equality, race and equity
in
the workplace.
[61]
The
main judgment eloquently sets out the constitutional principles and
values that underlie the assessment of these questions.
[62]
We concur in that reasoning and the outcome of the appeal. But
we write separately in order, first, to discuss the
tensions that
accompany the formulation and implementation of restitutionary
measures that give effect to the transformative demands
of the
Constitution. We consider this important, since frank
acknowledgment of these tensions is necessary to allow our society
to
move forward and to ensure a rational discussion that provides hope
for the future for all.
[75]
Second, we analyse the appropriate standard that
should apply when a litigant challenges the implementation of a
constitutionally
compliant restitutionary measure in a particular
case. The main judgment finds it unnecessary to deal with this
standard.
We disagree. Ms Barnard brought her case
squarely within the parameters of the
Employment Equity Act (Act
).
Her statement of case sets out the essential factual allegations on
which she relies for setting aside the National Commissioner’s
decision not to promote her, including the inadequacy of his stated
reasons for doing so. These reasons inform the determination
of
whether the National Commissioner’s decision was permissible
under the Act. We therefore consider it necessary to
determine
the feasibility of her claim, both in fact and law. This is the
first case before this Court that deals with the
standard to be
applied in assessing the lawfulness of the individual implementation
of constitutionally compliant restitutionary
measures. It is
important to give guidance on this difficult issue.
[76]
We
consider the appropriate standard to be fairness. We elaborate
on that standard below.
[63]
We also discuss the importance of giving due recognition to the
possible infringement of dignity in the implementation of
restitutionary measures and the importance of giving adequate reasons
for these decisions.
Transformative
tension
[77]
This
case shows how balancing important constitutional imperatives can
give rise to tensions. The Constitution commits us
to
recognising and redressing the realities of the past.
[64]
And it is committed to establishing a society that is non-racial,
non-sexist and socially inclusive.
[65]
These two commitments can create tension. And there is a
tension between the equality entitlement of an individual
and the
equality of society as a whole. A tension also arises when our
laws attempt to advance multiple groups of previously
disadvantaged
persons that do not fully overlap. The resolution of this case
should address these tensions and provide a
framework that permits
these constitutional goals to be read harmoniously.
[78]
The
basic legal framework outlined in the main judgment allows for a
harmonious reading.
[66]
It correctly observes that the Constitution has a transformative
mission and permits government to take remedial measures
to redress
the lingering and pernicious effects of apartheid.
[67]
It does so even though this commitment means that individuals may be
adversely affected by the process of transformation.
As this
Court has previously observed:
“
[T]ransformation
is a process. There are profound difficulties that will be
confronted in giving effect to the constitutional
commitment of
achieving equality. We must not underestimate them. The
measures that bring about transformation will
inevitably affect some
members of the society adversely, particularly those coming from the
previously advantaged communities.
It may well be that other
considerations may have to yield in favour of achieving the goal we
fashioned for ourselves in the Constitution.”
[68]
[79]
But,
as the main judgment points out, the process of transformation must
be true to the Constitution.
[69]
This means, in the first place, that we should pause to recognise the
perils that may beset affirmative action. Remedial
measures may
exact a cost our racial history demands we recognise. The
Constitution permits us to take past disadvantage
into account to
achieve substantive equality.
[70]
But it does so generous heartedly and ambitiously: it licenses
reparative measures designed to protect or advance all
persons who
have been disadvantaged by any form of unfair discrimination.
For reasons of history, racial and gender disadvantage
are the most
prominent. But they are not the only. They do not exclude
other signifiers of disadvantage, like social
origin or birth.
[71]
We must implement affirmative action bearing the breadth of this
power in mind.
[80]
We should also be careful not to allow race to
become the only decisive factor in employment decisions. For
this may suggest
the invidious and usually false inference that the
person who gets the job has done so not because of merit but only
because of
race. Over-rigidity therefore risks disadvantaging
not only those who are not selected for a job, but also those who
are.
[81]
Race, in other words, is still a vitally important
measure of disadvantage, but in planning our future we should bear in
mind the
risk of concentrating excessively on it. To achieve
the magnificent breadth of the Constitution’s promise of full
equality
and freedom from disadvantage, we must foresee a time when
we can look beyond race.
Different
causes of action
[82]
As
the main judgment explains, Ms Barnard chose not to bring a formal
judicial review application. In the light of this Court’s
decision in
Gcaba
,
[72]
it is unclear whether she could have done so in these proceedings.
But that does not matter. The point is not dispositive
of Ms
Barnard’s case. This is because there is another
challenge, one Ms Barnard clearly did raise. As the main
judgment explains at the very outset, the “core issue”
throughout the litigation has been whether Ms Barnard was unfairly
discriminated against.
[73]
That is a challenge that is squarely before us. It is distinct
from an administrative-law review. It is a cause
of action that
arises directly from the Act, which prohibits unfair discrimination
by an employer against an employee or applicant
for employment.
[74]
This Court’s task is therefore to mediate the tension between
that prohibition and the Act’s recognition that
affirmative
action measures are justified,
[75]
and to formulate a suitably robust, constitutionally compliant
standard by which to adjudicate Ms Barnard’s claim.
[83]
We must do so mindful of the fact that the
lawfulness of the SAPS’s Employment Equity Plan (Plan) is not
at issue. In
oral argument before us Ms Barnard accepted
that the Plan was not the subject of her attack. To that
extent, we agree
with the main judgment.
[84]
But
Ms Barnard did strongly contend that the individual implementation of
the Plan as it applied to her was unlawful. The
main judgment
holds that we should not decide even this issue.
[76]
We disagree. Even if Ms Barnard did not seek the judicial
review of the National Commissioner’s decision, she
did urge,
in all four courts, that it discriminated against her unfairly.
It seems to us impossible to decide Ms Barnard’s
complaint, or
the SAPS’s appeal against the Supreme Court of Appeal judgment,
without determining how courts ought to evaluate
the National
Commissioner’s decision against the requirements of the Act.
Individual
implementation
[85]
There
is no doubt that Ms Barnard brought her claim in the Labour Court in
terms of the provisions of the Act. The Labour
Court has
“exclusive jurisdiction to determine any dispute about the
interpretation or application of the Act, except where
the Act
provides otherwise”.
[77]
In performing this function, courts have the power to review the
conduct of the National Commissioner.
[78]
According to section 10(1) of the Act, a dispute about an unfair
dismissal is excluded and must be dealt with in terms of
the Labour
Relations Act.
[79]
[86]
The
Act prohibits unfair discrimination.
[80]
As stated, Ms Barnard’s complaint was that the National
Commissioner’s decision, which denied her promotion because
she
was white, fell foul of this prohibition. The difficulty Ms
Barnard faces is that the Act says “[i]t is not unfair
discrimination to take affirmative action measures consistent with
the purpose of this Act”.
[81]
The SAPS defended the National Commissioner’s decision on this
basis. But, crucially, this defence avails the
SAPS only if the
National Commissioner’s decision is “consistent with the
purpose of [the] Act”. So the
Court’s task here is
to understand what that purpose is, and to determine whether the
National Commissioner’s decision
was consistent with it.
[87]
The
Act’s explicitly stated purpose is to achieve workplace equity
including 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”.
[82]
This, by itself, does not determine when a restitutionary measure or
its implementation is permissible. But the Act
provides
important clues elsewhere.
[83]
First, it makes plain that the Act does not sanction affirmative
action measures that are overly rigid. As discussed
in more
detail below, this is because affirmative action measures “include
preferential treatment and numerical goals, but
exclude quotas”.
[84]
And the Act does not countenance employment decisions “that
would establish an absolute barrier” to the employment
or
advancement of those not from designated groups.
[85]
[88]
In
addition, the Act aims to advance several different “designated
groups”.
[86]
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.
[87]
Employers “must” implement affirmative action measures
that benefit people from all designated groups.
[88]
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.
[89]
Finally,
the Act insists on affirmative action measures “based on equal
dignity and respect of all people”.
[89]
In doing so it reiterates dignity’s fundamental constitutional
importance, both as a right and underlying value,
[90]
in compliance with which the Act must be interpreted.
[91]
Generally speaking, the advancement of those previously disadvantaged
marks the equal dignity of all.
[92]
But affirmative action measures can also undermine the dignity of
those negatively affected by them. The Act requires
us to be
vigilant against that threat.
[93]
And, of course, an applicant’s merit cannot be disregarded,
[94]
especially when it affects the SAPS’s ability to provide a
vital public service efficiently.
[95]
[90]
We develop these ideas in what follows. For
now, it is important to note the provisions of section 15(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.” (Emphasis added.)
This
provision makes it clear that the Act not only addresses the
requirements of affirmative action measures in general, but also
proscribes the individual implementation of those measures based on
absolute barriers to non designated groups. As noted
in
the main judgment, this is exactly Ms Barnard’s complaint.
[96]
[91]
It
is also relevant to consider section 15(3) of the Act, which states
that remedial measures may “include preferential treatment
and
numerical goals, but exclude quotas.” The main judgment
holds this is not an appropriate case to determine the
difference
between numerical goals and quotas.
[97]
In our view, Ms Barnard has placed this question directly before
the Court, and we must determine whether the National
Commissioner’s
implementation of the Plan was indeed so rigid as to constitute the
use of quotas instead of numerical goals.
[92]
In her statement of claim Ms Barnard
comprehensively particularised the facts upon which her claim was
based. She then set
out the legal issues arising from these
facts. These were wide-ranging but, crucially, included the
following:
“
[Ms
Barnard] was not considered for promotion simply because she is a
white person.
.
. .
As
a result the [SAPS]’s failure to appoint [Ms Barnard] on the
reasons provided is both irrational and unfair and sustains
[her]
submission that the [SAPS] has an irrational and haphazard pursuit of
representivity which is contrary to the scope and purpose
of the
Employment Equity Act&rdquo
;.
Ms
Barnard’s statement of claim, relying on the Act, adequately
raised the allegedly unfair implementation of the SAPS’s
affirmative action measures, on the basis that they amounted to an
absolute bar because of her race. The trial was conducted
on
that basis. The individual implementation of the Plan and the
standard to be applied in determining whether that implementation
was
lawful are before us, as they were in the lower courts.
The
applicable standard
[93]
These
questions are important because care must be taken to ensure that
remedial measures do not infringe unduly an individual’s
right
to dignity. After all, remedial measures are an exception to
the important general principle that personal attributes
such as race
and gender are not proper bases for granting or refusing employment
or other opportunities. This is because
they have no bearing on
an individual’s capacity, ability or intelligence. The
Constitution makes an exception because
it recognises that
substantive equality can be achieved only by providing advantages to
groups of people upon whom apartheid imposed
heavy
disadvantages.
[98]
Even
so, we must note with care how these remedial measures often utilise
the same racial classifications that were wielded
so invidiously in
the past. Their motivation is the opposite of what inspired
apartheid: for their ultimate goal is to allow
everyone to overcome
the old divisions and subordinations. But fighting fire with
fire gives rise to an inherent tension.
That is why, as the
main judgment observes, we must “remain vigilant that remedial
measures under the Constitution are not
an end in themselves.”
[99]
[94]
We
agree with the main judgment that, to exercise this vigilance,
remedial measures “must not unduly invade the human dignity
of
those affected by them, if we are truly to achieve a non-racial,
non-sexist and socially inclusive society.”
[100]
But we differ from the main judgment’s assessment of a standard
to determine whether the implementation of a remedial
measure has
adequately balanced substantive equality with the dignity of the
person negatively affected by the measure. The
main judgment
itself considers a standard by which the National Commissioner’s
decision may be adjudged.
[101]
It concludes that the implementation of remedial measures should be
rationally related to the terms and objects of the measure.
[102]
We agree that rationality is the “bare minimum”
requirement.
[103]
It
can hardly be otherwise. In our law all exercises of public
power must at least be rational.
[104]
[95]
But adjudicating Ms Barnard’s challenge
requires us to apply a less deferential standard than mere
rationality. Her
complaint was that she had been unfairly
discriminated against, in contravention of the Act. In our
view, that Act imposes
a standard different from, and additional to,
rationality. The important constitutional values that can be in
tension when
a decision-maker implements remedial measures require a
court to examine this implementation with a more exacting level of
scrutiny.
[96]
This heightened scrutiny does not mean that courts
should second-guess the reasoned choices of other branches of
government.
But it does require that judges ensure a
decision-maker has carefully evaluated relevant constitutional and
statutory imperatives
before making a decision that relies
predominantly on one of the criteria, such as race, that are normally
barred from consideration
by section 9(3) of the Constitution.
Were we to adopt the more deferential standard suggested by the main
judgment, it would
be difficult ever to hold that a decision-maker
had impermissibly converted a set of numerical targets into quotas.
Any decision
that accords with the numerical targets would bear at
least some rational connection with the measure’s legitimate
representivity
goals. But a decision-maker cannot simply apply
the numerical targets by rote. Similarly, a rationality
standard does
not allow a court to interrogate properly a
decision-maker’s balancing of the multiple designated groups,
or of their interests
against those adversely affected by the
restitutionary measures.
[97]
We
acknowledge that the nature of the rights to just administrative
action, fair labour practices and non-discrimination often overlap
and cannot be compartmentalised into watertight categories.
[105]
There is nevertheless a need to deal with the requirements and
complexities of each in a specific way. That much was
recognised in
Gcaba
in
relation to unfair labour disputes.
[106]
Alleged discrimination under the Constitution similarly raises its
own problems. We must therefore formulate a standard
specific
to the Act, one that is rigorous enough to ensure that the
implementation of a remedial measure is “consistent with
the
purpose of [the] Act” – namely, to avoid over-rigid
implementation, to balance the interests of the various designated
groups, and to respect the dignity of rejected applicants.
[98]
For
these reasons, we consider the appropriate standard to be
fairness.
[107]
Unlike
mere rationality, it is sufficiently encompassing to allow courts to
assess consistency with the provisions and purposes
of the Act, which
recognise the importance of “fair treatment in
employment”.
[108]
In addition, fairness is a foundational constitutional value.
In
Mphaphuli
O’Regan
J stated:
“
Fairness
is one of the core values of our constitutional order: the
requirement of fairness is imposed on administrative decision-makers
by section 33 of the Constitution; on courts by sections 34 and 35 of
the Constitution; in respect of labour practices by section
23 of the
Constitution; and in relation to discrimination by section 9 of the
Constitution.”
[109]
And
it is a standard the Constitution recognises in the specific context
of employment practices and in relation to restitutionary
measures.
[110]
[99]
There
are two objections to the use of fairness as a standard. First,
it is too vague; second, it may be internally inconsistent
in
individual implementation cases, where the general restitutionary
measures or policies have already passed constitutional muster
and
thus do not constitute unfair discrimination.
[111]
Neither objection is convincing.
[100]
Fairness
is an open-ended norm. But so are norms of reasonableness,
proportionality, wrongfulness and negligence in delict,
and public
policy and good faith in contract. Over time the application of
these norms becomes more certain as precedent
is built up.
Today the unfair labour practice norm in labour law is hardly
questioned. It was not so in the days of
its birth. So
too will the fairness norm here crystallise over time while at the
same time giving courts the necessary flexibility
to deal with new
cases. Indeed, the Act already gives considerable content to
the fairness standard, as explained above.
[112]
[101]
Assessing the fairness of the individual
implementation of affirmative action measures is different to
deciding whether those measures
amount to unfair discrimination.
The latter enquiry is at the general level of determining whether the
formulation and content
of a restitutionary measure are
constitutionally compliant. The former enquiry examines whether
a specific implementation
of a measure that is constitutionally
compliant in its general form is nevertheless in conflict with the
provisions of the Act.
We must insist that the specific
implementation as well as the general formulation of remedial
measures be fair.
[102]
We
must therefore determine whether the National Commissioner’s
decision not to appoint Ms Barnard was a fair implementation
of the
Plan. In doing so, we examine both the objective facts of the
case and the reasons the National Commissioner gave
for his
decision. Here, we also differ from the main judgment, which
says that an evaluation of these reasons is not before
the
Court.
[113]
[103]
This
is not a review challenge. Had it been, the sufficiency of the
National Commissioner’s reasons, and their connection
with his
decision, would have been squarely in issue. But what Ms
Barnard did challenge was the implementation of the Plan
under the
Act. (This challenge means that the time limits in PAJA are not
applicable and therefore that the concerns the
main judgment raises
about them are undue.)
[114]
And the reasons the National Commissioner gave are important.
This is because they provide evidence whether his implementation
was
fair.
[104]
The reasons are particularly important here,
because other evidence is limited. The SAPS did little else to
justify its decision.
The National Commissioner did not depose
to an affidavit explaining his decision, or his reasoning in making
it. The SAPS
did not elaborate on the stated reasons in the
lower courts or in its arguments here. We ultimately find that
this is not
fatal, because there are sufficient external facts to
determine that the National Commissioner’s decision was fair.
But in another case the reasons provided could be the only evidence
demonstrating that a decision maker implemented a plan
fairly,
especially if the external facts point to the opposite conclusion.
[105]
This
only reinforces the need for decision-makers to give adequate reasons
for their decisions. Our constitutional values
of
accountability, transparency and openness require this.
[115]
And to truly qualify as reasons, they should be properly
informative.
[116]
In
Phambili
Fisheries
the
Supreme Court of Appeal explained:
“
[T]he
decision-maker [must] explain his decision in a way which will enable
a person aggrieved to say, in effect: ‘Even though
I may not
agree with it, I now understand why the decision went against me.
I am now in a position to decide whether that
decision has involved
an unwarranted finding of fact, or an error of law, which is worth
challenging.’
This
requires that the decision-maker should set out his understanding of
the relevant law, any findings of fact on which his conclusions
depend (especially if those facts have been in dispute), and the
reasoning processes which led him to those conclusions.
He
should do so in clear and unambiguous language, not in vague
generalities or the formal language of legislation.
The
appropriate length of the statement covering such matters will depend
upon considerations such as the nature and importance
of the
decision, its complexity and the time available to formulate the
statement.”
[117]
[106]
The need for a decision-maker to give adequate
reasons is particularly important when the decision was based
primarily on race or
any other attribute listed in section 9(3).
Knowing why the decision was adverse enables the aggrieved person to
understand
– an understanding that encourages participation in
rebuilding our divided country.
[107]
Here,
as the Supreme Court of Appeal noted,
[118]
the paucity of the National Commissioner’s reasons makes his
decision, at best, opaque. While the National Commissioner
may
in fact have taken all relevant considerations into account and
balanced them in a fair way, this was not, on the face of it,
evident
from the reasons he put forward for denying Ms Barnard the promotion
she sought. We consider the National Commissioner’s
stated reasons incomplete in two respects. The first relates to
what he said about service delivery. The second relates
to
whether promoting Ms Barnard would have addressed
representivity.
[108]
As
a public service provider, the SAPS is required to prioritise service
delivery. The Constitution requires the SAPS to carry
out its
functions with special regard to the efficiency and quality of its
service.
[119]
Its Plan
recognised this.
[120]
And the importance of service delivery was reflected in the
letter
of 7 June 2006 that the National Commissioner addressed to all
provincial commissioners, divisional commissioners and deputy
national commissioners. This letter stated expressly that
interviewing panels should focus on the appointment of personnel
who
would enhance service delivery.
[121]
This indicates how important that goal was generally within the
SAPS.
The
Act does not require the SAPS in every case to prefer service
delivery over all other considerations. But it does require
it
to justify decisions that do not enhance service delivery.
[109]
The National Commissioner decided here that not
appointing Ms Barnard would not adversely affect service delivery.
But the
Divisional Panel thought the opposite. It recommended
Ms Barnard’s promotion “in the interest of service
delivery”.
The National Commissioner chose to prioritise
representivity over the increase in service delivery that Ms
Barnard’s appointment
would have achieved. This was an
operational decision. It was one the National Commissioner was
well placed to
make, and the Court owes his hands-on expertise
some measure of deference. But that does not relieve him of his
duty to justify
the factors he took into account in reaching his
conclusion.
[110]
If
a decision-maker does not justify how he or she balances the
important considerations of representivity and service delivery,
remedial measures will suffer an invidious gloss. A
decision-maker could prize representivity over service delivery
without
sufficient regard to the specific facts of a case. This
would suggest that representivity is always more important than the
quality of service provided by a public body. But this is a
false choice. There is no evidence that we must sacrifice
the
quality of our public bodies to achieve the important goals of
representivity and to redress past disadvantage. Persons
disadvantaged by our history are just as capable and talented as Ms
Barnard. This observation is especially true given the
Act’s
definition of “suitably qualified” as someone “with
the capacity to acquire, within a reasonable
time, the ability to do
the job”.
[122]
If the widely used term “affirmative action” means
anything, it recognises that we may have to make an extra
effort to
find and support those capable persons, who may not brandish the
traditional signs of successful candidates.
[123]
But if decision-makers continually disregard talented candidates
while searching for capable individuals from disadvantaged
backgrounds, it creates the false impression that the candidates who
are eventually chosen are not as capable as those who are
rejected.
This impression injures the dignity not only of the candidates who
are rejected, but also of the candidates who
are appointed.
[111]
To avoid this, a clear explanation is necessary.
The decision-maker must explain how he or she balanced the concerns
of both
representivity and service delivery with regard to the facts
of the specific case.
[112]
The Divisional Panel that recommended Ms Barnard
provided an example of precisely such an explanation. It
recognised that
appointing her would exacerbate the
over-representation of white women at salary level 9. But it
found that this consideration
should yield to the important gains in
service delivery that Ms Barnard’s promotion would enable,
especially as Ms Barnard
had by then applied twice for the same
position and been consistently rated the most talented and capable
candidate.
[113]
The National Commissioner had the power to
disagree with the Divisional Panel, for the ultimate decision was his
to make.
But he was required to explain his disagreement and
give reasons why he chose representivity over service delivery.
His failure
to do so provides some evidence that he was not
implementing the Plan fairly when he declined to promote Ms Barnard.
[114]
We
are hesitant about accepting the National Commissioner’s
reasons because of a second consideration, namely his use of
representivity as the primary motivating factor. Ms Barnard is
a white woman and her appointment to salary level 9 would have
exacerbated over-representation at that level. But Ms Barnard
is both white and a woman. We must be judicious about
grouping
these elements of identity together. As a white person, Ms
Barnard is a member of a group that has been historically
advantaged. But as a woman, Ms Barnard is a member of a group
that has faced a history of discrimination. As explained
above,
women are one of the Act’s designated groups.
[124]
The Act requires employers to implement affirmative action measures
to redress disadvantage to women.
[125]
And the National Commissioner must interpret the Plan harmoniously
with the Act.
[115]
But
were women under-represented in the police force? According to
the equity targets provided by the Plan, there were 122
employees in
this branch of the SAPS at the time Ms Barnard applied for
promotion. Of these, 61 were men and 61 were women
– an
even split. But there was a striking disparity in salaries.
The National Commissioner is required to approve
appointments to the
highest salary positions in that branch, namely levels 8 to 12.
[126]
At these levels, there were 53 male employees but only 25 female
employees. There was thus a substantial pay gap between
women
and men in the branch where Ms Barnard worked. Her promotion to
level 9 would have alleviated this imbalance, and would
also have
addressed gender representivity
[127]
at that level, where 13 women were employed compared to 16 men.
[116]
So Ms Barnard’s appointment could have
ameliorated one representivity problem even if it would have
exacerbated another.
Ms Barnard’s case thus demonstrates
the intersection of different categories of advantage and
disadvantage. However,
the National Commissioner was not
obliged to promote her simply because there was a salary gap between
women and men. He
was entitled to prefer racial representivity
over gender representivity, provided he had a justification for that
decision.
[117]
In other words, it is not necessarily an injury to
dignity to view a person only through the lens of one ground listed
in section
9(3), provided the reason for doing so is to redress
historical inequality. But this becomes dissonant if we ascribe
only
one identity at the cost of seeing the multitudes that make up
each individual.
[118]
The courts should give deference where decisions
are made in a way that balances the mandate to achieve representivity
with a full
appreciation of the individual. But the courts must
insist that the decision-maker has, at a minimum, taken into account
the relevant aspects of a candidate’s identity and the ways in
which he or she could advance representivity in a manner consistent
with the Act.
[119]
This
is so because section 9 of the Constitution and section 15(4) of the
Act mandate a holistic approach to an employment equity
plan, one
that accords with the Act’s requirements and objectives.
To do otherwise would be to sanction rigidity that
would convert the
numerical targets specified in the Plan into impermissible
quotas.
[128]
For
instance, an overly rigid interpretation of the numerical targets
could have adverse effects for Indian or Coloured people.
The
Plan’s ideal target for Indian women is 0.4 employees, or
fewer, at every salary level. An overly rigid approach
to the
Plan would require that the National Commissioner never approve the
appointment of an Indian woman. That would not
only be absurd,
it would be a bitter irony because Indian women have also suffered
past discrimination.
[120]
Demanding that the National Commissioner consider
the numerical targets holistically and in the light of the statute’s
requirements
is critical. Because women are included as a
designated group, the National Commissioner is required to consider
how a recommended
candidate would address gender representivity as
well as racial representivity. His failure to even mention that
Ms Barnard
was a member of a designated group is further evidence
that he was not implementing the Plan in a fair manner.
[121]
So the National Commissioner’s stated
reasons, on their own, provide sparse evidence that he implemented
the Plan fairly.
Despite this, we conclude the National
Commissioner’s decision not to promote Ms Barnard was fair.
Our reason is this:
neither the National Commissioner’s failure
to address adequately the question of service delivery, nor his
failure to mention
gender representivity, is on the facts before us a
sufficiently compelling indication of unfairness.
[122]
As
set out in the main judgment, the National Commissioner explained
that the division was being restructured and that the post
did not
need to be filled until restructuring was complete.
[129]
Ms Barnard presented no evidence to cast doubt upon this. It is
thus not clear that her promotion would have achieved
the
service-delivery gains the Divisional Commissioner sought.
Similarly, the gender discrepancy in the branch of the SAPS
that
employed Ms Barnard was not nearly as acute at salary level 9 as
it was at other upper-level positions. This means
the National
Commissioner could fairly have determined that racial representivity
was a more urgent problem at salary level 9 than
gender
representivity. Moreover, Ms Barnard never pressed an argument
about gender. Nor did she challenge the Plan
or the racial and
gender targets it embodied. In the absence of proper challenge
and argument, the Court cannot undercut
the decision-maker’s
stated reasons on this point.
[123]
We conclude that the facts show that the National
Commissioner’s decision passes the fairness standard.
While we find
this a close call, what has proved determinative to us
is the pronounced over-representation of white women at the salary
level
to which Ms Barnard was applying. This was not just by
one or two, but by many. There was thus greater justification
for prioritising racial representivity over other considerations.
Similarly, Ms Barnard’s eventual promotion to
Lieutenant Colonel
shows that the National Commissioner’s
decision not to promote her to salary level 9 in this instance did
not constitute
an absolute bar to her continued advancement in the
SAPS. Both of these facts provide a basis for concluding that
the National
Commissioner was interpreting the numerical targets as
permissible goals and not as impermissible quotas. The National
Commissioner
was therefore applying the Plan in a fair manner.
[124]
We thus agree with the principled approach set out
in the main judgment, and, ultimately, with the outcome it reaches.
VAN
DER WESTHUIZEN J:
Introduction
[125]
“
It
is the fate of this generation . . . to live with a struggle we did
not start, in a world we did not make.”
[130]
These words of former American President John F Kennedy
capture something of the responsibility to deal with the
consequences
of the past, falling even on those who played no part in it.
History is inclined to target the innocent for
retribution and
restoration following on gross injustice committed by those who
thrived on the systematic violation of the human
dignity of others.
This often seems unfair. Clichés like “two wrongs
don’t make a right” express
the perceived unfairness.
[126]
A generation of Germans, too young to participate
in the atrocities of Nazism and the Second World War or not yet born
at the time,
had to suffer not only the devastation of their country,
but the understandable resentment of and ongoing negative
stereotyping
by the world. Many waited decades before they
dared to ask their parents why they had indulged in evil, or allowed
it to
happen. Other nations have also had to deal with the
consequences of unjust wars they waged and destruction they caused in
order to gain temporary material and other benefits.
[127]
The
United States of America has implemented “affirmative action”
in an attempt to achieve racial equality after a long
history of
slavery and discrimination.
[131]
It has been the topic of court challenges and ongoing emotive debates
cutting through the core of the American dream.
In these,
alleged disadvantages to society – not only those required to
forego opportunities in the process but also those
supposed to
benefit – have been put forward. On occasion this
led to the abandonment of such measures.
[132]
Professor
Stephen Carter pointed out the difficulties of an honest debate about
racial preferences.
[133]
White people who criticised affirmative action risked being called
racists and black people who did the same were accused
of treason.
After stating “I got into law school because I am black”,
he explained his frustrations as an “affirmative
action baby”
and argued that affirmative action had failed to promote equality and
allowed the United States of America to
escape inexpensively from its
moral obligation to undo the legacy of slavery.
[134]
Professor Carter was heavily criticised for his views. This is
but one example of the complexity and sensitivity of
the debate.
[128]
So
it may be a historical fact that the innocent often have to account
for sins committed before they were born or able to act
independently. However, “innocence” of conduct by
one’s ancestors or predecessors that in hindsight are
widely
recognised as morally repulsive, does not mean that the innocent have
not over time benefitted from injustice. One
can benefit from a
wrong without being guilty of wrongdoing. Unjustified
enrichment as a cause of action is an example.
[135]
Nor does it mean that measures to restructure a society, heal a
country and promote dignity and equality are not necessary.
Several societies have struggled with efforts to overcome past
discrimination and injustice. Others have neglected to do
so
and allowed people to be separated further from each other and
painful cleavages to deepen.
[129]
Over
centuries millions of South Africans suffered because of gross
discrimination and the denial of the fullness of their human
dignity. This happened especially on the basis of race, colour
and ethnicity, but also gender, sex, marital status, sexual
orientation, disability and other grounds. “We, the
people of South Africa, [r]ecognise the injustices of our
past”.
[136]
We
“[b]elieve that South Africa belongs to all who live in it,
united in our diversity”. Therefore we adopted
a
Constitution to “[h]eal the divisions of the past and establish
a society based on democratic values, social justice and
fundamental
human rights” and to “[i]mprove the quality of life of
all citizens and thus free the potential of each
person”.
It is founded on values including human dignity, the achievement of
equality, non-racialism and non sexism.
[137]
And it recognises fundamental rights in the Bill of Rights. The
first is equality;
[138]
the
next is human dignity.
[139]
[130]
Our
challenge is to understand and apply these provisions as an
integrated project to achieve equality, within the context of the
rest of the Constitution, our history and the future of which we
dream. Discrimination may be motivated by several urges,
from
simple greed to the need for identity, or inferiority or superiority
complexes. But ultimately it boils down to the
denial of human
dignity, the first mentioned of the founding values of the
Constitution.
[140]
[131]
In this instance Ms Renate Mariette Barnard –
perhaps like others disfavoured by section 9(2) measures – has
been understandably
frustrated and disappointed because of the impact
on her of an attempt to achieve equality; this despite her proven
skill and experience
and her high score at two interviews. She
may well be innocent of participating in the apartheid past. As
a member
of a racially privileged group she might have benefited from
it though. She has shown a commendable understanding of the
need for and importance of restitutionary measures. How do her
positive attributes sit with the constitutional responsibility
to
heal the divisions of the past and promote the achievement of
equality? Is she the victim of unfair discrimination?
Or
of irrational decision making? Was her dignity diminished?
If so, is this justified in pursuit of the aim of equality
to restore
some of the dignity of those humiliated by apartheid? Or is she
simply unfortunate to fall on the wrong side of
one of the
distinctions the law often has to make?
[132]
I agree with the outcome of the main judgment by
Moseneke ACJ and of the other judgments. With the reasoning of
Moseneke ACJ
about the aim and meaning of section 9 and the
legislation and policies resulting from it, I also agree. I
rely on the main
judgment’s exposition of the facts and history
in this matter. In order to give my somewhat different
reasoning on
a few aspects, I write separately.
[133]
The
main judgment finds that an enquiry into the decision of the National
Commissioner is not properly before us because Ms Barnard’s
case is not a bid to review and set aside the decision of the
National Commissioner.
[141]
I do not agree. She brought a complaint to Court, namely that a
decision taken by her employer in implementing its
Employment Equity
Plan, pursuant to the Act and section 9(2)
[142]
of the Constitution, was not lawful. In order to determine
whether it was lawful or not, this judgment examines whether the
policy and its implementation meet the standard set out by this Court
in
Van
Heerden
,
[143]
including whether they promote equality. Then it goes further
to determine whether the implementation impacts on any other
constitutional rights, in particular the right to human dignity.
I offer some thoughts on human dignity and propose an analysis
in so
far as rights may compete in their exercise or enforcement. The
interest of the public in efficient service delivery
by SAPS is then
also considered.
Section
9
[134]
Section 9(1) of the Constitution recognises
equality before the law. Section 9(2) then states:
“
Equality
includes the full and equal enjoyment of all rights and freedoms.
To promote the achievement of equality, legislative
and other
measures designed to protect or advance persons, or categories of
persons, disadvantaged by unfair discrimination may
be taken.”
Subsections
(3), (4) and (5) prohibit unfair discrimination:
“
(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.”
[135]
The measures provided for in section 9(2) are
aimed neither at punishment of the previously advantaged, nor at
retribution or revenge.
They do not represent a settlement or
compromise between races or other groups; and they are certainly not
intended to foster discrimination
and division. The aim is
stated in section 9(2): to promote the achievement of equality, which
includes the full and equal
enjoyment of all rights and freedoms, in
view of past unfair discrimination. Subsection (2) addresses
the wrongs of the past.
Subsections (3), (4) and (5) prohibit
unfair discrimination to prevent the proverbial second wrong that
would not make a right.
This is the constitutional concept of
equality on which we as a nation agreed. In view of our
history, equality cannot merely
be a formal requirement – it
has to have substance.
[136]
Understood within the context of a holistic
reading of section 9, the measures provided for in section 9(2) are
not exceptions to
the right to equality. They form part of it.
This Court stated in
Van Heerden
:
“
[Restitutionary
measures] are not in themselves a deviation from or invasive of, the
right to equality guaranteed by the Constitution.
. . . [W]hat
is clear is that our Constitution and in particular section 9
thereof, read as a whole, embraces for good reasons
a substantive
conception of equality inclusive of measures to redress existing
inequality. Absent a positive commitment progressively
to
eradicate socially constructed barriers to equality and to root out
systematic or institutionalised under privilege, the
constitutional promise of equality before the law and its equal
protection and benefit must, in the context of our country, ring
hollow.”
[144]
[137]
The
appropriate assumption under our constitutional framework is that
restitutionary or affirmative measures should be welcomed
rather than
viewed with suspicion. They must be understood as
equality-driven mechanisms in their own right, rather than
carve-outs
from what is discriminatory.
[145]
In
Stoman
it
was held that—
“
the
recognition of substantive equality means . . . that equality is more
than mere non discrimination. When a society,
and perhaps
the particular role players in a certain situation, come from a long
history of discrimination, which took place individually,
systemically and systematically, it cannot simply be assumed that
people are in equal positions and that measures distinguishing
between them amount to unfair discrimination.”
[146]
[138]
Affirmative
measures are critical to realising the constitutional promise of
substantive equality.
[147]
The structure and wording of section 9 indicate that measures meeting
the requirements of section 9(2) cannot be unfair discrimination
under section 9(3) to (5).
[148]
[139]
Race continues to be an important component of
many restitutionary measures. However, previous disadvantage
because of unfair
discrimination is not restricted to racial groups.
The Constitution clearly recognises that unfair discrimination, based
on a range of grounds including social origin, disability, culture,
language and birth, is unacceptable. It envisages measures
to
protect those disadvantaged by unfair discrimination on any of these
grounds. In this matter race is principally at issue.
[140]
Affirmative
measures and their implementation are not immune from scrutiny,
[149]
as is clear from the main judgment. The Constitution states
that the measures must be designed to protect or advance persons,
or
categories of persons, disadvantaged by unfair discrimination.
Schemes and conduct based on race, which arbitrarily benefit
some and
violate the rights of others, can never qualify as a legitimate
measure under section 9(2).
Testing
Rationality
[141]
On
the facts of this case, the National Commissioner’s decision
could in principle possibly be subject to review on the basis
of
rationality. This follows as a natural consequence of the
principle of legality and the rule of law, because it can be
argued
that the decision amounts to an exercise of public power. It
seems that the nature of the National Commissioner’s
position
and the decision’s potential effects make it public in nature.
Ms Barnard did not bring this case as a legality
review though.
Chapter III of the Act applies to any designated employer.
[150]
Therefore we are required to evaluate the National Commissioner’s
decision as if it were made by any private or public
employer.
Van
Heerden
[142]
In
Van
Heerden
this
Court established a three-pronged test to determine whether an
affirmative or restitutionary measure passes constitutional
muster.
[151]
The
question is whether it—
(a)
targets persons or categories of persons who have
been disadvantaged by unfair discrimination;
(b)
is designed to protect or advance such persons or
categories of persons; and
(c)
promotes the achievement of equality.
[143]
The
first two prongs test whether the measure itself, in its design, is
rationally connected to the end it aims to achieve,
[152]
in accordance with the wording of section 9(2) which provides
for measures designed to protect or advance persons, or categories
of
persons, disadvantaged by unfair discrimination
.
The
focus of the third prong is somewhat different. It is on the
measure, but also on its implementation. The word “achievement”
implies some effect or impact. This could hardly be tested
without contemplating some action taken in terms of the measure.
Van
Heerden
thus
acknowledges some distinction between a measure and its
implementation. A decision or other action taken in terms of
an
affirmative measure, as well as the measure itself, must be
constitutionally compliant.
[144]
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.
[145]
Something
more is needed though when a
measure
as
well as its
implementation
are
evaluated. A measure might be legitimate in form, but its
application may be unlawful. The main judgment recognises
this
and states that, “a validly adopted Employment Equity Plan must
be put to use lawfully”.
[153]
Section 15(4) of the Act also focuses some attention on
decisions
concerning
an employment policy or practice. Once the measure is found to
fall within section 9(2) and is thus not unfair
discrimination under
section 9(3), the effect and impact of its implementation must be
evaluated.
Is
equality promoted?
[146]
Because the third
Van
Heerden
prong – that the measure
must promote the achievement of equality – requires an
appreciation of the effect and impact
of the measure, more than mere
abstract rationality testing is required. The impact of a
measure is ascertained by looking
at how it is implemented.
[147]
Van Heerden
stated:
“
[A]
measure should not constitute an abuse of power or impose such a
substantial and undue harm on those excluded from its benefits
that
our long-term constitutional goal would be threatened.”
[154]
[148]
This
enquiry should go beyond mere abuse of power and undue harm. It
requires a judgment – within the ambit of the right
to and
value of equality – of whether the measure “serves to
advance or retard the equal enjoyment in practice of the
rights and
freedoms that are promised by the Constitution but have not already
been achieved”.
[155]
This must take into account whether the measure undermines the goal
of section 9 to promote the long-term vision of a society
based on
non-racialism and non-sexism and must be alive to shifting
circumstances and the distribution of privilege and under-privilege
in society.
[149]
Before
focusing specifically on the facts of this case, it must be pointed
out that equality can certainly mean more than representivity.
[156]
Affirmative measures seek to address the fact that some candidates
were not afforded the same opportunities as their peers,
because of
past unfair discrimination on various grounds. By focusing on
representivity only, a measure’s implementation
may thwart
other equality concerns. For example, if a population group
makes up 2 or 3 percent of the national demographic,
then, in an
environment with few employees, the numerical target for the group
would be very small or even non-existent.
If a candidate from
this group is not appointed because the small target has already been
met, this may unjustly ignore the hardships
and disadvantage faced by
the candidate or category of persons, not to mention the candidate’s
possible qualifications, experience
and ability.
[150]
This is not the case here, though. Did the
National Commissioner’s decision promote the achievement of
racial equality?
The necessary corollary of the duty to promote
racial equality must be, at the very least, the duty to avoid
aggravating inequality.
Although equality can manifest in
various forms, in the context of this case it takes the form of
representivity. By appointing
Ms Barnard, her designated group
would have been significantly over-represented and her appointment
would have aggravated racial
inequality. Accordingly, the
decision not to appoint Ms Barnard fulfilled this corollary
duty.
[151]
But what of the decision not to appoint anyone,
including Captain Ledwaba and Captain Mogadima? On the face of
it, their appointment
would have increased racial representivity.
The National Commissioner’s reasons for their non-appointment
are not before
us and other legitimate considerations, beyond their
obvious ability to enhance racial representivity, may have played
into his
decision. Further, Ms Barnard’s claim does
not arise from a decision about another candidate, but from the
decision
not to appoint her. The decision not to appoint other
candidates is of little relevance for the lawfulness of the decision
on her appointment.
[152]
Was the National Commissioner’s decision not
to appoint Ms Barnard contrary to the long-term, equality-related
goal of a non-sexist
society? Measures under section 9(2) do
not relate to race only. She is a woman and therefore a member
of a group that
suffered unfair discrimination and in many respects
still does. Appointing a member of this group may well enhance
the achievement
of equality.
[153]
Privilege
often manifests in an individual in a multiplicity of different,
intersecting and mutually constructive or destructive
ways. One
must account for interactions between the different aspects of
identity and privilege when reviewing whether an
affirmative measure
was acceptably implemented. Because Ms Barnard’s traits
sit at the intersection of privileged and
under-privileged
identities, she might suffer harm in unique ways compared to members
of other groups, designated or not.
[157]
A woman in her position has probably not suffered the unfair
discrimination that black women did, but also not enjoyed the
privilege of white men. Her position and history of privilege
are undeniably different from that of a black man and may require
more promotion in some contexts and less in others.
[154]
The Act recognises this by leaving open how an
affirmative policy should promote each designated group and does not
mandate that
they are all promoted equally in every context.
SAPS acknowledges this unique intersectionality by identifying white
women
as a designated group which must be advanced in terms of their
Employment Equity Plan and in accordance with the Act. The
Employment Equity Plan – within the latitude permitted by the
Employment Equity Act – uses
targets to denote the degree of
promotion it considers desirable for each group in different income
levels and areas of speciality.
[155]
Women of all races have not been adequately
represented in traditionally male dominated sectors such as law
enforcement.
But the fact that Ms Barnard belongs to a
designated group that is promoted and advanced in terms of SAPS’s
Employment Equity
Plan and was already over-represented at salary
level 9, in this case adequately accounts for the interaction between
her privilege
as a white person and her under-privilege as a woman.
The decision not to appoint her cannot be said to be contrary to the
long-term goal of a non-sexist society.
[156]
Therefore the implementation of the measure
satisfies the third leg of the
Van Heerden
enquiry in that it promotes the
achievement of equality. However, the question whether the
implementation passes constitutional
muster also has to take into
account how it may affect other constitutional rights and values.
A separate enquiry –
one which does not use only equality as a
barometer – needs to be undertaken. What barometer would
be appropriate to
test the impact of the implementation?
Fairness
[157]
The judgment by my colleagues Cameron J, Froneman
J and Majiedt AJ proposes fairness as a test. This may be a
possibility.
But I am somewhat sceptical of a fairness standard
when dealing with the constitutional validity of the implementation
of
section 9(2)
measures.
[158]
If
“fairness” here relates to the unfair discrimination
prohibition in
section 9(3)
, relying on it with regard to affirmative
measures under
section 9(2)
may risk internal inconsistency.
Section 9(3)
deals with differentiation which amounts to unfair
discrimination. By definition, measures under
section 9(2)
do
not amount to unfair discrimination. I understand that a
fair
measure
may
theoretically be
implemented
unfairly
.
However, it may in practice seem incoherent to subject the
implementation of a
section 9(2)
measure to
section 9(3)
fairness
considerations. Once a measure has withstood the
section 9(2)
Van
Heerden
enquiry
and is found not to be unfair, another investigation into its
fairness, informed by
section 9(3)
considerations, may not always
make practical sense.
[158]
[159]
Fairness is of course not only a
section 9(3)
concept. The term is used in a wider, more general sense.
If it means something more general, I would not be enthusiastic
about
it as a standard in this context. It is vague. Life is
not always “fair” and neither is the law.
It often
imposes restrictions which might seem “unfair”, at least
in its impact on the individuals involved.
The requirement that
a person be at least 18 years old to hold a driver’s licence
may well be unfair to 17 year-old skilful
drivers; but practical
realities often require the law to draw a line based on reasonable
general assumptions.
[160]
The
Van
Heerden
test
has been criticised for failing to incorporate a fairness
standard.
[159]
It
should be considered as a threshold for the constitutional validity
of affirmative measures and the third prong has to
be fleshed out
with regard to the circumstances in which it applies. But
courts would rightly be reluctant to second guess
policies that
clear the
Van
Heerden
prongs.
[160]
Van
Heerden
considered
the concept of strict scrutiny to be an inappropriately high standard
for review of an affirmative policy. We should
indeed not
subject the measures to an unrealistically high standard of review
which would thwart a constitutional objective.
Measuring
impact
[161]
Courts
are generally reluctant to presume that provisions in the
Constitution operate in tension and so try to construe them
harmoniously.
[161]
This does not mean that we may overlook the impact of one right on
other rights in specific situations, or that we must interpret
rights
narrowly from the outset to avoid possible tension.
Constitutional provisions – including those protecting rights
–
have to be interpreted within the context of the Constitution as a
whole. No provision may be interpreted in isolation
and no
right protected and enforced without regard to other rights.
Especially the exercise of one constitutional right may
often have to
be balanced against another. Courts are regularly called upon
to do so
[162]
thoughtfully
and candidly.
[163]
To
a considerable extent, this is what constitutional adjudication is
about.
[162]
No
right is absolute. Sections 7(3) and 36 of the
Constitution
[164]
say that
rights are subject to limitations contained in the Bill of Rights or
in other provisions of the Constitution. Section
36 is not
directly applicable here, because it deals with the limitation of
rights by “law of general application”.
Whereas the
Act is law of general application, the implementation of an
affirmative measure by the National Commissioner’s
decision is
not. We are not dealing here with the limitation of a right
resulting in a finding that the limitation is justifiable
or not.
But
why
do
rights sometimes have to be limited? One reason is that the law
often limits a right in order to protect the exercise of
other
rights.
[165]
At its
heart a limitation analysis is an acknowledgment that constitutional
democracies are faced – and must wrestle
– with complex
competing interests, rights and values.
[163]
The Constitution recognises this. It
requires that the limitation of a right must be “reasonable and
justifiable in
an open and democratic society based on human dignity,
equality and freedom”. A range of factors must be taken
into
account in order to determine whether it is. These include
the importance of the purpose of the limitation, the nature and
extent of the limitation, the relation between the limitation and its
purpose, and whether the purpose could be achieved by means
with a
“less restrictive” impact on the right.
[164]
Even
though we are not dealing here with the limitation of a right by a
law of general application, this formula helps with the
task of
measuring the impact of the enforcement of one right on another.
Instead of interpreting the ambit and nature of
a right restrictively
so as to mask the reality that courts are compelled to make difficult
choices, the appropriate route is often
to interpret rights
holistically and robustly and then consider whether intrusions into
those rights are reasonable and justifiable
in a democracy.
Amongst the factors to be considered is whether the impact of the
implementation of a section 9(2) measure
on other rights is more
severe than necessary to achieve their purpose. This follows
from the mention of the extent of the
limitation and less restrictive
means in section 36. No single consideration is determinative;
rather, “the Court must
engage in a balancing exercise and
arrive at a global judgment on proportionality and not adhere
mechanically to a sequential check list”.
[166]
[165]
This
Court has found that a proportionality analysis, while not the only
appropriate method, is often well-placed for navigating
the contested
terrain of competing rights or values.
[167]
This concept is embedded in and consistent with the Bill of Rights
and its spirit, purport and objects.
[168]
Sachs J stated in a concurring judgment in
Van
Heerden
:
“
[W]here
different constitutionally protected interests are involved, it is
prudent to . . . opt for context-based
proportional
interrelationships, balanced and weighed according to the fundamental
constitutional values called into play by the
situation.”
[169]
[166]
This
not only involves balancing in the abstract, but requires a
case-sensitive and concrete assessment of the competing rights.
[170]
A right or value should not be compromised more than necessary,
in
the context of a constitutional state founded on dignity, equality
and freedom in which government has positive duties to promote
and
uphold such values.
[171]
[167]
The implementation of an affirmative measure may
impact on any number of rights and interests, both of the individuals
concerned
and of the public. The facts of each case will
determine whether it does so. In the context of this case, the
effect
on the dignity of Ms Barnard as a human being has to be
considered. Later I also deal with the significance of
efficient
service delivery in the balancing of rights, interests and
constitutional demands.
Dignity
[168]
Given
that affirmative measures will generally emphasise the relative
importance of a particular characteristic of a candidate over
other
attributes, their implementation has the potential to affect the
right to human dignity of people, individually or as members
of a
group. Indeed, the Act mentions the “equal dignity and
respect of all people”.
[172]
In
Van
Heerden
Moseneke
J stated that the imposition of “such [a] substantial and undue
harm on those excluded from [the measure’s
benefits] that our
long-term constitutional goal would be threatened” is
unacceptable.
[173]
[169]
This is not to say that dignity will always be
affected by the implementation of the measure. The rights to –
and values
of – equality and dignity are of course
interdependent and complementary. But they may sometimes
compete, as far as
the scope of their implementation or enforcement
is concerned. Aspects of a person’s right to dignity may
sometimes
have to yield to the importance of promoting the full
equality our Constitution envisages. Other times, the impact of
equality-driven
measures with laudable aims may not be justifiable in
view of severe damage to human dignity. But we must first
explore the
meaning and scope of human dignity.
[170]
Ms
Barnard felt frustrated, disappointed and indeed wronged by the
implementation of the affirmative measure. Thus she approached
the courts. However, an exceedingly narrow and subjective view
of dignity by overly focusing on how a litigant felt about
impugned
law or conduct is not, without more, appropriate in this
context.
[174]
We are
not dealing with a common-law civil claim based on the infringement
of
dignitas
,
or self-esteem. Dignity has a more objective and broader
dimension. She also stated during cross-examination that
it was
hard to remain positive. If this means that she felt despondent
and as if the Constitution and the law did not treat
her as a fully
recognised member of South African society, this aspect would require
attention. The constitutional founding
value and aim of a
democracy founded on human dignity, equality, non racialism and
non-sexism
[175]
would not
allow for exclusion.
[171]
Was Ms Barnard treated as a mere means to reach an
end, on the basis of her race only? As an individual, a woman
and a public
servant, she is also a member of a society deeply
scarred by past and present inequality. Did the implementation
of the measure
impermissibly undermine her autonomy, including her
ability to pursue her career goals?
[172]
Philosophical
thinking on human dignity by, for example, Immanuel Kant has
influenced this Court’s jurisprudence, including
the emphasis
that “human worth is impaired when persons are treated, not as
ends in themselves, but as mere objects”.
[176]
Human dignity is not only concerned with an individual’s
understanding of her self worth, but more broadly affirms
the
inherent – and equal – worth of all human beings.
[177]
The recognition of this right represents a break from a past which
systematically denied the dignity of most South Africans.
Because the right to human dignity affirms the intrinsic worth of
every person, it is foundational to several other rights in the
Bill
of Rights.
[178]
The
right to and value of dignity therefore also inform constitutional
interpretation and adjudication at multiple levels.
[179]
[173]
The
value of the individual is safeguarded in our jurisprudence.
[180]
Every person should be treated as an end in herself and not as
a means to an end only.
[181]
This is what blunt utilitarianism would allow. The concept of
dignity also concerns an individual’s sense of
self-esteem,
[182]
and
encompasses the idea that one is permitted to develop one’s
talents optimally.
[183]
[174]
An
atomistic approach to individuals, self-worth and identity is not
appropriate. This Court has recognised that we are not
islands
unto ourselves.
[184]
The individual, as the bearer of the right to dignity, should not be
understood as an isolated and unencumbered being.
[185]
Dignity contains individualistic as well as collective
impulses.
[186]
Its
collectivist attributes, including that we are “social beings
whose humanity is expressed through . . . relationships
with
others”,
[187]
find
resonance in the South African idea of
Ubuntu
,
which foregrounds “interdependence of the members of a
community”.
[188]
[175]
In
the context of socio-economic rights, this Court has affirmed that
the responsibility for the difficulties of poverty is shared
equally
as a community because “wealthier members of the community view
the minimal well-being of the poor as connected with
their well-being
and the well-being of the community as a whole”.
[189]
This would also hold in the context of substantive equality.
First, the way in which individuals interact with social
groups and
society generally has a direct bearing on their dignity.
[190]
This is true for members of both advantaged and disadvantaged
groups. Second, this idea also gives effect to another
Kantian
way of understanding dignity – that it “asks us to lay
down for ourselves a law that embraces every other individual
in a
manner that extends beyond the interests of our more parochial
selves”.
[191]
Measures to further substantive equality recognise this and embrace
the importance of advancing societal members’ welfare,
material
position and interests. The dignity of all South Africans is
augmented by the fact that the Constitution is the
foundation of a
society that takes seriously its duties to promote equality and
respect for the worth of all. Because affirmative
substantive
equality measures are one way in which these duties are given effect,
these measures can enhance the dignity of individuals,
even those who
may be adversely affected by them.
[176]
Dignity
is connected to equality.
[192]
This Court has held that unfair discrimination is constitutionally
unacceptable, because it involves treating people “differently
in a way which impairs their fundamental dignity as human beings, who
are inherently equal in dignity”.
[193]
We care about equality – both formal and substantive –
because we recognise the equal and inherent worth of all
human
beings.
[194]
Apartheid
was more than discrimination – it was the systemic denial of
human dignity.
[177]
So, to what extent was Ms Barnard’s right to
dignity impacted? Although our conception of dignity includes
collectivist
notions, it recognises the worth of a person as an
individual with distinct aspirations. Her race was the
determinative factor
in the National Commissioner’s decision
not to promote her. Her attributes, experience and attitude
were eclipsed by
considerations of race. Her value as a human
being in an employment environment was, to some extent, undermined.
Whether
this is reasonably and justifiably outweighed by the
importance of promoting full equality must follow from measuring the
impact
of the National Commissioner’s decision on Ms Barnard.
[178]
In
this case there is no single victim of past unfair discrimination
whose position can be compared to that of Ms Barnard.
Her
dignity is not to be balanced against that of another individual.
The dignity of millions of black people who were victims
of
apartheid’s discrimination and who are still suffering its
consequences can also not be weighed against the dignity of
one white
woman. The calculation required to restore the dignity of many
after decades of unfair discrimination and the possible
cost to the
interests of individuals like Ms Barnard, was done when the
Constitution was agreed on. Apartheid was a violation
of human
dignity, indeed a crime against humanity.
[195]
That is why section 9(2) is in the Constitution. Measures to
achieve equality are supposed to restore dignity.
But their
practical implementation could also impact on the human dignity of
individuals. It is that impact we have to consider.
[179]
If we move away from the facts of this matter, the
process of testing the impact of the implementation of an affirmative
measure
on the human dignity of an individual may become clearer.
The aim may not be to promote previously disadvantaged race groups,
but instead to advance another category of people designated under
the Act, for example, people with disabilities. If the
implementation of the measure promotes a disabled black woman at the
cost of an able-bodied black woman to the extent of blocking
her
career development for an unduly long time, her dignity cannot be
weighed against that of many disabled people previously disadvantaged
by unfair discrimination. But her human dignity may well be
impacted on disproportionally. As indicated earlier, the
grounds on which unfair discrimination happens often intersect.
This intersection may present difficulties.
[180]
Was
the impact on Ms Barnard’s dignity reasonable and justifiable
in light of the goal of substantive equality? I consider
two
factors. First, she treated as a mere means to achieve an end?
Did the decision reduce her to a member of an underclass
to the
extent that her place in society and in the Constitution is
denigrated? Even the perception of this may threaten the
pursuit of our constitutional goal
of
a society in which everyone, regardless of their differences, is
equally valued and at home.
[196]
Second, does the measure’s implementation amount to an absolute
barrier to her advancement? If a measure is used
to obliterate
a person’s chances at progressing in her chosen career, it
would not pass constitutional muster.
[197]
It would constitute an impermissible barrier to an individual’s
ability to “develop [her] humanity [and] ‘humanness’
to the full extent of its potential”.
[198]
The Act indicates a cognisance of the dangers of establishing “an
absolute barrier to the prospective or continued
employment or
advancement of people”.
[199]
[181]
Neither is present in this case. Ms Barnard
failed to secure appointment because there was over-representation of
people from
her designated group. Had this over-representation
not been present, the policy would not be a bar – let alone an
absolute
one – to her (or any other similarly qualified white
woman’s) appointment.
[182]
Ms Barnard’s career advancement within SAPS
was not destroyed. The Employment Equity Plan has specific
targets for different
occupational levels and is flexibly used to
cater for over- and under-representation. This flexibility
ensures that she can
be promoted to a higher occupational level
should representation targets allow. By the time the case
reached this Court,
she had been promoted, albeit to a different
department.
[183]
The goal of equality is being promoted in this
case through representivity. The National Commissioner has a
duty to achieve
equitable representation in SAPS but, as stated
above, this implies a corollary duty not to aggravate existing
over representation.
Ms Barnard’s appointment would
have aggravated unacceptably the already significant
over-representation of white women at
level 9. In summary, the
impact on her dignity is not excessively restrictive and indeed
reasonably and justifiably outweighed
by the goal of the affirmative
measure.
Service
delivery
[184]
Human
dignity is not the only right or value that may be impacted on by the
attempt to achieve equality in this case. Ms Barnard
argues
that her appointment would have enhanced service delivery because she
was the most capable and skilful candidate as judged
by the Regional
Commissioner.
[200]
She
also submitted that the National Commissioner’s decision not to
appoint anyone to the post may have unacceptably
hampered service
delivery. Accordingly, in this instance, this Court is asked to
balance the public’s rights to security
of the person,
[201]
the constitutional demand for an effective police force
[202]
and a functional public service
[203]
against the promotion of full equality.
[204]
[185]
There
may sometimes be tension between efficiency and representivity.
[205]
However, it is incorrect to assume that the ideals of representivity
and efficiency are necessarily opposed.
[206]
They are in many ways interdependent and mutually reinforcing.
Representivity may increase service delivery and efficiency,
because
it raises the legitimacy of a public institution in the eyes of the
community it is meant to serve.
[207]
A police service which is representative of the community it serves
is more likely to enjoy the trust, cooperation and support
of that
community.
[208]
This
is important to the execution of police functions.
[186]
When
a balance does have to be struck between efficient service delivery
and equality in the form of representivity,
[209]
the nature of the duties of the job, the needs of the workplace and
the employer and the under- or over-representation of the group
seeking to be advanced by the affirmative measure, must be
considered. It would be unacceptable if an affirmative measure
were implemented by appointing a wholly unqualified or incapable
candidate,
[210]
or by
ignoring the qualities of a candidate who would clearly enhance
service delivery.
[187]
Ms
Barnard’s contention that her appointment would have enhanced
service delivery is logical, at least in the abstract.
The
appointment of another qualified candidate might also have done so.
The fact that a post exists implies that there is
a function which
needs to be performed; a vacancy would thus leave this function
unperformed. However, practically, temporary
vacancies in
certain positions may well be less damaging than in others to SAPS’s
ability to execute its core mandate to
protect citizens.
[211]
[188]
This
differs from, for example, vacancies in the special explosives unit
in
Coetzer
,
[212]
which required highly trained and specialised candidates and was
fundamental to SAPS’s core mandate. There is nothing
to
suggest that the division could not function effectively without
filling this position. The division has in any event
been
restructured and was due for restructuring while her candidacy was
being considered. In this case, any possible negative
impact on
service delivery was overshadowed by the fact that her appointment
would have significantly aggravated unequal representation
at salary
level 9.
[189]
Also,
courts should be wary of making evaluations about service delivery –
in the context of affirmative measures –
from a distance.
Without proper evidence or specialist institutional knowledge, it may
be difficult for a court to draw conclusions
about the precise impact
a policy, an appointment, or even a vacancy will have on service
delivery. This is the reason for
the National Commissioner’s
wide discretionary powers, particularly in the context of affirmative
measures, to appoint a
candidate or to keep a post vacant.
[213]
In this case, there is not enough evidence for this Court to impugn
the decision on the issue of service delivery.
It cannot be
said that it was disproportionate for the National Commissioner to
rank representivity higher than the possible impact
on service
delivery in this case.
Reasons
[190]
I comment on one final point, namely Ms Barnard’s
right to reasons. Assuming that we may enquire into the reasons
the
National Commissioner provided, care must be taken to locate the
right correctly.
[191]
In
the context of administrative law, a person whose rights have been
materially and adversely affected by an administrative act
may
request reasons for that action.
[214]
But we have not been asked – and it is not necessary – to
determine in this judgment whether the National Commissioner’s
decision constitutes administrative action.
[215]
[192]
Simply
because a decision does not constitute administrative action, does
not mean that an applicant is not entitled to reasons.
In
Cape
Bar Council
,
[216]
which is helpful by analogy, the Supreme Court of Appeal found that a
decision by the Judicial Service Commission (JSC) that was
explicitly
excluded from the definition of administrative action nevertheless
engaged the right to receive reasons. There
was no express
constitutional obligation to provide reasons, but such an obligation
was implied.
[217]
This
was rooted in both the JSC’s constitutional duty to exercise
its powers in a way that is not irrational or arbitrary
and its
constitutional responsibilities as an organ of state. The
obvious way to account for a decision – and in so
doing, prove
that it is neither irrational nor arbitrary – is to provide
reasons for it.
[218]
Similarly, it could be argued that SAPS’s obligation to provide
reasons is implied by the Constitution.
[193]
Whether
Ms Barnard was specifically entitled to reasons or whether they
simply serve an evidentiary purpose, the question is whether
the
reasons provided were sufficient. They would be if they gave
the affected individual enough information to understand
which of her
rights may have been infringed, so that she could then enforce these
rights.
[219]
People
can only enforce their rights if they understand what rights, if any,
have been infringed and how.
[220]
[194]
The
main judgment concludes that the reasons the National Commissioner
gave are not “scant” and so do not “attract
an
inference of . . . illegality”.
[221]
The judgment of Cameron J, Froneman J and Majiedt AJ finds that the
reasons proffered were opaque and unsatisfactory, but
ultimately
refrains from impugning the National Commissioner’s
decision.
[222]
In my
view the reasons are adequate. They could certainly have been
formulated more comprehensively, accurately and
lucidly. But
they give Ms Barnard enough information to understand why she was not
appointed.
[223]
That
her appointment would not have fulfilled representivity goals was
stated clearly and repeatedly by the National Commissioner.
This is what enabled Ms Barnard to approach a court and assert
that her rights in terms of section 9 of the Constitution and
section
6 of the Act had been violated.
Conclusion
[195]
The Constitution recognises human dignity and the
achievement of equality as founding values and fundamental rights.
It prohibits
unfair discrimination but permits measures designed to
protect or advance people disadvantaged by past unfair
discrimination.
The statutory and other measures applicable to
this case pass constitutional muster. Their implementation
promotes equality
in our society. But its impact on the right
to human dignity must be considered; so too on the efficiency of
SAPS, to which
the public is entitled. The outcome of this
analysis is that the decision of the National Commissioner was not
unlawful.
The reasons provided for the decision adequately
explain the basis of the decision. The appeal must succeed.
JAFTA
J (Moseneke ACJ concurring):
[196]
I have read the main judgment and other judgments
prepared by my Colleagues in this matter. I agree that the
appeal should
succeed and that the order of the Supreme Court of
Appeal should be set aside. The effect of this would be to
revive the
order issued by the Labour Appeal Court which was, in my
view, the correct order. The Supreme Court of Appeal should
have
dismissed the appeal.
[197]
I agree fully with the main judgment but disagree
with the other judgments. I share the opinion that we should
not determine
the cause of action relating to the review of the
National Commissioner’s decision in terms of which Ms Barnard
was not appointed.
While I support the reasons advanced by the
main judgment for this finding, it is necessary for me to set out
additional reasons
for not deciding the new cause of action.
[198]
Having accepted the validity of the Employment
Equity Plan, Ms Barnard’s cause of action, raised for the first
time in this
Court, was formulated thus:
“
What
is centrally in issue is whether the National Commissioner, in making
his decision, in fact followed the approach mandated
in the [National
Instruction] and by the [Employment Equity Act]. This entails
an examination of his reasons or, to put it
more correctly, the
reasons that were legitimately tendered in the course of the legal
proceedings. Since, it was common
cause, the decision was taken
in pursuit of the prevailing Employment Equity Plan, the Plan itself
becomes a source for determining
the content of his decision.”
[199]
But the claim that was pleaded and pursued in the
Labour Court was different. What emerges from the statement
above is the
fact that Ms Barnard now seeks to use the Employment
Equity Plan as the benchmark against which the decision not to
appoint her
must be measured. The fact that the decision was
taken in terms of the Employment Equity Plan, she argues, was common
cause.
But she invites us to examine the reasons furnished by
the National Commissioner to determine whether the impugned decision
accords
with the Employment Equity Plan. The essence of the
complaint is that the National Commissioner overlooked Ms Barnard’s
merit and that the reasons furnished in support of the decision were
inadequate.
[200]
As captured in its judgment, what she sought from
the Labour Court was relief for unfair discrimination. In the
opening paragraph
of the judgment, the Court records:
“
She
claims relief for unfair discrimination. Her cause of action is
based on the principal allegation that she was denied
promotion on
two occasions for the sole reason that she is white.”
[224]
[201]
The Supreme Court of Appeal too understood her
claim to be that of unfair discrimination. That Court
characterised the issue
for determination in these terms:
“
The
appeal concerns the grievance of an erstwhile police captain, who
twice applied unsuccessfully for a promotion to the position
of
Superintendent in a specialised unit of the respondent, the South
African Police Service (SAPS). It is the second rejection
that
is the subject of the present appeal. Her grievance is that
despite it being admitted that she was the best candidate
for the
position she was denied the promotion solely because she was white
and that such conduct on the part of her employer, the
SAPS,
constituted unfair discrimination.”
[225]
[202]
This
is the context in which the question whether Ms Barnard may be
permitted to raise the new cause of action in this Court, must
be
answered. It is a principle of our law that a party must plead
its cause of action in the court of first instance so as
to warn
other parties of the case they have to meet and the relief sought
against them. This is a fundamental principle of
fairness in
the conduct of litigation. It promotes the parties’
rights to a fair hearing which is guaranteed by section
34 of the
Constitution.
[226]
[203]
In
Everfresh
,
this Court reaffirmed this principle in these words:
“
It
is so that the test on proper pleading in
Prince
related
to a challenge to the constitutional validity of a provision in a
statute. That test, however, is of equal force where,
as in the
present case, a party seeks to invoke the Constitution in order to
adapt or change an existing precedent or a rule of
the common law or
of customary law in order to promote the spirit, purport and objects
of the Bill of Rights. Litigants who
seek to invoke provisions
of section 39(2) must ordinarily plead their case in the court of
first instance in order to warn the
other party of the case it will
have to meet and the relief sought against it.”
[227]
(Footnotes omitted.)
[204]
As
this Court observed in
Prince
,
[228]
the purpose of the pleadings is to define and inform the court of
first instance about the issues between the parties and also
warn the
other parties of the case they are required to meet, so as to give
them the opportunity to present factual material and
legal argument
to meet that case. Here the claim that was pleaded was that the
decision not to appoint Ms Barnard was based
on her race and as such
constituted unfair discrimination. This was the claim the
Police Service was required to meet and
it was the same claim that
was decided by the other courts.
[205]
In determining the matter, the Labour Court held:
“
It
appears common cause that the National Commissioner could, had he so
decided, have implemented the Employment Equity Plan directly
by
employing a suitably qualified black candidate to the post.
Instead the National Commissioner declined to do so.
It cannot
be said, in my view, that the non-appointment of any candidate to the
post was in fact a fair and appropriate method
of implementing the
Employment Equity Plan which was fair to the applicant. The
non-appointment is no more than just that,
a non-appointment.
In my view, having decided not to implement the Employment Equity
Plan by appointing a recommended black
candidate it was unfair in
those circumstances not to appoint the applicant, a member of a
designated group in terms of the
Employment Equity Act and
the best
candidate for the job.”
[229]
[206]
Consistent
with this theme, the Labour Court reasoned that because the other two
black candidates who were recommended were also
not appointed, the
failure to appoint Ms Barnard was unfair and irrational.
[230]
[207]
In
a similar vein, the Supreme Court of Appeal held that Ms Barnard was
not appointed because she is white and that constituted
discrimination on one of the listed grounds. For this
proposition reliance was placed on
Gordon
.
[231]
In
Gordon
the
Supreme Court of Appeal held that the appointment of a black
candidate ahead of a white candidate, who was recommended by the
selection panel, amounted to discrimination on the basis of colour
and race. The discrimination was found to be unfair owing
to
the fact that the Department of Health had no policy or plan in place
for the implementation of affirmative action.
[208]
Having
found that the failure to appoint Ms Barnard constituted
discrimination on the basis of race, the Supreme Court of Appeal
went
on to invoke the
Harksen
test
[232]
in order to determine the unfairness of the discrimination. I
agree with the main judgment that the Supreme Court of Appeal
approached the matter on an incorrect footing and applied the wrong
test. The
Harksen
test
does not apply where in defending a claim of unfair discrimination,
the defendant argues that the impugned decision was taken
in the
furtherance of a restitutionary measure, contemplated in section 9(2)
of the Constitution. In terms of section 6(2)(a)
of the Act, it
“is not unfair discrimination to take affirmative action
measures consistent with the purpose of this Act”.
May
the new cause of action be determined?
[209]
Once it is accepted that the decision not to
appoint Ms Barnard was taken in terms of the Employment Equity Plan
and the Instruction
which form part of a restitutionary measure, the
decision cannot be regarded as amounting to unfair discrimination.
The claim
by Ms Barnard must have failed and this ought to have been
the end of the matter.
[210]
In our system it is not permissible for a party to
raise a constitutional complaint that was not pleaded. Recently, the
Supreme
Court of Appeal affirmed this principle in
Fischer
v Ramahlele
:
“
Turning
then to the nature of civil litigation in our adversarial system it
is for the parties, either in the pleadings or affidavits,
which
serve the function of both pleadings and evidence, to set out and
define the nature of their dispute and it is for the court
to
adjudicate upon those issues. That is so even where the dispute
involves an issue pertaining to the basic human rights
guaranteed by
our Constitution, for ‘it is impermissible for a party to rely
on a constitutional complaint that was not pleaded’.
There are cases where the parties may expand those issues by the way
in which they conduct proceedings.”
[233]
(Footnotes omitted.)
[211]
In this Court Ms Barnard, without any motivation,
sought to raise a different and new cause of action. In
opposition the Police
Service has contended that the determination of
this cause of action will prejudice it as it was not afforded the
opportunity to
present facts to support the legal argument it could
have advanced. In the light of the reasons set out in the main
judgment
on this aspect of the case, it is likely that the Police
Service would be prejudiced by the determination of the new cause of
action.
[212]
Allowing a party to raise a new cause of action on
appeal is a matter of discretion. The court of appeal may
exercise its
discretion to permit a party to do so if it will not be
unfair to the other parties. Permission will ordinarily be
granted
where the cause of action was foreshadowed by the pleadings
and established by facts on record. This is not the position
here. The pleadings did not cover the review of the National
Commissioner’s decision on the grounds that he failed to
take
into account Ms Barnard’s personal circumstances or that
the reasons given for the decision were insufficient.
This
matter was also not canvassed fully in evidence because Ms Barnard
had pursued an equality claim and not the review of
the impugned
decision.
[213]
On what basis then may this Court allow her to
raise a different and new cause of action? I am unable to find
any. In
Barkhuizen
,
this Court affirmed the principle of fairness on the exercise of
discretion. Here is the formulation of the principle:
“
The
mere fact that a point of law is raised for the first time on appeal
is not in itself sufficient reason for refusing to consider
it.
If the point is covered by the pleadings, and if its consideration on
appeal involves no unfairness to the other party
against whom it is
directed, this Court may in the exercise of its discretion consider
the point. Unfairness may arise where,
for example, a party
would not have agreed on material facts, or on only those facts
stated in the agreed statement of facts had
the party been aware that
there were other legal issues involved. It would similarly be
unfair to the other party if the
law point and all its ramifications
were not canvassed and investigated at trial.”
[234]
(Footnotes omitted.)
[214]
But even if Ms Barnard were permitted to raise the
new cause of action, the case she sought to make was that the
National Commissioner’s
decision was at variance with the
Employment Equity Plan and the Instruction. These documents,
she argued, required the National
Commissioner to take into
consideration “her competence, her prior learning, training and
development, the quality of her
performance and suitability for the
post, and her disciplinary record”. In short she
contended that her merits as a
candidate were overlooked by the
National Commissioner when the decision not to appoint her was taken.
[215]
Clearly, this does not raise the issue of the
standard applicable to implementation of an affirmative action
measure. Despite
invitation from this Court, the parties failed
to present full argument on the appropriate standard. The
reason for this
is not hard to find. It was not Ms Barnard’s
case in this Court (or in the other courts) that the National
Commissioner
followed the wrong standard in implementing the
Employment Equity Plan and the Instruction.
[216]
The appropriate standard was not an issue raised
by any of the parties. The question that arises is whether this
Court may,
of its own accord, raise the issue. If so, the
further question will be whether it is necessary in the present
circumstances,
for this Court to determine a general standard to be
applied in implementing restitutionary measures in the workplace.
Raising
the standard mero motu
[217]
The general principle of our law is that it is the
parties themselves who identify and raise issues to be determined by
a court.
The parties may have their own reasons for not raising
an issue which the court finds interesting or important to
determine.
The scope of what falls to be determined depends on
what the pleadings contain. In
CUSA
,
this Court formulated the principle in these terms:
“
Subject
to what is stated in the following paragraph, the role of the
reviewing court is limited to deciding issues that are raised
in the
review proceedings. It may not, on its own, raise issues which
were not raised by the party who seeks to review an
arbitral award.
There is much to be said for the submission by the workers that it is
not for the reviewing court to tell
a litigant what it should
complain about. In particular, the [Labour Relations Act]
specifies the grounds upon which arbitral
awards may be reviewed.
A party who seeks to review an arbitral award is bound by the grounds
contained in the review application.
A litigant may not, on
appeal, raise a new ground of review. To permit a party to do
so may very well undermine the objective
of the [Labour Relations
Act] to have labour disputes resolved as speedily as possible.”
[235]
[218]
However, this principle is subject to one
exception. The point raised
mero
motu
by the Court must be apparent from
the papers in the sense that it was sufficiently canvassed and
established by the facts, and
that its determination must be
necessary for the proper adjudication of the case. Elaborating
on the exception in
CUSA
,
this Court said:
“
Where
a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what the
law is, a
court is not only entitled, but is in fact also obliged,
mero
motu
,
to raise the point of law and require the parties to deal therewith.
Otherwise, the result would be a decision premised
on an incorrect
application of the law. That would infringe the principle of
legality.”
[236]
(Footnote omitted.)
[219]
Here the appropriate standard was not canvassed at
all on the papers and consequently was not apparent on the record.
In addition,
the failure to raise it was not owing to the common
approach of the parties which proceeded from an incorrect
understanding of
the law. The parties here made their own
choice as to the issue to be determined by the Court. That
choice must be
respected.
[220]
In
Fischer v
Ramahlele
, the Supreme Court of Appeal
cautioned:
“
It
is not for the court to raise new issues not traversed in the
pleadings or affidavits, however interesting or important they
may
seem to it, and to insist that the parties deal with them. The
parties may have their own reasons for not raising those
issues.
A court may sometimes suggest a line of argument or an approach to a
case that has not previously occurred to the
parties. However,
it is then for the parties to determine whether they wish to adopt
the new point. They may choose
not to do so because of its
implications for the further conduct of the proceedings, such as an
adjournment or the need to amend
pleadings or call additional
evidence. They may feel that their case is sufficiently strong
as it stands to require no supplementation.
They may simply
wish the issues already identified to be determined because they are
relevant to future matters and the relationship
between the parties.
That is for them to decide and not the court.”
[237]
(Footnotes omitted.)
[221]
The determination of the appropriate standard is
not even necessary for disposing of this case. Any opinion
expressed on this
issue would remain obiter and therefore will not
bind other courts. In these circumstances I conclude that it is
not competent
for this Court to raise
mero
motu
the question of the appropriate
standard and determine what that standard should be.
Other
considerations against laying down a standard
[222]
There are further considerations that militate
against the determination of the standard. First, in a
collegial Court like
ours, it is ill-advised to attempt to raise a
legal point if members of the Court do not agree on what the point
should be.
Some members prefer fairness as the standard but
others prefer proportionality. We have not had the benefit of
argument on
these issues.
Fairness
[223]
Second,
with regard to fairness, the difficulty I have is that it is not
clear to me where the standard is sourced. In section
9(2), the
Constitution mandates the adoption of restitutionary measures such as
the Employment Equity Plan.
[238]
The Act, which was passed to give effect to section 9 of the
Constitution in the workplace, proclaims that to take affirmative
action measures consistent with its purpose does not constitute
unfair discrimination.
[239]
It
will be recalled that such standard will be applicable to equality
claims based on the Act and section 9 of the Constitution.
[224]
It is true that the Police Service, in defending
the unfair discrimination claim, invoked section 6(2) of the Act, and
argued that
the National Commissioner’s decision was based on
its Employment Equity Plan. It is also correct that section
6(2)
requires that affirmative action measures must be consistent
with the purpose of the Act. Here the National Commissioner
decided not to appoint Ms Barnard because her appointment could have
been contrary to the Police Services’ Employment Equity
Plan.
White women were over-represented at the level of the post in which
she sought to be appointed.
[225]
The question that arises is whether the National
Commissioner’s decision is consistent with the purpose of the
Act.
The answer must be yes. The purpose of the Act is
set out in plain terms in section 2. The section provides:
“
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.”
[226]
A reading of this section reveals that the
achievement of equity in the workplace is the purpose of the Act.
Furthermore,
the section defines procedures which may be followed to
achieve that purpose. One of those procedures is the
implementation
of “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.” The other
procedure
is to promote equal opportunity and fair treatment by
eliminating unfair discrimination. It is therefore not correct
to look
at other sections of the Act for clues on its purpose when
the Act expressly states its purpose in section 2.
[227]
By not appointing Ms Barnard and reserving the
post for black officers, the National Commissioner sought to achieve
representivity
and equity in the Police Service. This accords
with its Employment Equity Plan and is consistent with the purpose of
the
Act. Therefore, the National Commissioner’s decision
cannot constitute unfair discrimination nor can it be taken to
be
unfair. Consequently, unfairness as a standard cannot be
sourced from the Act.
[228]
Even if unfairness were to be consistent with the
relevant governing law, I would still have difficulty with its
application.
As we know it, fairness is a double edged
sword. In determining what is fair in a given case account
would have to be
taken of competing interests. A court would
have to weigh the interests of the claimant against those of the
class the restitutionary
measure was adopted to advance, as well as
the interests of an employer who is obliged by the Act to achieve
equity.
[229]
An approach of that nature would undermine the
very objective which section 9(2) of the Constitution and the
Act seek to achieve.
The aim of these instruments is to achieve
equality in the workplace. Such an approach would be
inconsistent with the way
our courts determine unfairness in an
employment setting. In
National
Union of Metalworkers of South Africa
,
Smalberger JA formulated the correct approach thus:
“
Fairness
comprehends that regard must be had not only to the position and
interests of the worker, but also those of the employer,
in order to
make a balanced and equitable assessment. In judging fairness,
a court applies a moral value judgment to established
facts and
circumstances. . . . And in doing so it must have due and
proper regard to the objectives sought to be achieved
by the
Act.”
[240]
[230]
An enquiry into the implementation of a
restitutionary measure cannot leave out of account the historical
context that led to white
employees being over-represented in
managerial and supervisory posts. On this score, I can do no
better than to refer to
the eloquent judgment of the Labour Appeal
Court. It reads:
“
The
over representivity of white males and females is itself a powerful
demonstration of the insidious consequence of our unhappy
past.
White people were advantaged over other races especially in the
public service. This advantage was perpetuated
by the transfer
of skills, some critical, to the same white race to the exclusion of
others, especially blacks. The over
representivity of whites in
level 9 is a stark reminder of our past and indeed the present and
yet another wake up call to decisively
break from these practices.
These are practices that can be effectively broken by embracing
the restitutionary spirit of
the Constitution.”
[241]
[231]
The Labour Appeal Court held that, because “the
essence of restitutionary measures is to guarantee the right to
equality”,
their implementation cannot be subjected to an
individual’s right to equality. The Court reasoned thus:
“
On
the basis of this discussion, it is clear that the Labour Court erred
in treating the implementation of restitutionary measures
as subject
to the individual conception of a right to equality. This is
more so as this approach promotes the interests of
persons from non
designated categories to continue enjoying an unfair advantage which
they had enjoyed under apartheid. Treating
restitutionary
measures in this manner is surely bound to stifle legitimate
constitutional objectives and result in the perpetuation
of
inequitable representation in the workplace.”
[242]
[232]
The
approach adopted by the Labour Appeal Court is not consistent with
applying the proposed standards of fairness and proportionality.
Yet we received no argument from the parties showing that the Labour
Appeal Court was wrong. It will be recalled that the
Labour
Appeal Court and the Labour Court are specialist courts established
specifically to decide labour law matters. Therefore,
the
development of our labour law jurisprudence must begin in those
Courts. As observed by this Court in
NEHAWU
,
[243]
interference with that jurisprudence would be justified only if those
courts were mistaken in the formulation or application of
important
principles.
[233]
All these issues could have been addressed in
argument if the question of standard had been raised. They were
not. In
these circumstances, it is only proper to defer the
determination of the standard for another day.
For
the Applicant: H Maenetje SC and J Bleazard
instructed
by the State Attorney.
For
the Respondent: M Brassey SC and M Engelbrecht
instructed
by Serfontein, Viljoen & Swart.
For
the Amicus Curiae: V Ngalwana and F Karachi instructed
by Grosskopf Attorneys.
[1]
Solidarity
obo Barnard v South African Police Service
[2013]
ZASCA 177
;
2014 (2) SA 1
(SCA) (Supreme Court of Appeal judgment)
per Navsa ADP, with Ponnan JA, Tshiqi JA, Theron JA and Zondi AJA
concurring.
[2]
South
African Police Services v Solidarity obo Barnard
[2012]
ZALAC 31
;
2013 (3) BCLR 320
(LAC) (Labour Appeal Court judgment).
[3]
55
of 1998.
[4]
Section
50(2)(a) provides:
“
If
the Labour Court decides that an employee has been unfairly
discriminated against, the Court may make any appropriate order
that
is just and equitable in the circumstances, including payment of
compensation by the employer to that employee”.
[5]
Sections
27
and
28
of the
Labour Relations Act 66 of 1995
provide that a
bargaining council may be established by one or more registered
trade unions and one or more registered employers’
organisations for a particular sector and area. The powers and
functions of the bargaining council so established include
among
other thing
s
the
conclusion and enforcement of collective agreements and the
performance of labour dispute resolution functions in terms of
section 51
of the Act. It also includes the administration of
pension and provident funds and medical aid schemes and the like for
their members.
[6]
Solidarity
obo Barnard v South African Police Services
[2010]
ZALC 10
;
2010 (10) BCLR 1094
(LC) (Labour Court judgment). See
also the Supreme Court of Appeal judgment above n 1 and the Labour
Appeal Court judgment
above n 2.
[7]
He
purported to act in terms of section 207 of the Constitution and
sections 20
and
27
of the
South African Police Service Act 68 of
1995
.
[8]
South
African Police Service: Job Description National Evaluation Service;
Key Performance Areas (Clause C.1 and more fully defined
in Clause
D.1.1.1).
[9]
According
to
section 1
of the Act “designated groups” means black
people, women and people with disabilities.
Rule 5(3)
of the
National Instruction 1 of 2004 permits the National Commissioner to
reserve an advertised post for the designated group.
[10]
Rule
13
of the National Instruction sets out the procedure to be
followed.
[11]
See
above n 4.
[12]
Labour
Court judgment above n 6.
[13]
See
above n 2.
[14]
See
above n 1.
[15]
Id
at para 81.
[16]
Section
9(3) of the Constitution provides:
“
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.”
[17]
Harksen
v Lane NO and Others
[1997]
ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC) (
Harksen
).
[18]
Supreme
Court of Appeal judgment above n 1 at para 78.
[19]
Section
1(a) to (c) of the Constitution.
[20]
Section
9(1) of the Constitution.
[21]
See
above n 16.
[22]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004]
ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) (
Bato
Star
)
at para 76.
[23]
Minister
of Finance and Another v Van Heerden
[2004]
ZACC 3
;
2004 (6) SA 121
(CC);
2004 (11) BCLR 1125
(CC) (
Van
Heerden
)
at para 43.
[24]
Fourie
and Another v Minister of Home Affairs and Others
[2004]
ZASCA 132
;
2005 (3) SA 429
(SCA);
2005 (3) BCLR 241
(SCA) (
Fourie
)
at para 25.
[25]
Id
at para 9.
[26]
Section
9(2) of the Constitution.
[27]
The
Preamble to the Constitution.
[28]
Section
9(4) and (5) of the Constitution.
[29]
See
above n 26.
[30]
Van
Heerden
above
n 23 at para 37.
[31]
Id
at para 33.
[32]
Section
6(1).
[33]
Section
13(1).
[34]
Section
1.
[35]
Section
20.
[36]
Section
15(1).
[37]
Section
15(2)(b) and (d)(ii).
[38]
Section
15(3).
[39]
Sections
42 and 43.
[40]
The
South African Police Organisation and the amicus curiae were the two
trade unions who were party to the bargaining council
where the
Employment Equity Plan was planned and developed.
[41]
The
Police Service had 120 017 members at the time that the Employment
Equity Plan was adopted.
[42]
1
of 2004.
[43]
Rule
12(1).
[44]
The
Instruction makes it clear that the National Commissioner may leave
a post vacant for re-advertisement.
[45]
Harksen
above
n 17.
[46]
Section
9(5) of the Constitution.
[47]
Supreme
Court of Appeal judgment above n 1 at para 50.
[48]
Id
at para 55.
[49]
See
above [42].
[50]
WC
Greyling & Erasmus (Pty) Ltd v Johannesburg Local Road
Transportation Board
and
Others
1982
(4) SA 427
(A) at 449D-E (
WC
Greyling
).
The respondent also relied on
Minister
of Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and
Tourism and Others
v Bato Star Fishing (Pty) Ltd
[2003]
ZASCA 46
;
2003 (6) SA 407
(SCA) (
Phambili
Fisheries
)
at
para 40.
[51]
Rule
7A of the Labour Court Rules. Rule 7A(1) provides:
“
A
party desiring to review a decision or proceedings of a body or
person performing a reviewable function justiciable by the court
must deliver a notice of motion to the person or body and to all
other affected parties.”
[52]
3
of 2000. Section 6(1) provides:
“
Any
person may institute proceedings in a court or a tribunal for the
judicial review of an administrative action.”
[53]
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
[2014]
ZACC 6
;
2014 (3) SA 481
(CC);
2014 (5) BCLR 547
(CC) at para 83.
See also
Associated
Institutions Pension Fund and Others v Van Zyl and Others
[2004]
ZASCA 78
;
2005 (2) SA 302
(SCA) at paras 46-8.
[54]
Section
7(1) of PAJA provides:
“
Any
proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable delay and not later than
180 days
after the date”.
[55]
Everfresh
Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
[2011]
ZACC 30
;
2012 (1) SA 256
(CC);
2012 (3) BCLR 219
(CC) (
Everfresh
)
at para 27;
Carmichele
v Minister of Safety and Security
[2001]
ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 31;
and
Minister
of Public Works and Others v Kyalami Ridge Environmental Association
and Others (Mukhwevho Intervening)
[2001]
ZACC 19
;
2001 (3) SA 1151
(CC);
2001 (7) BCLR 652
(CC) (
Kyalami
Ridge
)
at para 88.
[56]
See
[46] above.
[57]
Rule
2(g).
[58]
Rule
12(1)(d) and (g).
[59]
Rule
13(3).
[60]
See
[15] to [16] above.
[61]
At
[1].
[62]
At
[28] to [39].
[63]
See
[93] to [98].
[64]
See
the Preamble.
[65]
See
especially section 1(b).
[66]
See
[28] to [39].
[67]
At
[29].
[68]
Bato
Star
above
n 22 at para 76.
[69]
At
[30]. See also
Bato
Star
id.
[70]
Section
9(2) of the Constitution provides:
“
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.”
[71]
Section
9(3) prohibits discrimination on the following grounds: race,
gender, sex, pregnancy, marital status, ethnic or social
origin,
colour, sexual orientation, age, disability, religion, conscience,
belief, culture, language and birth.
[72]
Gcaba
v Minister for Safety and Security and Others
[2009]
ZACC 26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC).
[73]
At
[1].
[74]
Section
6(1), read with section 9, of the Act.
[75]
See,
for example, sections 2(b), 6(2)(a) and 13(1) of the Act.
[76]
At
[59] to [60].
[77]
Section
49.
[78]
Section
50(1)(h).
[79]
66
of 1995.
[80]
Section
6(1).
[81]
Section
6(2)(a). The Act thus mirrors the provisions of the
Constitution, which prohibit unfair discrimination (section
9(3))
but say that, nevertheless, affirmative action measures “designed
to protect or advance persons, or categories of
persons,
disadvantaged by unfair discrimination” are permissible
(section 9(2)).
[82]
Section
2.
[83]
A
good starting point is section 15, which is headed “Affirmative
action measures” and provides:
“
(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.”
[84]
Section
15(3).
[85]
Section
15(4).
[86]
Section
2(b).
[87]
Section
1.
[88]
Section
13(1).
[89]
Section
15(2)(b).
[90]
See
sections 1(a), 7(1) and 10 of the Constitution.
[91]
Section
3(a).
[92]
Section
9(2) of the Constitution states that affirmative action measures are
“[t]o promote the achievement of equality”.
See
also
Bato
Star
above
n 22 at para 74;
Van
Heerden
above
n 23 at para 30; and the main judgment at [35].
[93]
Needless
to say, this does not mean an affirmative action measure may never
impair the interests of the previously advantaged.
Frequently
the goals of transformation are more important. But their
realisation must accord with the Constitution.
See
Bato
Star
above
n 22 at para 76. This means, as this Court held in
Van
Heerden
above
n 23 at paras 41 and 44, the measures “must be reasonably
capable of attaining the desired outcome”, may not
be
“arbitrary, capricious or display naked preference” and
“should not 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.”
The Act has given additional content to this constitutional
standard.
[94]
In
terms of section 15(1), affirmative action measures are measures
that advance “suitably qualified” people from
disadvantaged groups. See also section 15(2)(d)(i).
[95]
See
the discussion at [108] below.
[96]
At
[55] to [58].
[97]
At
[42].
[98]
See
authorities above at n 92.
[99]
At
[30].
[100]
At
[32].
[101]
On
this basis, we disagree with Jafta J that it is unnecessary for the
Court to consider any standard at all (see [221]).
For
the reasons we have stated, we consider that the validity of the
National Commissioner’s implementation of the Plan
is before
the Court. We do not consider applicable
CUSA
v Tao Ying Metal Industries and Others
[2008]
ZACC 15
;
2009 (2) SA 204
(CC);
2009 (1) BCLR 1
(CC) at para 67.
Here, Ms Barnard’s challenge, in its essence, concerned
the fairness of the National Commissioner’s
application to her
of the Plan.
[102]
Main
judgment at [39].
[103]
Id.
[104]
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex parte
President of the Republic of South Africa and Others
[2000]
ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 90.
[105]
See,
for example,
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007]
ZACC 22
;
2008 (2) SA 24
(CC);
2008 (2) BCLR 158
(CC) at para 112,
which discusses how the rights to just administrative action, fair
labour practices and access to courts overlap
and complement one
another.
[106]
Gcaba
above
n 72 at para 56.
[107]
We
have had the benefit of reading the concurring judgment of Van der
Westhuizen J and consider invaluable his detailed treatment
of
dignity and proportionality. Our own comments on dignity are
merely complementary to his more elaborate treatment.
As far
as his suggestion of proportionality as the exclusive standard is
concerned, we think that proportionality can be accommodated
within
the broader standard of fairness. The added advantage of
fairness is it may also cater for situations where proportionality
is not necessarily at the heart of alleged unfair implementation.
[108]
Section
2(a).
[109]
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews and Another
[2009]
ZACC 6
;
2009 (4) SA 529
(CC);
2009 (6) BCLR 527
(CC) (
Mphaphuli
)
at para 221.
[110]
Section
195(1)(i) of the Constitution obliges our public administration to
apply “employment and personnel management practices
based on
ability, objectivity, fairness, and the need to redress the
imbalances of the past to achieve broad representation.”
[111]
See
Van der Westhuizen J’s judgment at [157] to [159].
[112]
See
[87] to [89].
[113]
At
[59] to [60].
[114]
At
[60].
[115]
See
sections 1(d), 32, 41(1)(c) and 195(1)(g) of the Constitution.
[116]
Hoexter
Administrative
Law in South Africa
2
ed (Juta & Co Ltd, Cape Town 2012) at 461 states that “[r]easons
are not really reasons unless they are properly informative.
They
must explain
why
action
was taken or not taken; otherwise they are better described as
findings or other information.” (Footnote omitted.)
See also
Judicial
Service Commission and Another v Cape Bar Council and Another
[2012]
ZASCA 115
;
2013 (1) SA 170
(SCA) (
Cape
Bar Council
)
at para 46, citing Baxter
Administrative
Law
(Juta
& Co Ltd, Cape Town 1984) at 228, and
Nkondo
and Others v Minister of Law and Order and Another; Gumede and
Others v Minister of Law and Order and Another; Minister
of Law and
Order v Gumede and Others
[1986]
ZASCA 20
;
1986 (2) SA 756
(A) at 772I-773B.
[117]
Phambili
Fisheries
above
n 50 at para 40, quoting
Ansett
Transport Industries (Operations) Pty Ltd and Another v Wraith and
Others
[1983]
FCA 179
;
(1983) 48 ALR 500
at 507.
[118]
Supreme Court of
Appeal judgment above n 1 at para 76.
[119]
Section
205(3) of the Constitution entrusts the SAPS with vital public
functions; its objects are “to prevent, combat and
investigate
crime, to maintain public order, to protect and secure the
inhabitants of the Republic and their property, and to
uphold and
enforce the law”. Section 205(2) requires legislation to
“enable the police service to discharge
its responsibilities
effectively”. As part of the public administration, the
SAPS must promote the “[e]fficient,
economic and effective use
of resources” (section 195(1)(b)) and be responsive to the
public’s needs (section 195(1)(e)).
Section 206(3)(b)
prizes “the effectiveness and efficiency of the police
service”.
[120]
The
Plan’s executive summary refers to the SAPS’s “objective
of achieving service delivery improvement which
permeates across all
sectors of Human Resource practices”.
[121]
This
letter reads in relevant part:
“
The
promotion of a candidate must add value to service delivery . . .
[and] must therefore ensure that recommended candidates
display the
necessary competence/potential and do meet the inherent requirements
of the job. Inherent requirements of the
job means ‘those
competencies which have been proved to be required by an employee to
carry out a job’ and competence
means ‘the blend of
knowledge, skills, behaviour and aptitude that a person can apply in
the work environment, and which
are indicative of that person’s
ability to meet the requirements of a specific post’ . . . .
The investments by the [SAPS]
in the development of their employees in their specific career
streams should not be jeopardised
and should be taken into account
by the panels in making their recommendations.”
[122]
Section
20(3)(d).
[123]
Compare
section 15(2)(d)(ii), which says affirmative action measures “must
include” measures to “develop people
from designated
groups” and “appropriate training measures”.
[124]
See
[88] above.
[125]
Id.
[126]
Rule
13(1) of the National Instruction.
[127]
The
Plan refers to “gender” representivity to mean the
relative representation of men and women in the workforce.
The
more appropriate word may be “sex”, which refers to
biological rather than social traits. Nevertheless,
we retain
the Plan’s term in this section.
[128]
See
[87] above.
[129]
At
[16].
[130]
State
of the Union Address, 11 January 1962 reproduced in Sorensen (ed)
“
Let
the Word Go Forth”: The Speeches, Statements, and Writings of
John F. Kennedy 1947 to 1963
(Dell
Publishing, New York 1991) at 231 2. This was said in the
context of the United States of America’s obligations
after
the Second World War.
[131]
Kende
Constitutional
Rights in Two Worlds: South Africa and the United States
(Cambridge
University Press, New York 2009) at 174. The US’s
affirmative action practices were initiated by President
Kennedy’s
executive order, rather than enacted into federal legislation.
[132]
Id.
Kende explains that “[t]he US Supreme Court . . . has
generally prohibited affirmative action plans for broad
social
purposes.” For relevant case law, see
Regents
of University of California v Bakke
[1978] USSC 145
;
438
US 265
(1978), which upheld affirmative action in California state
education but found quotas unconstitutional;
Gratz
v Bollinger
[2003] USSC 4654
;
539
US 244
(2003), which found that the University of Michigan’s
point system of admissions that awarded “bonus points”
for minority prospective students amounted to a quota and did not
account for students’ individuality and was therefore
unconstitutional;
Grutter
v Bollinger
[2003] USSC 4657
;
539
US 306
(2003), which found that race based admissions policies
at the University of Michigan that intended to create a “critical
mass” of minority students were narrowly tailored, for
instance because they were limited in time, and were thus
constitutional;
Parents
Involved in Community Schools v Seattle School District No 1
551
US 701
(2007), which struck down a race-based school desegregation
plan despite acknowledging arguments from the school district about
promoting diversity and curbing racial isolation;
Schuette
v Coalition to Defend Affirmative Action
572
US (2014), which affirmed the State of Michigan’s ban on
race-based affirmative action in state education; and
Fisher
v University of Texas at Austin
570
US (2013), which found that affirmative action should be subjected
to strict-scrutiny review and remanded the case to the
Fifth
Circuit, which, in
Fisher
v University of Texas at Austin
2014
WL 3442449 (5th Cir 24 June 2013), ruled that affirmative action in
the University’s admissions policy was permitted
even under
that more searching standard. At least one state prohibits
affirmative action in its constitution. In
1996 Proposition
209 amended California’s constitution to prohibit any state
decisions based on race, sex and other considerations.
This
amendment effectively eliminated affirmative action in California.
[133]
Carter
Reflections
of an Affirmative Action Baby
(BasicBooks,
New York 1991) throughout and, for example, at 169-72.
[134]
Id
at 11 and following.
[135]
Ackermann
Human
Dignity: Lodestar for Equality in South Africa
(Juta
& Co Ltd, Cape Town 2012) at 345 6 notes that, like
unjustified enrichment, restitutionary measures do “not
rest
upon
proof
of guilt
,
but on
proof
of unjustified enrichment
on
the part of the advantaged.” See generally Visser
Unjustified
Enrichment
(Juta
& Co Ltd, Cape Town 2008).
[136]
The
Preamble to the Constitution.
[137]
Section
1(a) and (b).
[138]
Section
9.
[139]
Section
10 provides: “Everyone has inherent dignity and the right to
have their dignity respected and protected.”
[140]
Section
1(a).
[141]
At
[59] to [60].
[142]
See
[134] below for the full wording.
[143]
Above
n 23.
[144]
Id
at paras 30-1. In Mokgoro J’s judgment, she states at
para 95: “
A
measure enacted in terms of section 9(2) is not an exception to our
notion of equality; it is an integral part of it”.
[145]
In
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
[1998]
ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) (
National
Coalition
)
at para 60 this Court affirmed the importance of remedial measures
to achieve this substantive equality:
“
It
is insufficient for the Constitution merely to ensure, through its
Bill of Rights, that statutory provisions which have caused
such
unfair discrimination in the past are eliminated. Past unfair
discrimination frequently has ongoing negative consequences,
the
continuation of which is not halted immediately when the initial
causes are eliminated, and unless remedied, may continue
for a
substantial time and even indefinitely. Like justice, equality
delayed is equality denied.”
[146]
Stoman
v Minister of Safety and Security and Others
2002
(3) SA 468
(T) at 477F-H.
[147]
National
Coalition
above
n 145 at para 60 and
Pretoria
City Council v Walker
[1998]
ZACC 1
;
1998 (2) SA 363
(CC);
1998 (3) BCLR 257
(CC) (
Walker
)
at para 46.
[148]
See,
for example, Mokgoro J’s judgment in
Van
Heerden
above
n 23 at paras 80-1;
section 6(2)
of the
Employment Equity Act;
section
14(1) of the
Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000
; and Brickhill “Testing
Affirmative Action under the Constitution and the Equality Act”
(2006) 27
ILJ
2004
at 2012.
[149]
See
also, for example, De Vos “The Past is Unpredictable: Race,
Redress and Remembrance in the South African Constitution”
(2012) 129
SALJ
73
at 88:
“
The
fact that the Constitutional Court has embraced a substantive notion
of equality and has emphasised that corrective measures
were both
constitutionally permissible and sometimes mandated in order to
achieve substantive equality, does not mean that the
Constitution
places no limitation on the measures that may be taken”.
Ackermann above n 135 at 364
states:
“
What
section 9(2) clearly does not do is give a blanket guarantee that
any
‘
measure’
taken under its provisions will be constitutional, irrespective of
the nature or extent of its impact on affected
parties.”
[150]
Section
4(2)
of the
Employment Equity Act.
>
[151]
Above
n 23 at para 37.
[152]
See
Stoman
above
n 146 at 480 discussing rationality in the context of affirmative
measures:
“
[A]
policy or practice which can be regarded as haphazard, random and
overhasty, could hardly be described as measures designed
to achieve
something. There must indeed be a rational connection between
the measures and the aim they are designed to
achieve.”
[153]
At
[38].
[154]
Above
n 23 at para 44.
[155]
Sachs
J’s judgment id at para 142.
[156]
The
Employment Equity Act also
recognises that equality includes more
than just representivity. See, for example,
sections 13
and
15
.
[157]
See
generally Crenshaw “Mapping the Margins: Intersectionality,
Identity Politics, and Violence against Women of Color”
(1991)
43
Stanford
Law Review
1241.
[158]
Van
Heerden
above
n 23 at paras 33 and 36. See also Brickhill above n 148 at
2013 and De Vos above n 149 at 88.
[159]
See
McGregor “Affirmative Action on Trial – Determining the
Legitimacy and Fair Application of Remedial Measures”
(2013) 4
TSAR
650
at 655.
[160]
See
Sachs J’s judgment in
Van
Heerden
above
n 23 at para 152.
[161]
United
Democratic Movement v President of the Republic of South Africa and
Others (No 2)
[2002]
ZACC 21
;
2003 (1) SA 495
(CC);
2002 (11) BCLR 1179
(CC) at paras 12
and 83.
[162]
Chaskalson
“Human Dignity as a Foundational Value of Our Constitutional
Order”
(2000) 16
SAJHR
193
at 201. Chaskalson also quotes with approval Lord Steyn’s
observation that—
“
[c]ourts
will sometimes have to balance the protection of the fundamental
rights of individuals against the general interests
of the
community. Individualised justice and the stability needed in
any democratic society may be in contention. . . .
Often
courts will have to choose between competing values and make
sophisticated judgments as to their relative weights.”
[163]
Woolman
and Botha “Limitations” in Woolman et al (eds)
Constitutional
Law of South Africa
Service
3 (2011) vol 2(2) at 34–99 notes that, when confronted with
“hard choices”, the Court—
“
must
not view the choice of one good over another good in hard cases as
arbitrary. Instead, it must be candid about the
reasons for
its choices and hope that its candour about the reasons for its
choices ultimately reflects the exercise of good
judgment.”
[164]
Section
7(3) of the Constitution provides that “[t]he rights in the
Bill of Rights are subject to the limitations contained
or referred
to in section 36, or elsewhere in the Bill”, while section
36(2) sets out that “[e]xcept as provided
in subsection (1) or
in any other provision of the Constitution, no law may limit any
right entrenched in the Bill of Rights.”
Subsection (1)
states:
“
The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including—
(a) the nature of the right;
(b) the importance of the
purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e) less restrictive means to
achieve the purpose.”
[165]
Midi
Television (Pty) Ltd t/a e-TV v Director of Public Prosecutions,
Western Cape
[2007]
ZASCA 56
;
2007 (5) SA 540
(SCA) at para 9. See also
Holomisa
v Khumalo and Others
2002
(3) SA 38
(T) at 68B-D and Rautenbach “Introduction to the
Bill of Rights” in
Bill
of Rights Compendium
Service
22 (LexisNexis, Durban 2008) at 1A–95
.
[166]
S
v Manamela and Another (Director-General of Justice intervening)
[2000]
ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC) at para 32.
[167]
See,
for example,
South
African Broadcasting Corporation Ltd v National Director of Public
Prosecutions and Others
[2006]
ZACC 15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR 167
(CC) at paras
125-6; Sachs J’s judgment in
Van
Heerden
above
n 23 at para 140;
Carmichele
above
n 55 at para 43; and
Kyalami
Ridge
above
n 55 at para 102.
[168]
Carmichele
above
n 55 at para 43.
[169]
Above
n 23 at para 140.
[170]
Independent
Newspapers Holdings Ltd and Others v Suliman
[2004]
ZASCA 57
;
[2004] 3 All SA 137
(SCA) at para 44.
[171]
Carmichele
above
n 55.
[172]
Section
15(2)(b).
[173]
Above
n 23 at para 24.
[174]
See,
for example, Albertyn and Goldblatt “Equality” in
Woolman et al (eds)
Constitutional
Law of South Africa
Service
3 (2011) vol 2(2) at 35–9 commenting on the approach to
dignity taken in
Harksen
above
n 17
.
[175]
Section
1 of the Constitution.
[176]
Ackermann
above n 135 at 100. See also
S
v Dodo
[2001]
ZACC 16
;
2001 (3) SA 382
(CC);
2001 (5) BCLR 423
(CC) (
Dodo
)
at para 38 and
S
v Makwanyane and Another
[1995]
ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) (
Makwanyane
)
at para 26.
[177]
Khumalo
and Others v Holomisa
[2002]
ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) (
Khumalo
)
at para 27.
[178]
See
O’Regan J’s judgment in
Makwanyane
above
n 176 at para 328. See also McConnachie “Human Dignity,
‘Unfair Discrimination’ and Guidance”
(2014)
Oxford
Journal of Legal Studies
1
at 9, who observes that—
“
if
human dignity is an assertion of human beings’ moral equality
then it follows that most, if not all, serious wrongs against
human
beings are also inconsistent with the respect that is owed to others
as moral equals”.
[179]
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
[2000]
ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 35.
[180]
National
Coalition
above
n 145 at para 28:
“
It
is clear that the constitutional protection of dignity requires us
to acknowledge the value and the worth of all individuals
as members
of society.”
[181]
Dodo
above
n 176.
[182]
Khumalo
above
n 177.
[183]
See,
for example,
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
[1995]
ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at paras 49-50,
which says in part:
“
Human
dignity cannot be fully valued or respected unless individuals are
able to develop their humanity, their ‘humanness’
to the
full extent of its potential. Each human being is uniquely
talented. Part of the dignity of every human being
is the fact
and awareness of this uniqueness. An individual’s human
dignity cannot be fully respected or valued unless
the individual is
permitted to develop his or her talents optimally.”
[184]
See
MEC
for Education, KwaZulu-Natal and Others v Pillay
[2007]
ZACC 21
;
2008 (1) SA 474
(CC);
2008 (2) BCLR 99
(CC) (
Pillay
)
at para 150 and
Port
Elizabeth Municipality v Various Occupiers
[2004]
ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) at para 37.
[185]
Pillay
id
at para 53, which affirms the “importance of community to
individual identity and hence to human dignity”, and
Bernstein
and Others v Bester and Others NNO
[1996]
ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at para 65.
See also Ackermann above n 135 at 109, who makes this point
specifically with reference to dignity.
[186]
See,
for example, Cowen “Can ‘Dignity’ Guide South
Africa’s Equality Jurisprudence?”
(2001) 17
SAJHR
34
at 51 which discusses a criticism of dignity that because dignity is
individualistic, it is not well-equipped to meet the goals
of
equality. The author concludes, however, that because dignity
also encompasses collective concerns and recognises that
human worth
and material position may be related, dignity can encourage rather
than hamper a substantive equality analysis.
[187]
Dawood
above
n 179 at para 30.
[188]
Makwanyane
above
n 176 at para 224.
[189]
Khosa
and Others v Minister of Social Development and Others; Mahlaule and
Another v Minister of Social Development
[2004]
ZACC 11
;
2004 (6) SA 505
(CC);
2004 (6) BCLR 569
(CC) at para 74.
In commentary on this case
,
Woolman
“Dignity” in Woolman et al (eds)
Constitutional
Law of South Africa
Service
3 (2011) vol 2(2) at 36–17 observes:
“
This
virtuous circle [between enhancement of individual freedom, social
development, and individual capabilities] would appear
to be what
the Constitutional Court in
Khosa
has
in mind when it ties the well-being of the worst off to the
well-being of the wealthy. The enhancement of individual
capabilities of the poorest members of our political community
enhances the development of South Africa as a whole. Or
put
slightly differently, the greater the ‘agency’ of the
least well-off members of our society, the greater the
‘agency’
of ‘all’ the members of our society. This gloss on
Khosa
emphasises
not the subjective sense of well being that the well-off might
experience by tying their well-being to that of
the poor.
Rather it emphasises an increase in the objective sense of
well-being that flows from the enhancement of the
agency of each
individual member of our society.”
[190]
Cowen
above n 186 at 50.
[191]
Woolman
above n 189 at 36–63, which refers to Kant’s four
variations on dignity. At 36–15 Woolman refers
to John
Rawls’ understanding of Kant, in the context of political
philosophy:
“
[E]veryone
recognises everyone else as not only honouring their obligation of
justice and duties of virtue, but also, as it were,
legislating law
for their moral commonwealth. For all know of themselves and
of the rest that they are reasonable and rational,
and that this
fact is mutually recognised.”
[192]
In
National
Coalition
above
n 145 at para 30 this Court recognised that “the rights of
equality and dignity are closely related”.
[193]
Prinsloo
v Van der Linde and Another
[1997]
ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6) BCLR 759
(CC) at para 31.
Ackermann above n 135 develops this argument. See McConnachie
above n 178 at 11 for criticism of
this position in relation to
unfair discrimination.
[194]
Cowen
above n 186 at 40 and Rautenbach above n 165 at 1A–112.
See also Chaskalson above n 162 at 202 3:
“
To
be consistent with the underlying values of the Constitution,
equality must also include equality of worth, requiring everyone
be
treated with equal respect and with equal concern . . . .
On this construction of the equality clause
the relationship between
equality and dignity is clear. It recognises a substantive
content in equality and this is the
approach that the Constitutional
Court has taken to the interpretation and application of the
equality clause of our Constitution.”
See
further
Egan v Canada
[1995]
2 SCR 513
at para 36, where Heureux-Dubé
J noted that equality “means nothing if it does not represent
a commitment to recognising
each person’s equal worth as a
human being, regardless of individual differences.”
[195]
According
to the International Convention on the Suppression and Punishment of
the Crime of Apartheid, UN General Assembly Resolution
3068 XXVIII
of 30 November 1973.
[196]
In
Walker
above
n 147 at para 81 this Court affirmed:
“
No
members of a racial group should be made to feel that they are not
deserving of equal ‘concern, respect and consideration’
and that the law is likely to be used against them more harshly than
others who belong to other race groups.” (Footnote
omitted.)
See De Vos above n 149 at 93;
Brickhill above n 148 at 2013, discussing a measure which “creates
new disadvantage”
for the unfavoured group; and Ackermann
above n 135 at 359.
[197]
See
Ackermann id at 360. See also
Du
Preez v Minister of Justice and Constitutional Development and
Others
2006
(5) SA 592
(E) at para 30, which finds unfair discrimination where
an affirmative action policy was so inflexible that it effectively
prevented
all white men from appointment.
[198]
Ferreira
above
n 183 at para 49.
[199]
Section
15(4).
[200]
In
both interviews Ms Barnard scored significantly higher than other
candidates, and both interview panels recommended her as
the “best
candidate for the post”.
[201]
Section
12 of the Constitution.
[202]
Sections
205 and 206.
[203]
Section
197.
[204]
See
also
Coetzer
and Others v Minister of Safety and Security
2003
(3) SA 368
(LC) (
Coetzer
)
at paras 31-2.
[205]
See
Stoman
above
n 146 at 482G and Pretorius “Legal Evaluation of Affirmative
Action in South Africa” (2001) 26
Journal
for Juridical Science
12
at 21.
[206]
Stoman
id
at 481H-I.
[207]
Id
at 482C-E.
[208]
Dupper
“Affirmative Action: Who, How and How Long?”
(2008) 24
SAJHR
425
at 438.
[209]
Stoman
above
n 146 at 482F-G; Dupper id at 437; and
McInnes
v Technikon Natal
2000
(21) ILJ 1138 (LC) at 1150.
[210]
Stoman
id
at 482H-I.
[211]
The
division to which Ms Barnard applied is responsible for
investigating broad-spectrum complaints by the public and public
office-bearers concerning police services including inadequate
investigations, improper police conduct and corruption.
[212]
Coetzer
above
n 204.
[213]
The
National Instruction at rule 13(7) provides that the National
Commissioner may “direct that the post be readvertised”.
[214]
Section
5(1) of PAJA. See also Olivier JA’s minority judgment in
Transnet
Ltd v Goodman Brothers (Pty) Ltd
[2000]
ZASCA 62
;
2001 (1) SA 853
(SCA) (
Goodman
Brothers
)
at para 42:
“
The
right to be furnished with reasons for an administrative decision is
the bulwark of the right to just administrative action.”
Baxter above n 116, written
before the new Constitution, discusses the right to reasons at 228:
“
In
the first place, a duty to give reasons entails a duty to
rationalise
the
decision. Reasons therefore help to structure the exercise of
discretion, and the necessity of explaining
why
a
decision is reached requires one to address one’s mind to the
decisional referents which ought to be taken into account.
Secondly, furnishing reasons satisfies an important desire on the
part of the affected individual to know why a decision was
reached.
This is not only fair: it is also conducive to public confidence in
the administrative decision-making process.
Thirdly –
and probably a major reason for the reluctance to give reasons –
rational criticism of a decision may only
be made when the reasons
for it are known. This subjects the administration to public
scrutiny and it also provides an
important basis for appeal or
review. Finally, reasons may serve a genuine educative
purpose, for example where an applicant
has been refused on grounds
which he is able to correct for the purpose of future
applications.” (Footnotes omitted.)
This passage has been quoted
with approval in
Cape Bar Council
above n 116 at para 46 and
Goodman Brothers
at para 5.
[215]
I
note, however, that to argue that it is administrative action an
applicant would need to take
Gcaba
above
n 72 into account. At para 66, this Court noted that,
usually, a decision not to appoint or promote an employee
is a
“quintessential labour-related issue”, but that in
exceptional circumstances it could fall within the ambit
of
administrative action if the decision has public impact that extends
beyond the applicant herself.
[216]
Above
n 116. In this case, the Supreme Court of Appeal considered
circumstances in which multiple candidates of different
racial
backgrounds were interviewed for three vacancies in the judiciary.
The JSC put forward only one of these candidates
– a black man
– and declined to fill the other positions. The Cape Bar
Council subsequently brought a complaint
against the JSC. One
of its primary arguments was that the JSC had no reason for not
filling the other vacancies, which
rendered its decision irrational
and unconstitutional.
[217]
Id
at para 43, citing sections 195 and 239(b) of the Constitution.
[218]
Id,
citing
Mphahlele
v First National Bank of SA Ltd
[1999]
ZACC 1
;
1999
(2) SA 667
(CC);
1999 (3) BCLR 253
(CC) at para 12.
[219]
Phambili
Fisheries
above
n 50 at paras 40 and 44. See also
Nomala
v Permanent Secretary, Department of Welfare and Another
2001
(8) BCLR 844
(E) at 856.
[220]
In
Bel
Porto School Governing Body v Premier, Western Cape
[2002]
ZACC 2
;
2002
(3) SA 265
(CC);
2002 (9) BCLR 891
(CC) at para 159, Mokgoro J and Sachs J’s
judgment states:
“
The
duty to give reasons when rights or interests are affected has been
stated to constitute an indispensable part of a
sound
system
of judicial review. Unless the person affected can discover
the reason behind the decision, he or she may be unable
to tell
whether it is reviewable or not and so may be deprived of the
protection of the law.”
This seems pertinent
considering the overall intention of the Constitution to foster a
culture of justification. As stated
in Mureinik “A
Bridge to Where? Introducing the Interim Bill of Rights”
(1994) 10
SAJHR
31
at 32:
“
If
the new Constitution is a bridge away from a culture of authority,
it is clear what it must be a bridge to. It must lead
to a
culture of justification – a culture in which every exercise
of power is expected to be justified; in which the leadership
given
by government rests on the cogency of the case offered in defence of
its decisions, not the fear inspired by the force
at its command.
The new order must be a community built on persuasion, not
coercion.”
[221]
At
[69].
[222]
At
[104], [121] and [123].
[223]
Stoman
above
n 146 notes that it was useless for the applicant to have complained
about procedural errors in the appointment process
because
ultimately—
“
[t]he
applicant [was] well aware of the main or only reason why the fourth
respondent was promoted and appointed instead of him.
The
respondents [were] also forthright about this fact.”
[224]
Labour
Court judgment above n 6 at para 1.
[225]
Supreme
Court of Appeal judgment above n 1 at para 2.
[226]
Section
34 provides:
“
Everyone
has the right to have a dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[227]
Everfresh
above
n 55 at para 52.
[228]
Prince
v President, Cape Law Society, and Others
[2000]
ZACC 28
;
2001 (2) SA 388
(CC);
2001 (2) BCLR 133
(CC) at para 22.
[229]
Labour
Court judgment above n 6 at para 33.
[230]
Id
at para 35.
[231]
Gordon
v Department of Health, Kwazulu-Natal
[2008]
ZASCA 99
;
2008 (6) SA 522
(SCA).
[232]
Harksen
above
n 17. In
Harksen
this
Court held that discrimination based on a listed ground must be
presumed to be unfair unless it is justified under the limitation
clause
.
[233]
Fischer
and Another v Ramahlele and Others
[2014]
ZASCA 88
;
2014 (4) SA 614
(SCA) (
Fischer
v Ramahele
)
at para 13.
[234]
Barkhuizen
v Napier
[2007]
ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) at para 39.
[235]
CUSA
above
n 101 at para 67.
[236]
Id
at para 68.
[237]
Fischer
v Ramahlele
above
n 233 at para 14.
[238]
Section
9(2) provides:
“
Equality
includes the full and equal enjoyment of all rights and freedoms.
To promote the achievement of equality, legislative
and other
measures designed to protect or advance persons or categories of
persons, disadvantaged by unfair discrimination may
be taken.”
[239]
Section
6(2)(a) provides:
“
It
is not unfair discrimination to take affirmative action measures
consistent with the purposes of this Act.”
[240]
National
Union of Metalworkers of SA v Vetsak Co-operative Ltd and Others
[1996]
ZASCA 69
;
1996 (4) SA 577
(SCA) at 589B-C. See also
Old
Mutual Life Assurance Co SA Ltd v Gumbi
[2007]
ZASCA 52
;
2007 (5) SA 552
(SCA).
[241]
Labour
Appeal Court judgment above n 2 at para 38.
[242]
Id
at para 30.
[243]
National
Education Health and Allied Workers Union v University of Cape Town
and Others
[2002]
ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) (
NEHAWU
)
at paras 30-1.