Solidarity and Others v Department of Correctional Services and Others (CCT 78/15) [2016] ZACC 18; (2016) 37 ILJ 1995 (CC); 2016 (5) SA 594 (CC); [2016] 10 BLLR 959 (CC); 2016 (10) BCLR 1349 (CC) (15 July 2016)

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[2016] ZACC 18
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Solidarity and Others v Department of Correctional Services and Others (CCT 78/15) [2016] ZACC 18; (2016) 37 ILJ 1995 (CC); 2016 (5) SA 594 (CC); [2016] 10 BLLR 959 (CC); 2016 (10) BCLR 1349 (CC) (15 July 2016)

Heads of arguments

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 78/15
In the matter between:
SOLIDARITY
First
Applicant
P J
DAVIDS
Second
Applicant
C F
FEBRUARY
Third
Applicant
A J
JONKERS
Fourth
Applicant
L J
FORTUIN
Fifth
Applicant
G M
BAARTMAN
Sixth
Applicant
D S
MERKEUR
Seventh
Applicant
T S
ABRAHAMS
Eighth
Applicant
D R
JORDAN
Ninth
Applicant
J J
KOTZE
Tenth
Applicant
D M A
WEHR
Eleventh
Applicant
and
DEPARTMENT OF CORRECTIONAL
SERVICES
First
Respondent
MINISTER OF CORRECTIONAL
SERVICES
Second
Respondent
NATIONAL COMMISSIONER, DEPARTMENT
OF CORRECTIONAL
SERVICES
Third
Respondent
MINISTER OF
LABOUR
Fourth
Respondent
POLICE AND PRISONS CIVIL RIGHTS
UNION
First
Amicus Curiae
SOUTH AFRICAN POLICE
SERVICE
Second
Amicus Curiae
Neutral citation:
Solidarity v Department of Correctional
Services
[2016] ZACC 18
Coram:
Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Nkabinde
J, Nugent AJ, Van der Westhuizen J and Zondo J
Judgments:
Zondo J (majority): [1] to [95]
Nugent AJ (minority): [96] to [134]
Heard on:
18 November 2015
Decided on:
15 July 2016
Summary:
Validity of employment equity plan –
non-compliance with section 42 of Employment Equity Act –
failure to take into
account demographic profile of both regional and
national economically active population in setting numerical targets
and assessing
representivity –
Barnard
principle –
Also applies to African, Coloured and Indian candidates as well as to
men, women and people with disabilities
– employee may be
denied appointment if he or she belongs to a category of persons that
is already adequately represented
at relevant occupational level –
wrong benchmark used to set targets and determine representation –
Plan not declared
invalid – refused to appoint candidates –
unfair discrimination based on race or gender – numerical
targets not
quotas – refusal to appoint set aside and
appropriate relief granted
ORDER
On appeal from the Labour Appeal Court:
1. The late delivery of the first to third respondents’ written
submissions is condoned.
2. Leave to appeal is granted.
3. Subject to paragraph 4, the appeal is upheld.
4. The appeals by Mr PJ Davids, Mr AJ Jonkers and Ms LJ Fortuin are
dismissed.
5. The orders of the Labour Court and Labour Appeal Court are set
aside and that of the Labour Court is replaced with the following:
“(a) The claims by Mr PJ Davids, Mr AJ Jonkers and Ms LJ
Fortuin are dismissed.
(b) The decisions of the Department of Correctional Services not to
appoint the rest of the individual applicants to the posts
in which
they respectively sought to be appointed constituted unfair
discrimination and unfair labour practices and are set aside.
(c) Those individual applicants who had applied for appointment to
posts that remain vacant to this day or that are presently vacant

even if they had subsequently been filled must be appointed to those
posts and be paid remuneration and accorded the benefits attached
to
those respective posts.
(d) Those individual applicants who had applied for appointment to
posts that were subsequently filled and are presently filled
must be
paid the remuneration and be accorded the benefits attached to those
respective posts.
(e) The orders in (c) and (d) shall operate with retrospective effect
from the date with effect from which the individual applicants
would
have been appointed to the respective posts had they not been denied
appointment.
(f) There is no order as to costs.”
6. There is no order as to costs in this Court.
JUDGMENT
ZONDO J (Moseneke DCJ, Jafta J, Khampepe J, Nkabinde J and Van der
Westhuizen J concurring)
Introduction
[1] The applicants have brought an application for leave to appeal
against a decision of the Labour Appeal Court (LAC).
[1]
In terms of that decision the applicants’ appeal against
a decision of the Labour Court was dismissed.  The decision
of
the Labour Court related to a dispute between the parties on whether
the Employment Equity Plan
[2]
of the first respondent, the Department of Correctional Services
(Department), for the period 2010-2014 (2010 EE Plan) was invalid.

In addition, the Department’s refusal to appoint the
second and further applicants to certain posts constituted unfair

discrimination and unfair labour practices and, if so, what the
appropriate remedy was, was in issue.  The Labour Court had

concluded that the 2010 EE Plan did not comply with certain
provisions of the Employment Equity Act
[3]
(EE Act) but had not declared the 2010 EE Plan invalid.  It
had also concluded that the Department’s decisions
not to
appoint certain of the individual applicants constituted unfair
discrimination but did not grant the individual applicants
any
individual relief.
Parties
[2]  The first applicant is Solidarity, a registered trade
union.  Some of its members are employed by the Department.

The second to the eleventh applicants are employees of the
Department.  They are also members of Solidarity.  Except

for the second applicant who is a White person, the individual
applicants are Coloured people.  Some of the individual
applicants
are men whereas others are women.  The individual
applicants are all based in the Western Cape.
[3]  The first respondent is the Department.  The second
respondent is the Minister of Correctional Services.  The
third
respondent is the National Commissioner of the Department of
Correctional Services (National Commissioner).  The fourth

respondent is the Minster of Labour.  She is the Minister
responsible for the administration of the EE Act.  The Police

and Prisons Civil Rights Union, a registered trade union, was
admitted as the first
amicus curiae
(friend of the
court).  Some of the employees in the Department are members of
this trade union.  The South African Police
Service was admitted
as the second
amicus curiae
.  We are very grateful to the
two
amici
for the contribution they made to the debate.
Background
[4] An employment equity plan is a plan provided for in section 20(1)
of the EE Act which an employer prepares, adopts and
implements
in order to achieve employment equity in its workforce.  The
first employment equity plan of the Department was
for the period
2000-2004.  The second was for the period 2006 2009.
In 2010 the Department adopted its 2010 EE
Plan.  That Plan was
adopted after extensive consultations with a number of stakeholders
including recognised trade unions.
It would appear that most of
the recognised trade unions accepted the 2010 EE Plan.
Solidarity was not one of the recognised
trade unions in the
Department.
[5] The 2010 EE Plan set certain numerical targets to be attained
within the five year period of the plan in order to achieve
employment equity in the Department’s workforce.  The
numerical targets set in the 2010 EE Plan were:
“9.3% for White males and females;
79.3% for African males and females;
8.8% for Coloured males and females;
2.5% for Indian males and females.”
The numerical targets in the 2010 EE Plan were based on the mid-year
population estimates, 2005, issued by Statistics South Africa.
[6]  In 2011 the Department advertised certain posts in the
Western Cape.  The individual applicants applied for appointment

to some of the posts.  Except for Mr AJ Jonkers who
was not recommended, all the other individual applicants were

recommended for appointment by the respective interview panels.
Except for Ms LJ Fortuin who was subsequently appointed
to
the position for which she had applied, the individual applicants
were denied appointment.  In the case of males, the basis
for
this decision was that they were Coloured persons and Coloured
persons were already overrepresented in the relevant occupational

levels.  In the case of women, the basis was that women were
already overrepresented in the relevant occupational levels.

This meant that appointing the individual applicants to the positions
for which they had applied would not be in accordance with
the
2010 EE Plan.
[7]  The 2010 EE Plan made provision for the National
Commissioner to deviate from the targets in the 2010 EE Plan in
certain
circumstances.  A deviation meant that the National
Commissioner could approve the appointment of a candidate from a
non designated
group in certain circumstances despite the fact
that the appointment of a candidate from a designated group should be
preferred
as it would advance the targets of the 2010 EE Plan.
This would occur where a candidate has special skills or where
operational
requirements of the Department dictated that that
candidate be appointed.  In this case no deviation was
authorised.
The effect of the provisions relating to the
deviations is that they enabled the Department not to make
appointments that advanced
the numerical targets in certain
circumstances.  In other words, although the appointment of
candidates that advanced the
pursuit of the numerical targets of the
2010 EE Plan, and, therefore, the achievement of equitable
representation, was the preferred
route, exceptions to that approach
were provided for.  That is the thrust of the provisions of the
2010 EE Plan regarding
the deviations.
[8]  Some of the important features of the Department’s
2010 EE Plan are set out below.  In an interpretation of
a
graphical representation provided in the Department’s 2010 EE
Plan, the Department said:
“There has been steady progress since the development and
implementation of the 2006-2009 EE Plan.
Female representation at senior management moved from 25% to 30% in
June 2009.
Indians have benefited at SMS level as males stand at 3.5% and
females at 1.2%, thus overrepresented.
Whites have gone up from 12% to 13%.
Ratio for Africans is also still far from 50-50 and in fact the
indication is that more males are still being appointed at this

point.
Appointment of level 13 and 14 has to be closely monitored and should
rather focus on women to balance the scales and move towards
50:50
representation.”
[9]  The Department’s global progress made on
representation at salary levels 3-6 was reflected as follows:
“
Level 3: National Target
has been reached for Africans (88%), Coloureds stand at 10%, Indians
stand at 2% while Whites are at 1.4%.
Level 4: Africans stand at 65%,
Coloureds at 13%, Whites at 20%, Indians at 1%.
Level 5: Africans at 85%, Whites
at 2%, Coloureds at 12% and Indian at 2%.
Level 6: Africans at 75%, Whites
at 8%, Coloured at 15% and Indians at 2%.”
The Department’s global progress made on representation at
salary levels 7-12 was reflected as follows:
“
l
White
males and Coloureds are grossly overrepresented at salary level 7-12.
·
White males and
females are grossly overrepresented at ASD (9 & 10 salary level)
by 9% and 4% respectively, while Coloured males
are overrepresented
by 4% and females by 1%.
·
At levels 11 and
12 both White and Coloured males are overrepresented by 5%.  Focus
at salary levels 11 and 12 should be only
on African females.”
[10] It was identified that some of the limitations and shortcomings
of the preceding Employment Equity Plans of the Department
were that:
“Recruitment and selection processes were not always EE Plan
driven as some appointments that were made were not compliant
with
the EE targets.
Lack of commitment and willingness to implement the approved EE Plan
targets by some Managers.
Failure to sanction Managers resulting in non-compliance with the EE
Plan (section 24(1)(c)).”
[11] In the definition section of the 2010 EE Plan the term
“Affirmative Action” is defined as meaning—
“corrective steps that must be taken in order that those who
have been historically disadvantaged by unfair discrimination
are
able to derive full benefits from an equitable employment
environment.”
The term “Broad Representation” is defined as
referring to—
“the achievement of a Public Service that is inclusive of all
historically disadvantaged groups in a manner that represents
the
make-up of the population within all occupational classes and all
post levels of the Public Service.”
[12] The Department’s 2010 EE Plan included its Affirmative
Action Programme (AA Programme).  In the introduction
to
the AA Programme, the Department
inter alia
wrote:
“The Department of Correctional Services acknowledges
the
current lack of reflection of demographics of the country in its
workforce
and the inequitable representation of employees from
designated groups that continue to prevail within the organisation.”

(Emphasis added.)
[13] Six principles were set out in the AA Programme as the
principles that would guide the implementation of the programme. They

were:
“2.1 Transparency
The programme shall be open to scrutiny and information pertaining
thereto should be easily accessible to all including recognised
and
organised labour.
2.2 Inclusiveness
While the programme targets employees from the designated groups,
the department acknowledges the need to accommodate required scarce

skills areas, the need for mentoring and coaching and as such
non-designated employees would not be excluded
.  Partnering
with relevant stakeholders is therefore critical to ensure the
overall success of the programme.
2.3 Integration with strategic interface
The programme shall support the strategic and operational goals of
the DCS and shall form an integral part of the Integrated Human

Resources Strategy.
2.4 Relative Disadvantage
The programme shall recognise that even among the designated groups,
varying levels of representativity do exist within the organisation

e.g. Coloured males in relation to African males, White females in
relation to Coloured females and African females in general
in
relation to the representation needs of the organisation as per the
DCS’ Employment Equity Plan.  Interventions that
are
developed must therefore ensure equitable representation.
2.5 Promotion and appointments
In striving to address disparities in DCS as stipulated in paragraphs
2.4 supra, acknowledgement and consideration shall be given
to
disadvantaged employees within the DCS and only then shall
consideration be afforded to lateral entrants.
2.6 Conscious Capacity Building
Specific interventions would be implemented to deal with the
development of the previously disadvantaged groups as well as skills

transfer.”  (Emphasis added.)
[14] The AA Programme made it clear that its beneficiaries were the
following officials in the employ of the Department:
“TARGET GROUP
3.1 Women of all racial groups.
3.2 Persons with disabilities of all races.
3.3 Blacks (Africans, Coloureds and Indians).
Occupational categories and levels where under-representativity has
been identified in terms of the Departmental Employment Equity
Plan
will receive specific focus.”
[15] Some of the points made in the AA Programme were:
“Management and Monitoring of Appointments
·
All
appointments irrespective of occupational levels within the
Department shall be informed by the Departmental Employment Equity

Plan.
·
Entry
level recruitment shall be Employment Equity Plan driven.
·
Lists
of recommended candidates for Salary Levels 9-12 shall be forwarded
to the directorate Equity for compliance monitoring before
approval
by RC’s, DC HRV and CDC Corporate Services.
·
Lists
of short-listed candidates for Salary Levels 9-12 shall be checked by
Regional Managers EE for compliance and necessary guidance
at
regional level and by Director Equity at National Office.”
[16] On non-compliance/deviations, the following provisions appeared:
“NON-COMPLIANCE/DEVIATIONS
·
In the
event of any form of non-compliance or deviation, concerned managers
will be held accountable and action shall be taken by
the
Commissioner in line with section 24(1)(C) of the EE Act as a
requirement by the Department of Labour who are ‘watch
dogs’
on behalf of the public service.
·
The
National Commissioner has the prerogative to appoint any candidate in
accordance with the departmental Employment Equity Plan
and is the
only person who may deviate with valid documented reasons that will
stand the test in the court of law.”
Labour Court
[17] The applicants referred unfair labour practice disputes to the
Commission for Conciliation, Mediation and Arbitration (CCMA)
for
conciliation in terms of the Labour Relations Act
[4]
(LRA).  The basis of the disputes was that the Department’s
refusal to appoint each one of the individual applicants
on the
ground that they belonged to a race or gender that was already
overrepresented on the relevant occupational levels constituted

unfair discrimination and, therefore, an unfair labour practice.
The applicants also attacked the 2010 EE Plan as non-compliant
with
the EE  Act and as invalid.  The conciliation process was
unsuccessful.  The dispute was then referred to the
Labour Court
for adjudication as an unfair labour practice dispute.
[18] The applicants sought an order declaring that the Department’s
2010 EE Plan—
“1.1.1 failed to satisfy the requirements of an employment
equity plan within the contemplation of the EE Act, in particular

section  20; and/or
1.1.2 constituted a contravention of the prohibitions on race, gender
and/or sex discrimination within the contemplation of section
6 of
the EEA and its application in respect of the individual applicants
amounts to unfair discrimination.”
As an alternative to the above order, the applicants sought a
declaratory order that the Department’s 2010 EE Plan was—
“unreasonable and/or irrational and unlawful within the
contemplation of paragraphs (e)(iii), (f)(ii) and/or (k) of

section 6 of PAJA and, as a consequence,
2.1 review and set aside as unlawful the decision of the relevant
respondents to adopt, apply and implement the DCS Employment
Equity
Plan in the course of making personnel placement decisions.”
The applicants also sought the following orders in respect of the
individual applicants:
“3.1 that the relevant respondents promote or appoint the
individual applicants or
where the posts have been filled, grant them the benefits of
protective promotion;
3.2 the ordering of appropriate financial compensation; and
3.3 an order that the relevant respondents take steps to prevent the
recurrence of the alleged unfair discrimination.”
[5]
[19] The Labour Court concluded that the 2010 EE Plan did not comply
with the EE Act.  The Court held that section 42
of the EE
Act
[6]
meant that both the regional and national demographics had to be
taken into account in determining numerical targets.  However,

it said:
“I stress that the fact that national demographics must factor
into all employment equity plans provides for a safeguard
recognising
that [it] was the African majority in this country that were the most
severely impacted by the policies of apartheid.
However, that
regional demographics must be also considered, asserts the right of
all who comprise black persons in terms of the
EEA to benefit from
the restitutionary measures created by the EEA, and derived from the
right to substantive equality under our
Constitution.”
[7]
[20] The Court went on to express the view that, where the selection
and recruitment processes derived from the employment equity
policy
of the Department took no cognisance whatsoever of the regional
demographics of the Western Cape, this amounted to

discrimination which is not protected by section 6(2) of the EE
Act
[8]
or section 9(2) of the Constitution
[9]
.
It said that that was unfair
[10]
.
The Labour Court later said:
“I have found that the individual applicants who are black
employees in terms of the EEA have suffered unfair discrimination
in
that the selection process utilised to decide on their applications
for appointment to various posts was premised on the understanding

that regional demographics do not have to be taken into account in
setting targets at all occupational levels of the workforce
in DCS.
This policy and practice is not in line with the affirmative action
measures referred to in section 6(2)(a) of the
EEA.”
[11]
[21] The Labour Court dealt separately with the case of Mr Davids,
the only individual applicant who is not a Black person.
It
pointed out that Mr Davids had not been appointed to the level 8
position for which he had applied on the ground that White
males were
overrepresented in the relevant occupational level.  The Court
relied on the decision of this Court in
Barnard
[12]
to dismiss Mr Davids’ claim.  The Labour Court said:
“50.3 The
Barnard
matter, which binds this Court, held
that affirmative action measures are to do with substantive equality
and not individual rights
to equality and dignity;
50.4
Barnard
is also authority for the proposition that
persons in the position of the national commissioner of DCS have the
discretion to keep
posts vacant in order to comply with appointing
suitably qualified members of designated groups in line with their
employment equity
plan.”
[13]
[22] The Court also pointed out that the EE Act—
“allows for proportionality, balance and fairness when it
requires both national and regional demographics to be taken into

account.”
[14]
It later said:
“I trust that the DCS and its employees can ensure the
appropriate targets are set, factoring in the requirement.”
[15]
[23] The Labour Court did not conclude that the Black individual
applicants should be appointed or promoted to the positions for
which
they had applied.  No specific reason was given for its decision
not to do so.  About remedy, it said:
“In my judgment the most appropriate relief for the Court to
order in these circumstances is one that will benefit all employees

of DCS in the Western Cape who are black employees of the DCS and
members of the Coloured community in the future.”
[16]
The Labour Court then ordered the Department to take immediate steps
to ensure that both national and regional demographics are
taken into
account in respect of members of designated groups when setting
equity targets at all occupational levels of its workforce.
It
said it did not consider it appropriate to make a costs order.
Labour Appeal Court
[24] The applicants appealed to the Labour Appeal Court against the
decision of the Labour Court not to grant the individual applicants

relief and its failure to declare the 2010 EE Plan invalid.  The
respondents cross-appealed against the Labour Court’s
decision
that the 2010 EE Plan did not comply with the EE Act because it did
not take into account regional demographics in setting
numerical
targets.
[25] The Labour Appeal Court referred to an important passage in the
judgment of this Court in
Van Heerden
[17]
where, writing for the majority, Moseneke J said:
“When a measure is challenged as violating the equality
provision, its defender may meet the claim by showing that the
measure
is contemplated by section 9(2) in that it promotes the
achievement of equality and is designed to protect and advance
persons
disadvantaged by unfair discrimination.
It seems to
me that to determine whether a measure falls within section 9(2) the
inquiry is threefold.  The yardstick relates
to whether the
measure targets persons or categories of persons who have been
disadvantaged by unfair discrimination; the second
is whether the
measure is designed to protect or advance such persons or categories
of persons and the third requirement is whether
the measure promotes
the achievement of equality
.”
[18]
(Emphasis added.)
[26] The Court pointed out that Mr Brassey, who, together with
Ms Engelbrecht, appeared for the applicants in that Court,
had—
“focussed his submissions almost entirely on the argument that
the DCS plan embodied a quota system which had failed to take
account
of the individual circumstances of the appellants.”
[19]
It recorded:
“Mr Brassey pointed out that, from the very outset of the case
before the court a quo, appellants had emphasised that the
DCS plan
made provision for appointments, transfers or promotions within the
department ‘by reference to what we condemn
as quotas strictly
reflecting the demographic representativeness of the races and sexes
throughout South Africa.’”
[20]
[27] It went on to record the following submission by the then
Counsel for the appellants:
“Mr Brassey submitted further that the existence of this quota
system was reflected in the fact that Whites were to be preferred
for
appointment at certain levels with African and Coloured persons being
overlooked, notwithstanding the sustained history of
racial
oppression under apartheid.  By contrast, these groups were
surely to be beneficiaries of restitutionary measures under
the
Constitution and the EEA.  At other levels in the workforce, the
application of the plan meant that white males simply
could never be
promoted.  In developing this argument, Mr Brassey submitted
that the court a quo had ignored appellants’
central objection
to the DCS plan, that it was based upon ‘race and gender
norming’ without any proper regard to questions
of past
disadvantage.”
[21]
[28] The conclusion of the Court was that the deviations from the
2010 EE Plan rendered the numerical targets flexible.  For
this
reason, said the Court, the numerical targets were not quotas.
In support of this finding, the Labour Appeal Court

referred to the evidence of Mr Bonani, the Director for Equity and
Gender in the Department concerning how the Department approached

deviations.  It also said that there was supporting evidence
that the Commissioner had approved 13 deviations in the Western
Cape
during the period 2010 to 2013.  It said that this was also
recorded in the respondent’s statement of defence.
The
Court also pointed out that the applicants had not based their case
specifically on the decision to refuse deviation in individual
cases
but focussed rather on the plan itself which they contended operated
in a discriminatory fashion towards the individual applicants.
[29] The Labour Appeal Court pointed out that, since
Barnard
was concerned with the decision by the National Commissioner of the
South African Police Service not to appoint Captain Barnard
to
an advertised position, in that case this Court did not have to
examine the employment equity plan.  It said:
“But in this case, the three criteria which the court in
Van
Heerden
isolated in section 9(2) to test restitutionary
measures are directly relevant.  To recapitulate: the measure
should
target a category of beneficiaries disadvantaged by unfair
discrimination.  This is reflected in the very nature of the DCS

plan.  Secondly, the measure must be ‘designed to protect
or to advance such persons or categories of persons, and must
be
reasonably capable of obtaining the desired outcome’.”
[22]
[30] The Court observed that the 2010 EE Plan had a provision for
deviations from the numerical targets which could be implemented
in a
case where a rigid implementation of the plan could compromise
service delivery or where it would not be possible to appoint

suitably qualified people from designated groups to the relevant
occupational levels in the workforce. It said that, if rationally

implemented, the deviations ensured that the plan was not implemented
in a rigid fashion.  The Labour Appeal Court pointed
out
that the 2010 EE Plan was reasonably capable of obtaining its desired
outcome of a representative workforce which is suitably
qualified and
achieves service delivery.
[31] It was pointed out by the Court that in
Van Heerden
this
Court had held that the measure had to promote “the advancement
of equality”.  The Court said that that is
why the test
was to ensure that the plan did not impose disproportionate burdens
or—
“constitutes 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.”
[23]
It took the view that it was clear from the testimony of Mr Magagula
and Mr Bonani that this was the objective the Department
had in
mind when it developed its plan to ensure substantive equality for
those who suffered the most egregious forms of discrimination
under
apartheid.
[32] The Court said that a further consideration adding weight to the
respondents’ case was that the EE Act must be read
through the
prism of section 9(2).  It then said:
“Inevitably, on the reading we have given to section 9(2),
weight is accorded in the balancing act to the position of the

individual appellants even though there cannot be a blanket deference
to a decision to promote disadvantaged groups.  The
EEA however
recognises the need for balance.  In the first place, a person
appointed from a designated group must be suitably
qualified for the
position.  Secondly, where an individual applicant possesses
scarce or unique skills which are relevant
to the organisational
needs of the designated employer, these must be taken into account;
hence the prohibition against an absolute
bar to employment.
Thirdly, for reasons which will become apparent presently, a
consideration of regional demographics in
terms of section 42 of the
EEA may well come to the aid of categories of applicants who
otherwise were unduly burdened by the implementation
of the
plan.”
[24]
[33] The conclusion of the Court was that the 2010 EE Plan passed the
test required in terms of the EE Act reading it together
with the
Constitution.  It, accordingly, dismissed the appeal.
In this Court
Jurisdiction
[34] This Court has jurisdiction and nothing more needs to be said
about that.
Leave to appeal
[35] It is in the interests of justice to grant leave to appeal.
The matter raises important constitutional issues and the

interpretation of legislation enacted to give effect to section 9(2)
of the Constitution.  Both the Labour Court and Labour
Appeal
Court concluded that the Department’s 2010 EE Plan did not
comply with the EE Act but none of them declared the
Plan invalid.
The applicants persist in their contention that the two courts ought
to have gone one step further and declared
the 2010 EE Plan invalid.
They contend that those two Courts erred in failing to make that
order.
[36] The Labour Court concluded that the decisions not to appoint or
promote the individual applicants, other than the individual

applicant who is not Black, namely, Mr Davids, constituted
unfair discrimination but did not grant them any individual relief.

It gave no reasons for this decision.  The Labour Appeal
Court did not make an express finding to this effect.
A reading
of the judgment suggests that a conclusion to that effect may be
implied but that is far from certain.  The applicants’

case is reasonably arguable.  Therefore, there are reasonable
prospects of success.
The appeal
May the Barnard principle be applied against a black candidate?
[37] The applicants’ statement of case in the Labour Court was
drafted before this Court’s judgment in
Barnard
.
[25]
Part of the case that the applicants put up in that statement
suggests that as a matter of principle the Department had no
right in
law to refuse to appoint a candidate for appointment to a position by
reason of the fact that he or she was a Coloured
person or was a
woman.  There was also some suggestion by the applicants that an
employer could not do that against Coloured
people because they are
Black people which is one of the designated groups intended to be
beneficiaries of employment equity.
It is necessary to deal
with this issue because, if the
Barnard
principle may not be
used against a Black candidate or a woman, then that conclusion would
be fatal to the whole case of the Department
and it would not be
necessary to consider other aspects of the case other than remedy.
[38] The important question that arises is, therefore, whether the
Barnard
principle applies to African people, Coloured people,
Indian people, people with disabilities as well as women or whether
its application
is limited to White people.  Ms Barnard was
refused promotion on the basis that White people were already
overrepresented
in the occupational level to which she wanted to be
appointed.  This Court upheld this reason.  The question
is, therefore,
whether an employer may refuse to appoint an African
person, Coloured person or Indian person on the basis that African
people
or Coloured people or Indian people, as the case may be, are
already overrepresented or adequately represented in the occupational

level to which the particular African, Coloured or Indian candidate
seeks appointment.  The question also arises whether the
Barnard
principle applies to gender with the result that a man or woman could
be denied appointment to a position at a certain occupational
level
on the basis that men or women, as the case may be, are already
adequately represented or overrepresented at that level.
[39] In
Barnard
Moseneke ACJ, writing for the majority, said:
“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.”
[26]
[40] In my view the application of the
Barnard
principle is
not limited to White candidates.  Black candidates, whether they
are African people, Coloured people or Indian
people are also subject
to the
Barnard
principle.  Indeed, both men and women are
also subject to that principle.  This has to be so because the
transformation
of the workplace entails, in my view, that the
workforce of an employer should be broadly representative of the
people of South
Africa.  A workplace or workforce that is
broadly representative of the people of South Africa cannot be
achieved with an
exclusively segmented workforce.  For example,
a workforce that consists of only White and Indian managers and,
thus, excludes
Coloured people and African people or a senior
management that consists of African people and Coloured people only
and excludes
White people and Indian people or a senior management
that has men only and excludes women.  If, therefore, it is
accepted
that the workforce that is required to be achieved is one
that is inclusive of all these racial groups and both genders, the
next
question is whether there is a level of representation that each
group must achieve or whether it is sufficient if each group has
a
presence in all levels no matter how insignificant their presence may
be.  In my view, the level of representation of each
group must
broadly accord with its level of representation among the people of
South Africa.
[41] It would be unacceptable, for example, for a designated employer
to have a workforce of five hundred employees fifty of whom
occupy
senior management positions but only five of those senior management
positions are held by African people when twenty are
held by White
people, fifteen by Coloured people and ten by Indian people despite
the fact that in the population of South Africa,
African people are
by far the majority.  Such a workforce could not conceivably be
said to be broadly representative of the
people of South Africa.
[42] Why do I say that a designated employer is required to work
towards achieving a workforce that is broadly representative of
the
people of South Africa?  I say so because, upon a proper
construction of the EE Act read with the relevant provisions
of
the Constitution, the Public Service Act
[27]
and the Correctional Services Act,
[28]
that is what is required.  Section 9(2) of the Constitution
provides:
“(2) 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.”  (Emphasis added.)
Section 195 of the Constitution deals with the basic values and
principles which must govern public administration.  Section

195(2) provides that the principles in section 195(1) apply to
the administration in every sphere of government, organs of state

and state enterprises.  Section 195(1)(i) reads:
“Public administration must be broadly representative of the
South African people, with employment and personnel management

practices based on ability, objectivity, fairness and
the need to
redress the imbalances of the past to achieve broad representation.
”
(Emphasis added.)
[43] Section 196(4)(a),(d) and (e) of the Constitution gives the
Public Service Commission the powers to—
“(a) promote the principles and values in section 195,
throughout the public service;
. . .
(d) to give directions aimed at ensuring that personnel procedures,
promotions and dismissals comply with the values and principles;
(e) . . . to provide an evaluation of the extent to which the values
and principles set out in section 195 are complied with.”
[44] Section 11(1) of the Public Service Act provides that—
“[i]n the making of appointments and the filling of posts in
the public service due regard shall be had to equality and the
other
demographic values and principles enshrined in the Constitution.”
Section 11(2)(b) of the Public Service Act provides that, in the
making of any appointment in terms of section 9 in the public

service—
“the evaluation of persons shall be based on training, skills,
competence, knowledge
and the need to redress
, in accordance
with the Employment Equity Act, 1998 (Act No. 55 of 1998),
the
imbalances of the past to achieve a public service broadly
representative of the South African people including representation

according to race, gender and disability.
”  (Emphasis
added.)
[45] Section 96(3)(c) of the Correctional Services Act provides that—
“the assessment of persons for purposes of appointment and
promotion—
shall be based on level of training, relevant skills, competence and
the need to redress the imbalances of the past
in order to
achieve a Department broadly representative of the South African
population, including representation according to
race, gender and
disability.”  (Emphasis added.)
[46] Nobody can justifiably dispute that, although under apartheid
and racial discriminatory laws and practices all Black people

suffered hardships, the greatest hardships were suffered by the
African people.  Indeed, this much was recognised by the High

Court in
Motala
[29]
and by the Labour Court in this case.  Therefore, any corrective
measure, such as an employment equity plan or an affirmative
action
programme, cannot succeed in reversing the imbalances of the past if
it is based on the notion that Black people would be
equitably
represented in a workforce or in a particular occupational level if
there are enough Coloured people or Indian people
even if there are
no African people or there are only a few African people.
[47] The EE Act is a legislative measure contemplated in section
9(2) of the Constitution.  In part the Explanatory Memorandum

that accompanied the Bill that later became the EE Act read:
“Our history is of particular relevance to the concept of
equality.  The policy of apartheid, in law and in fact,
systematically
discriminated against black people in all aspects of
social life.  Black people were prevented from becoming owners
of property
or even residing in certain areas classified as ‘white’,
which constituted 90% of the landless of South Africa; senior
jobs
and access to established schools and universities were denied to
them; civic amenities, including transport systems, public
parks,
libraries and many shops were also closed to black people.
Instead, separate and inferior facilities were provided.
The
deep scars of this appalling programme are still visible in our
society.  It is in the light of that history and the enduring

legacy that it bequeathed that the equality clause needs to be
interpreted.”
[30]
[48] Finally, the preamble to the EE Act reads in part:
“Recognising—
that as a result of apartheid and other discriminatory laws and
practices, there are disparities in employment, occupation and
income
within the national labour market; and that those disparities create
such pronounced disadvantages for certain categories
of people that
they cannot be redressed by repealing discriminatory laws,
Therefore in order to—
promote the constitutional right to equality
and the exercise
of true democracy;
eliminate unfair discrimination in employment
;
ensure the implementation of employment equity to redress the
effects of discrimination
;
achieve a diverse workforce broadly representative of our people
;
promote economic development and efficiency in the workforce
;
and
give effect to the obligations of the Republic as a member of the
International Labour Organisation.”  (Emphasis added.)
[49] The EE Act, like all legislation, must be construed consistently
with the Constitution.  Properly interpreted the EE Act

seeks to achieve a constitutional objective that every workforce or
workplace should be broadly representative of the people of
South
Africa.  The result is that all the groups that fall under
“Black” must be equitably represented within
all
occupational levels of the workforce of a designated employer.
It will not be enough to have one group or two groups
only and to
exclude another group or other groups on the basis that the high
presence of one or two makes up for the absence or
insignificant
presence of another group or of the other groups.  Therefore, a
designated employer is entitled, as a matter
of law, to deny an
African or Coloured person or Indian person appointment to a certain
occupational level on the basis that African
people, Coloured people
or Indian people, as the case may be, are already overrepresented or
adequately represented in that level.
On the basis of the same
principle an employer is entitled to refuse to appoint a man or woman
to a post at a particular level
on the basis that men or women, as
the case may be, are already overrepresented or adequately
represented at that occupational
level. However, that is if the
determination that the group is already adequately represented or
overrepresented has a proper basis.
Whether or not in this case
there was a proper basis for that determination will be dealt with
later.
Did the numerical targets constitute quotas?
[50] The applicants contended that the numerical targets contained in
the Department’s 2010 EE Plan constituted quotas and
not
numerical targets.  As I understand the applicants’ case,
if, indeed, the targets contained in the 2010 EE Plan
were quotas,
that would support not only the contention that the 2010 EE Plan did
not comply with the EE Act and was, therefore,
invalid but also that
would support their contention that the decisions not to appoint or
promote the individual applicants constituted
unfair discrimination.
This would be so, because it would mean that the individual
applicants were denied appointments or
promotions on the basis of
quotas which should not have featured at all in the decision-making
process.
[51] In
Barnard
this Court, although not defining a quota
exhaustively, held that one of the distinctions between a quota and a
numerical target
is that a quota is rigid whereas a numerical target
is flexible.
[31]
Therefore, for the applicants to show that the numerical targets
constituted quotas, they need to first show that they were
rigid.
The applicants submitted that the targets were rigid and were applied
rigidly.  The 2010 EE Plan made provision
for deviation
from the Plan and, therefore, for deviation from the targets in
certain circumstances.  These include cases
where a candidate
whose appointment would not advance the achievement of the targets of
the 2010 EE Plan but could, nevertheless,
be appointed if
he or she had scarce skills or where the operational requirements of
the Department were such that a deviation
from the targets was
justified or was warranted.
[52] The applicants acknowledged that the 2010 EE Plan made provision
for deviations from the targets set by the Plan.  They
submitted
that the provision for deviations in the limited circumstances in
which deviations were permitted could not save the
targets from being
held to be quotas.  In support of their contention, the
applicants pointed out that only the Commissioner
could authorise a
deviation, that the 2010 EE Plan provided that managers who did not
ensure compliance with it would be sanctioned.
They contended that no
provision was made in the Plan for deviations to be invoked by the
candidates who were aggrieved.
[53] Once it is accepted that the 2010 EE Plan contained a provision
for deviations from the targets of the Plan, then, in my view
the
targets cannot be said to be rigid, particularly where it cannot be
said that the situations in which deviations are permitted
are
situations that do not occur in reality.  The evidence given at
the trial on behalf of the Department revealed, for example,
that
scarce skills included cases of candidates who are doctors and those
who are social workers.  A Department such as the

Department of Correctional Services must have a need
for many social workers.  Deviations could be made in
regard to,
among others, posts for social workers and doctors.
[54] Furthermore, the provision in the 2010 EE Plan that the
Commissioner could authorise deviations in those cases where to do
so
would accord with the operational requirements of the Department is a
provision that gives the Commissioner very wide powers
to authorise
deviations from the targets.  The evidence given on behalf of
the Department at the trial included an example
that Regional Heads
of the Department would recognise positions where the operational
requirements of the Department required a
deviation.  One
witness of the Department made the example of “hotspots”.
[55] Also, as the Labour Appeal Court said, the Department furnished
13 specific names of persons in whose favour it had approved

deviations in the Western Cape alone.  The 13 deviations made in
the Western Cape were made in favour of two Coloured women,
seven
Coloured men, two White men and two African men.  This appears
in the respondents’ response to the applicants’
statement
of claim in the Labour Court.  These 13 deviations were not the
only ones made by the Department during that period
in the Western
Cape.  In its response to the applicants’ statement of
claim, the Department said: “[a] full list
of the deviations
will be provided to this Honourable Court at the hearing of this
matter.”  This reflects that in the
Western Cape there
were more deviations than 13 during the period 2010 – 2013.
It does not appear that that list was
provided at the hearing.
This must have been as a result of the fact that, as the Labour
Appeal Court said, the applicants’
case at the trial did not
focus on the deviations.
[56] In his separate judgment (second judgment), Nugent AJ disagrees
with my conclusion that the numerical targets of the 2010
EE Plan
were not quotas and with my reliance on the provisions relating to
deviations in this regard.  He expresses the view
that the
deviations were not part of the 2010 EE Plan but were separate.
In effect he says that they may not be taken into
account in deciding
whether the numerical targets were rigid and, therefore, constituted
quotas.  I disagree.
[57] The targets in the 2010 EE Plan should not be viewed in
isolation as does the second judgment.  The correct approach
is
to look at the 2010 EE Plan holistically including the provisions
relating to deviations.  After all, the deviations were

deviations from those targets.  The provisions relating to
deviations were part of the 2010 EE Plan, were intended to be part
of
it and were understood even by the applicants to be part of the 2010
EE Plan.  That is why the parties ran the trial on
the basis
that the provisions relating to deviations were part of the 2010 EE
Plan.  It is a general rule of appellate adjudication
that
disputes should be adjudicated on the same basis on which the parties
dealt with them in the court of first instance.
This rule is
subject to one or two exceptions none of which is present in this
case.
[58] Furthermore, the conclusion that the numerical targets in the
2010 EE Plan were rigid and the deviations had no effect thereon
and
were not to be taken into account flies in the face of a concession
made by the applicants’ own expert witness, Mr Joubert,
under
cross-examination.  Counsel for the Department put to Mr Joubert
that the 2010 EE Plan contained—
“a process which involves a decision by the National
Commissioner to determine . . . whether he should appoint
–
or whether or not he should appoint a person who does not meet the .
. . employment plan targets.”
To this Mr Joubert said: “[t]he employment equity plan I
assume”.  Counsel for the Department then said: “I

am referring to the targets in the plan”.  Mr Joubert
responded: “[y]es I believe that is what the deviation process

refers to”.  This shows that the applicants’ own
expert witness saw the deviation provisions as part of the 2010
EE
Plan.
[59] Thereafter, the following exchange occurred:
Counsel: “And that is an
indication, isn’t it, of flexibility being introduced in the
plan?”
Mr Joubert: “Well there is
– some leeway is given to the Commissioner at his discretion to
deviate, as it is stated
here, deviation from what some of the other
figures might lead the conclusion to be.”
Counsel: “Yes, that’s
right.  Because if the plan, to which you have had reference, is
applied in an inflexible
manner, there would be no discretion which
rests in anyone to deviate from those targets.”
Mr Joubert: “Yes, if it
was completely inflexible, certainly there could not be a deviation
process.”
When Counsel for the applicants in the Labour Court re-examined Mr
Joubert, he did not revisit this concession made by Mr Joubert.

Therefore, the determination of the question whether the targets were
rigid or not must not disregard this concession, as does
the second
judgment, but must take it into account.
[60] The second judgment also deals with the matter as if deviations
were permitted only in the case of scarce skills.  It
overlooks
the fact that deviations could also be made where the “operational
requirements” of the Department justified
a deviation.
That simply related to the needs of the Department.  That ground
for deviation relates to those cases where
a deviation could be
justified on the basis of the operational needs of the Department.
There is no justification for the
conclusion that the targets in the
2010 EE Plan were rigid or were applied rigidly and, therefore,
constituted quotas.
[61] The fact that only the Commissioner could authorise deviations
does not itself turn a flexible target into a rigid target.
In
an organisation as big as the Department, it is necessary to take
steps to avoid inconsistencies that may occur in the authorisation
of
deviations when there are too many people with power to authorise
deviations.  There was, therefore, nothing wrong with
the fact
that only the Commissioner could authorise deviations and that
Regional Heads or Directors could make recommendations
to the
Commissioner.
[62] There was also nothing wrong with the provision in the 2010 EE
Plan that managers who did not implement the Plan would be

sanctioned.  Section 24(1)(c) of the EE Act contemplates that.
Section 24(1)(a) places an obligation on a designated
employer to
assign one or more senior managers to take responsibility for
monitoring and implementing an employment equity plan.
Section
24(1)(b) obliges a designated employer to provide the managers with
“the authority and means to perform their functions”.

Obviously, those functions are the functions concerning monitoring
and implementing the employer’s employment equity plan.

Then section 24(1)(c) obliges a designated employer to “take
reasonable steps to ensure that the managers perform their
functions”.
[63] Managers are employees.  An employer is entitled to
indicate to an employee that, if he or she fails to perform his or

her duties or functions properly, disciplinary steps may be taken
against him or her.  There is no reason why a provision
in an
employment equity plan to the effect that managers who fail to
perform their duties properly in regard to the monitoring
and
implementation of the employer’s employment equity plan will be
disciplined should be held against the employer or should
be said to
render numerical targets quotas.
[64] Finally, it also needs to be highlighted that at the trial the
applicants’ case did not include showing that the Commissioner

had failed to properly exercise her discretion to authorise
deviations in the case of any of the individual applicants.  I,

therefore, conclude that the applicants have failed to show that the
targets in the 2010 EE Plan constituted quotas.
Validity of the Plan and unfair discrimination
[65] The applicants contend that the Department’s decisions to
refuse to appoint the individual applicants on the basis of
their
race or gender constituted unfair discrimination which is prohibited
by section 6(1) of the EE Act.  In this regard
it will be
recalled that the Department’s reason for not appointing the
individual applicants who were recommended for appointment
was that
the Coloured people and women were already overrepresented in the
occupational levels to which the individual applicants
sought to be
appointed.  That meant that they were overrepresented in terms
of the numerical targets set by the Department
in the 2010 EE Plan.
The applicants also argued that the 2010 EE Plan did not comply
with the EE Act in certain respects
and, because of this, was invalid
and should be set aside.  The issues relating to whether a
declaratory order should be made
concerning the validity of the
2010 EE Plan and whether the Department’s refusal to
appoint the individual applicants
constituted unfair discrimination
will be dealt with together.
[66] The provisions which the applicants contend the 2010 EE Plan did
not comply with are those of section 20(2)(a) and (c)
as well as
section 42 of the EE Act.  However, there are other sections of
the EE Act that are also relevant which will
be referred to in
the course of dealing with the applicants’ contention.
Section 13(1) and (2) reads:
“(1) Every designated employer must, in order to achieve
employment equity, implement affirmative action measures for people

from designated groups in terms of this Act.
(2) A designated employer must—
(a) consult with its employees as required by section 16;
(b) conduct an analysis as required by section 19;
(c) prepare an employment equity plan as required by section 20; and
(d) report to the Director-General on progress made in implementing
its employment equity plan, as required by section 21.”
[67] Section 15 reads:
“Affirmative action measures
(1) Affirmative action measures are measures designed to ensure that
suitably qualified people from designated groups have equal

employment opportunities and are equitably represented in all
occupational 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 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.”
[68] Section 19 reads:
“Analysis
(1) A designated employer must collect information and conduct an
analysis, as prescribed, of its employment policies, practices,

procedures and the working environment, in order to identify
employment barriers which adversely affect people from designated

groups.
(2) An analysis conducted in terms of subsection (1) must include a
profile, as prescribed, of the designated employer’s
workforce
within each occupational level in order to determine the degree of
underrepresentation of people from designated groups
in various
occupational categories and levels of that employer’s
workforce.”
[69] Section 20(1) and (2) reads:
“(1) A designated employer must prepare and implement an
employment equity plan which will achieve reasonable progress towards

employment equity in that employer’s workforce.
(2) An employment equity plan prepared in terms of subsection (1)
must state—
(a) the objectives to be achieved for each year of the plan;
(b) the affirmative action measures to be implemented as required by
section 15(2);
(c) where underrepresentation of people from designated groups has
been identified by the analysis, the numerical goals to achieve
the
equitable representation of suitably qualified people from designated
groups within each occupational category and level in
the workforce,
the timetable within which this is to be achieved, and the strategies
intended to achieve those goals;
(d) the timetable for each year of the plan for the achievement of
goals and objectives other than numerical goals;
(e) the duration of the plan, which may not be shorter than one year
or longer than five years;
(f) the procedures that will be used to monitor and evaluate the
implementation of the plan and whether reasonable progress is
being
made towards implementing employment equity;
(g) the internal procedures to resolve any dispute about the
interpretation or implementation of the plan;
(h) the persons in the workforce, including senior managers,
responsible for monitoring and implementing the plan; and
(i) any other prescribed matter.”
[70] At the relevant time, section 42 read:
“In determining whether a designated employer is implementing
employment equity in compliance with this Act, the Director-General

or any person or body applying this Act must, in addition to the
factors stated in section 15, take the following into account:
(a) the extent to which suitably qualified people from and amongst
the different designated groups are equitably represented within
each
occupational level in that employer’s workforce in relation
the—
(i) demographic profile of the national and regional economically
active population;
(ii) pool of suitably qualified people from designated groups from
which the employer may reasonably be expected to promote or
appoint
employees;
(iii) economic and financial factors relevant to the sector in which
the employer operates;
(iv) present and anticipated economic and financial circumstances of
the employer;
(v) the number of present and planned vacancies that exists in the
various categories and levels, and the employer’s labour

turnover;
(b) progress made in implementing employment equity by other
designated employers operating under comparable circumstances and

within the same sector;
(c) reasonable efforts made by a designated employer to implement its
employment equity plan;
(d) the extent to which the designated employer has made progress in
eliminating employment barriers that adversely affect people
from
designated groups; and
(e) any other prescribed factor.”
Subsequently, this provision was amended by the replacement of the
word “must” in the introductory part of subsection
(1)
with the word “may”.  Accordingly, this matter must
be determined on the basis of how this provision read
before
amendment.
[71] Section 42 applies when the Director-General or any person or
body applying the EE Act seeks to determine “whether a

designated employer is implementing employment equity in compliance
with [the EE Act]. . .”.  It is to be noted that
this
provision does not directly refer to the implementation of an
employment equity plan but simply to “implementing employment

equity”.  However, the matter was argued on the basis that
the implementation of employment equity means the same thing
as the
implementation of an employment equity plan where there is one.
For purposes of this matter I shall deal with section
42 on this
basis as well.
[72] Section 42(a) must be read with other sections of the EE Act
including sections 13, 15, 19, 20 – all of which I
have
already quoted.  Section 13 deals with the “[d]uties of
designated employers”.  I draw attention to
section
13(2)(b) and (d).  Paragraph (b) obliges a designated employer
“to conduct an analysis as required by section
19”.
Paragraph (d) obliges a designated employer to report to the
Director General progress made in implementing
its employment
equity plan.
[73] Section 42 is about determining whether a designated employer is
implementing employment equity in accordance with the EE
Act.
It provides for the factors that, before its amendment, anyone
applying the EE Act to make that determination was obliged
to take
into account.  Before amendment, section 42 said that the
factors that had to be taken into account were those set
out in
sections 15(2) and 42(a) to (e).  There are nine factors
altogether provided for in those two sections.
[74] One of the factors that section 42 required to be taken into
account in determining whether a designated employer was implementing

employment equity in compliance with the EE Act was the extent to
which suitably qualified people from and amongst the different

designated groups were equitably represented within each occupational
level in that employer’s workforce in relation to the

demographic profile of the national and regional economically active
population.  The equitable representation must be equitable

representation “in relation to the demographic profile of the
national and regional economically active population”.
In
other words, the person applying the EE Act had to determine whether
or not the relevant categories of persons were equitably
represented
in each occupational level in relation to the demographic profile of
the national and regional economically active
population.  If
those categories of persons were equitably represented in that
context, that meant that the employer was implementing
employment
equity in compliance with the EE Act in regard to the factor in
section 42(a).  If they were not, that meant that
the employer
was not implementing employment equity in compliance with the EE Act
in regard to the factor in section 42(a).
[75] Section 42(a) must be read with section 19.  This is so
because they both relate, at least in part, to the determination
of
the level of representation of suitably qualified people from and
amongst the designated groups.  Section 19(1) obliges
a
designated employer to collect information and conduct an analysis of
employment equity policies, practices, procedures and working

environment in order to identify employment barriers which adversely
affect people from designated groups.  Section 19(2)

provides that that analysis must include a profile of the designated
employer’s workforce within each occupational level—
“in order to determine the degree of underrepresentation of
people from designated groups in various occupational categories
and
levels in that employer’s workforce.”
This means that the analysis provided for in section 19 is used to
determine whether suitably qualified people from the different

designated groups are equitably represented within all occupational
levels in a designated employer’s workforce.
[76] Section 20(2)(c) must also be read with section 19.  This
is because section 20(2)(c) refers to underrepresentation

“identified by the analysis”.  The reference to “the
analysis” can only be a reference to the analysis
referred to
in section 19.  It, therefore, seems logical that the
extent of the representation of suitably qualified
people from and
amongst the different designated groups in all occupational levels in
a designated employer’s workforce,
as provided for in section
42(a), would be determined on the basis of the analysis referred to
in section 19.
[77] Section 20(2)(c) says that, “where underrepresentation of
people from designated groups has been identified by the analysis”,

the employment equity plan must state—
“the numerical goals to achieve the equitable representation of
suitably qualified people from designated groups within each

occupational category and level in the workforce, the timetable
within which this is to be achieved, and the strategies intended
to
achieve those goals.”
This means that the numerical targets or goals in an employment
equity plan must be based on the level of underrepresentation that

has been identified using the section 19 analysis.
[78] Going back to section 42(a), it seems to me that, if a
designated employer uses a wrong basis to determine the level of
representation
of suitably qualified people from and amongst the
different designated groups, the numerical goals or targets that it
may set for
itself to achieve within a given period would be wrong.
It is of fundamental importance that the basis used in setting the

numerical goals or targets be the one authorised by the statute.
A wrong basis will lead to wrong targets.  In the present
case
the Department only used the national demographic profile to
determine the level of representation of the different designated

groups.  At the time the law was that it was obliged to use the
demographic profile of both the national and regional economically

active population.  It did not also take into account the
demographic profile of the regional economically active population
as
it was obliged to in terms of section 42(a).
[79] In failing to use the demographic profile of both the national
and regional economically active population to set the numerical

targets, the Department acted in breach of its obligation in terms of
section 42(a) and, thus, unlawfully.  It had no power
to
disregard the requirement of also taking into account the demographic
profile of the regional economically active population
provided for
in section 42(a).  The Department sought to justify its
conduct in this regard on the basis that it is a
national
Department.  The problem with this is that section 42(a) did not
exclude national Departments from its application.
Accordingly,
the fact that it is a national Department in terms of section 1 of
the Public Service Act did not exempt it from complying
with the
requirements of section 42(a).
[80] The effect of the above conclusion is that, when the Department
refused to appoint the Coloured and female individual applicants
on
the basis that they belonged to groups that were already
overrepresented within the occupational levels to which they wanted

to be appointed, the overrepresentation of those groups had been
determined on a wrong benchmark.  Whether the groups would
still
have been overrepresented or not had the correct benchmark been used,
we do not know.  However, the fact of the matter
is that the
Department acted in breach of its obligations under section 42(a) as
that provision stood before it was amended.
[81] Once it has been found that the overrepresentation relied upon
by the Department to refuse to appoint the Coloured and female

individual applicants lacked a proper basis, what remains is that the
Department is not able to justify the use of race and gender
in not
appointing them.  Section 6(1) of the EE Act provides that:
“No person may unfairly discriminate, directly or indirectly,
against an employee, in any employment policy or practice,
on one or
more grounds, including race, gender. . .”
Section 11(1) of the EE Act provides:
“If unfair discrimination is alleged on a ground listed in
section 6(1), the employer against whom the allegation is made
must
prove, on a balance of probabilities, that such discrimination—
(a) did not take place; or
(b) is rational and not unfair or is otherwise justifiable.”
[82] One cannot “prove, on a balance of probabilities”,
that anything is “rational and not unfair or is otherwise

justifiable”, because it is only a fact that can be proved.
Whether conduct is rational or fair or justifiable is not
a
question of fact but a value judgment.
[32]
I shall take section 11(1)(b) to require that the employer must show
that the discrimination was rational and not unfair
or is otherwise
justifiable.  Since the Department’s understanding that
Coloured people and women were overrepresented
in the relevant
occupational levels had no lawful basis, the Department has failed to
show that the discrimination was rational
and not unfair or was
otherwise justifiable.  In the circumstances, the conclusion is
inescapable that the Department’s
decisions in refusing to
appoint the Coloured and female individual applicants constituted
acts of unfair discrimination.
Those decisions also constituted
unfair labour practices.
Remedy
[83] The next question is what remedy, if any, should be granted to
the individual applicants.  The applicants contended that
the
Department’s 2010 EE Plan should be declared invalid and set
aside.  That plan was for the period 2010-2014.
It is no
longer in use.  Many decisions may have been made while it was
in use.  It does not appear to me that it is
warranted to
invalidate the entire plan.  It seems appropriate to rather
focus on the specific decisions that were taken pursuant
to that plan
about which the applicants complain and declare them invalid and set
them aside.
[84] The applicants’ real complaints were based on the
Department’s refusal to appoint the individual applicants to

the relevant posts.  Those decisions should be set aside.
That should afford the applicants effective relief.
In this
Court the applicants sought to make the invalidation of the 2010 EE
Plan a big issue.  However, that reflected a change
of attitude
on their part to the issue because in the pre-trial minute agreed to
between the parties they said that “the
constitutionality and
legality of the Plan is merely ancillary to the discrimination
dispute”.  Therefore my approach
that the discrimination
dispute is the real dispute between the parties accords with the
pre trial minutes.
[85] In a case such as this, section 50(2) of the EE Act gives the
Labour Court the power to make “any appropriate order
that is
just and equitable in the circumstances” including an order for
the payment of compensation.  As we are dealing
with an appeal
from the Labour Appeal Court which had heard an appeal from the
Labour Court we have to determine a remedy
that the Labour Court
had power to grant.  Therefore, we have the same powers.
It seems to me that the first step would
be to set aside the
Department’s refusal to appoint the Coloured and female
individual applicants.
[86] With regard to further orders, it is necessary to distinguish
between those individual applicants who had applied for appointment

to posts that remain unfilled to this day and those that were
filled.  The applicants’ Counsel asked the Court to make

this distinction in dealing with the remedy.  This must have
been based on the recognition of the fact that it may be disruptive

if those who had been appointed to the posts and have served in them
for a number of years were to be removed to make space for
the
individual applicants.  It may also be that some of those who
were appointed were members of Solidarity and Solidarity
may not have
wanted to disrupt the lives of some of its members.
[87] Except for one Coloured individual applicant, namely, Mr AJ
Jonkers, all the Coloured individual applicants were recommended
for
appointment.  Mr AJ Jonkers was not recommended for appointment.
Ms LJ Fortuin was recommended but initially denied

appointment.  However, later she was appointed to the post she
had wanted.  These two individual applicants can therefore
not
be said to have suffered any unfair discrimination or to have been
subjected to any unfair labour practice.  Had it not
been for
the fact that the Department had concluded, on the basis of a wrong
benchmark, that Coloured people and women were overrepresented
in the
relevant occupational levels, there seems to be no reason why the
individual applicants, other than Mr PJ Davids,
Ms LJ
Fortuin and Mr AJ Jonkers, would not have been appointed.  The
Coloured individual applicants who had applied for appointment
to
posts that remain unfilled to this date must be appointed to those
posts.  The appointment must be with retrospective effect
to the
date from which they would have been appointed had they been
appointed at the time they were denied appointment.  This
means
that they must also be paid the difference in remuneration that they
would have received from that date to the date of their
commencement
of work in the posts in terms of this judgment.  They must also
be accorded the benefits that attach to the posts
with effect from
the date from which they would have been appointed to the posts had
they not been denied appointment.
[88] What about the individual applicants who had applied for posts
that were subsequently filled?  Counsel for the applicants

submitted that they should be granted “protective promotion”.
However, Counsel did not furnish this Court with
any legislative
instrument providing for “protective promotion”.  As
I understand it, the concept of “protective
promotion”
entails that, if an employee had applied for promotion but was not
promoted and it is later found that he or she
should have been
promoted, that employee is then accorded the remuneration that he or
she would have been accorded had she been
promoted.  In other
words, he or she remains in the lower position but is remunerated at
the level of the post to which she
was wrongly denied promotion.
[89] The fact that the applicants did not seek to have the successful
candidates removed from the posts to which they had applied
must be
of benefit to the Department.  This is so because it avoids
disruption in the workplace that would occur if the present

incumbents to the posts have to be removed.  Section 50(2) of
the EE Act does not in terms make provision for “protective

promotion”.  However, it seems to me that the remedial
powers that it gives the Labour Court – which are the powers

this Court also has on appeal in relation to this matter – are
wide enough to cover an order that would have the same effect
as
protective promotion or similar effect.  Section 50(2) reads:
“(2) If the Labour Court decides that an employee has unfairly
been discriminated against, the Court may make
any appropriate
order that is just and equitable in the circumstances
including—
(a) payment of compensation by the employer to that employee;
(b) payment of damages by the employer to that employee;
(c) an order directing the employer to take steps to prevent the same
unfair discrimination or a similar practice occurring in
the future
in respect of other employees;
(d) an order directing an employer, other than a designated employer,
to comply with Chapter III as if it were a designated employer;
(e) an order directing the removal of the employer’s name from
the register referred to in section 41; and
(f) the publication of the Court’s order.”
(Emphasis added.)
[90] What matters the most in regard to the power of the Court under
section 50(2) is that the remedy or order it makes must be
one that
is appropriate as well as just and equitable.  The respondents
did not contend that, if this Court held that the
individual
applicants had been unfairly discriminated against, the so-called
protective promotion would be inappropriate.
I do not call the
order that I propose to make protective promotion.  However, it
is an order that, in my view, is just and
equitable.
[91] Considerations of justice and equity dictate that the individual
applicants concerned should be paid remuneration applicable
to the
posts to which they were unfairly denied appointment.  The
payment of this remuneration must be with effect from the
date with
effect from which they would have been appointed to the posts if they
were not denied appointment.
[92] This does not mean that the individual applicants concerned must
be paid double, namely, for the posts they continue to occupy
and for
the posts to which they were denied appointment.  It simply
means that:
(a) for the period before the date of this judgment they must be paid
the difference between what they would have been paid had
they been
appointed to the posts to which they were denied appointment and what
they have been paid in respect of the posts they
have occupied during
that period;
(b) for the period after the handing down of this judgment, despite
the fact that they continue to occupy the posts that they occupy,

they must be paid at the level of the remuneration at which they
would have been paid had they been appointed to the posts to which

they were denied appointment; and
(c) they must also be accorded benefits attached to the posts in
which they sought appointment but were not appointed.
[93] The finding that the Department’s decision not to appoint
the individual applicants to the posts to which they had applied
for
appointment does not apply to three of the individual applicants,
namely Mr PJ Davids, Mr AJ Jonkers and Ms LJ Fortuin.

In respect of Mr Davids, the reason is that he is a White person and
white people were already overrepresented in the relevant

occupational level to which he sought appointment.  In respect
of Ms Fortuin, she was later appointed to the post to which
she had
initially been denied appointment.  Mr Jonkers was not
recommended for appointment by the panel that interviewed him.
[94] With regard to costs, as this is a labour matter I propose not
to make any costs order.
Order
[95] In the result the following order is made:
1. The late delivery of the first to third respondents’ written
submissions is condoned.
2. Leave to appeal is granted.
3. Subject to paragraph 4, the appeal is upheld.
4. The appeals by Mr PJ Davids, Mr AJ Jonkers and Ms LJ Fortuin are
dismissed.
5. The orders of the Labour Court and Labour Appeal Court are set
aside and that of the Labour Court is replaced with the following:
“(a) The claims by Mr PJ Davids, Mr AJ Jonkers and Ms LJ
Fortuin are dismissed.
(b) The decisions of the Department of Correctional Services not to
appoint the rest of the individual applicants to the posts
in which
they respectively sought to be appointed constituted unfair
discrimination and unfair labour practices and are set aside.
(c) Those individual applicants who had applied for appointment to
posts that remain vacant to this day or that are presently vacant

even if they had subsequently been filled must be appointed to those
posts and be paid remuneration and accorded the benefits attached
to
those respective posts.
(d) Those individual applicants
who had applied for appointment to posts that were subsequently
filled and are presently filled
must be paid the remuneration and be
accorded the benefits attached to those respective posts.
(e) The orders in (c) and (d)
shall operate with retrospective effect from the date with effect
from which the individual applicants
would have been appointed to the
respective posts had they not been denied appointment.
(f) There is no order as to
costs.”
6. There is no order as to costs in this Court.
NUGENT AJ (Cameron J concurring)
[96] I support the orders proposed by my colleague Zondo J, except
for a reservation I come to presently, but see the matter differently

in a number of respects.  It is necessary briefly to express my
reasons for supporting those orders.
[97] This Court has for long been conscious of the enormous task of
realising the transformational aspirations of the Constitution,
and
has been acutely aware of the difficulties that will be confronted
along the way.  It was foremost in the mind of this
Court in
Bel
Porto
where, grappling with equality in the education system, it
was led to say:
“
The difficulties confronting us as a nation
in giving effect to these commitments are profound and must not be
underestimated.  The
process of transformation must be carried
out in accordance with the provisions of the Constitution and its
Bill of Rights.
Yet, in order to achieve the goals set in the
Constitution, what has to be done in the process of transformation
will at times
inevitably weigh more heavily on some members of the
community than others.”
[33]
[98]
Two
years later, in
Bato Star
,
when considering the appropriate balance to be struck to facilitate
equity in the fishing industry, the Court reflected once more
upon
the difficulties to be overcome:
“
There are profound difficulties that will
be confronted in giving effect to the constitutional commitment of
achieving equality.
We must not underestimate them.”
[34]
[99] More recently, in
Barnard
, writing for the majority,
Moseneke ACJ eloquently expressed the objectives of the Constitution,
applicable as much in this case
as they were in
Barnard
, as
plainly having 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.”
[35]
But he took care, in addition, to articulate the vigilance to be
exercised in pursuing that goal:
“Our quest to achieve equality must occur within the discipline
of our Constitution.  Measures that are directed at
remedying
past discrimination must be formulated with due care not to invade
unduly the dignity of all concerned.  We must
remain vigilant
that remedial measures under the Constitution are not an end in
themselves. . . .  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. . . .
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.”
[36]
(Footnotes omitted.)
[100] In a joint concurring judgment Cameron J, Froneman J and
Majiedt AJ emphasised that timely caution; highlighting the tension

that can arise from the Constitution’s commitment both to
recognising and redressing the realities of the past, and to
establishing
a society that is non-racial, non-sexist and socially
inclusive:
“
[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.’  .  .  .  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’.”
[37]
(Footnotes omitted.)
[101] The fact that balance must be brought to bear if those
objectives are to be reconciled was stressed repeatedly by Van der

Westhuizen J, who also said:
“
[It] must be pointed out that equality can
certainly mean more than representivity.  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.”
[38]
(Footnote omitted.)
[102] The nuances and complexities this Court has repeatedly
recognised as inherent in the constitutional process of
transformation
have a practical bearing on this case.  There is
no sign in the Plan now before us of the just balancing required by
Bel Porto
and
Bato Star
, nor is there any recognition
of the care and vigilance expressed in
Barnard
.  Nor is
there any attempt to harmonise the constitutional tensions that
concerned the concurring judges, nor of the balancing
that was urged
by Van der Westhuizen J.  In contrast to the thoughtful,
empathetic, and textured plan one might expect if
weight is given to
what was expressed by this Court, what we have before us is only cold
and impersonal arithmetic.  A person
familiar with the
arithmetic functions of an Excel spreadsheet might have produced it
in a morning.
[103] The arithmetic is founded on two ratios and no more.  One
is the proportional relationship to one another of the four
major
racial groups that make up our population, bluntly expressed as:
“White 9.3%; African 79.3%; Coloured 8.8%; Indian 2.5%”.

The other is a ratio of men to women, expressed in numbers, but
equating to 60% and 40% respectively.
[39]
[104] Those ratios are described as reflecting “SA Statistics
of economically active population (Census 2006)”.
The
source of the figures is said to be “Stats SA, Mid year
population estimates, South Africa, 2005 (Statistical Release

P0302)”.  Even that attribution was accorded disturbingly
little care.  First, it overlooks that Statistics Release
P0302
was issued on 31 May 2005 and could not have reflected the outcome of
a census conducted only in 2006.
[40]
Second, there was no census in 2006.
[41]
Third, the Statistics Release is not the source of the gender ratio
that has been adopted.
[42]
And fourth, the statistics in the Statistics Release reflect not the
composition of the economically active population but
the composition
of the population as a whole.
[105] What follows the expression of those ratios in the Plan is a
series of arithmetic tables.  These allocate posts at various

levels in the Department’s establishment in accordance with the
ratios, comparing the allocations with the racial and gender

composition of its then existing workforce, and recording the
differences (referred to as “gaps”), to the last digit.

At the foot of each table are instructions on what must be done to
eliminate the “gaps” at the various levels. In each
case
the instruction records that a negative “gap” means
“reduce personnel” and a positive “gap”
means
“appoint personnel”.  What follows are the
instructions at each level of the establishment:
“
Levels 3-5:
“
At level 3 only Whites and Indians should
be appointed.  At salary level 4 only 9 African Males, one
African Female and
one Coloured Male need to be appointed to balance
representation of the workforce.  At level 5 only African
Females, Whites
and Indians can be appointed.”
Levels 6-8:
“
At level 6 African Females, White Females
and Indians should be appointed.  At level 7 Africans (M
684; F
3
039) 331 Coloured Females and 103 Indian Females should be
appointed.  At level 8 only Africans (157 m & 190 f) and
15
Indians.”
Levels 9-12:
“
At levels 9 & 10 only 51 African Males,
198 African Females and 2 Indian Females can be appointed.  At
level 11 & 12
only 109 African Females, 5 White Females and 9
Coloured Females can be appointed.”
Levels 13-16:
“
At level 13 African Males stand at 63 with
a gap of -9 which indicates no African male should be appointed.  24
African Females,
4 Coloured Females and 1 Indian Female need to be
appointed at this level.  At level 14 only 3 African Females and
1 White
Female needs to be appointed.  At level 15 only 2
African Females and 1 African Male can be appointed.”
[106] That exposition gives the full substance of the Department’s
Employment Equity Plan.  It gives a flavour of how
antithetical
the Plan is to constitutional transformation that is respectful of
the rights and interests of everyone.  The
remainder of the
document incorporating the Plan comprises explanatory background,
historical progress towards achieving the allocations,
statements of
policy, allocation of responsibilities, and directions for
implementation.
[107] The hallmark of the implementation directions is that those
responsible for making appointments must apply the racial and
gender
allocations unswervingly.  If they do not they are at peril even
of disciplinary steps:
“In the event of any form of non-compliance or deviation,
concerned managers will be held accountable and action shall be
taken
by the Commissioner in line with section 24(1)(c) of the EE Act
as a requirement by the Department of Labour who are
‘watchdogs’
on behalf of the public service.”
[108] My colleague finds those allocations not to be “quotas”,
which are prohibited, but instead to be “numerical
targets”,
which are allowed.
[43]
I disagree.  They have the look, flavour and characteristics of
quintessential quotas.
[109] A “quota” is a word in common usage.  This
Court used it liberally in
Bato Star
with no need to question
what it means.
[44]
Its meaning is given in various dictionaries, with nuances of
language that all fit the present case.  It means an allocation

that is in some sense due.  And it is self-evident from the
tables, for example, that 197 posts at level 3 are “given”

or “due” to Coloured women, and 84 posts are “given”
or “due” to Indian men (Oxford English
Dictionary).
[45]
And that 79.3% of posts throughout the establishment are
“proportionately assigned” to African people (Black’s

Law Dictionary).
[46]
And that a maximum number of posts at each level are available only
to each racial and gender group (Collins English Dictionary).
[47]
[110] My colleague finds these are not “quotas” because
the National Commissioner is entitled to deviate from the
allocations.  The Plan says the National Commissioner may do so
where “special skills” are required that would
not
otherwise be available (examples he gives are doctors and social
workers) or where “operational reasons” require
them not
to be applied.  The judgment concludes on that basis that the
allocations are not rigid and thus not quotas.
[111] The judgment draws for its reasoning on
Barnard
.
There, Moseneke ACJ, while eschewing a definitive meaning of a quota,
said nonetheless that “the primary distinction
between
numerical targets and quotas lies in the flexibility of the
standard.”
[48]
He went on to say that section 15(3) of the EE Act “endorses
numerical goals in pursuit of work place representivity
and equity.
They serve as a flexible employment guideline to a designated
employer”.
[49]
[112] The National Commissioner (but only the National Commissioner)
is indeed entitled to deviate from the allocations in the
special
cases mentioned.  That is expressly recognised in the
implementation directives:
“
The National Commissioner has the
prerogative to appoint any candidate in accordance with the
departmental Employment Equity Plan
and is the only person who may
deviate with valid documented reasons that will stand the test in [a]
court of law.”
And:
“
[Regional Commissioners] and [Chief Deputy
Commissioners] must ensure that deviations or any appointment that is
against the [Employment
Equity] Plan is effected by the National
Commissioner as the only person mandated to do so by the approved
[Department of Correctional
Services Affirmative Action] Programme.
All scarce skills are considered where candidates from the
under-represented group
are not available.  Reasons for [a]
deviation request must thus be provided in a memorandum format.
Non-discriminatory
operational requirements / critical positions that
are central to core business delivery may be considered by the
National Commissioner.”
[113] But the approach of my colleague seems to me to misstate the
enquiry.  We are concerned with the general application
of the
Plan – not with special cases to which the Plan does not
apply.  When the National Commissioner deviates from
the Plan to
appoint doctors he is not implementing the Plan – he is
excepting doctors from it.  The critical enquiry
is not whether
there are special cases that are excepted from the Plan, but instead
whether there is scope for flexibility when
the Plan is applied to
non-excepted posts.
[114] And there the Plan could not be more rigid.  It is no
answer to someone in a non-excepted post, like an administrator,
or
an accountant, or a prison warder, who is rigidly turned away because
of his or her race or gender, to be told the Plan is flexible
because
they would have been appointed if they had been doctors.  A
flexible plan is one that allows flexibility in appointments
to which
the Plan applies in appointments of administrators, and accountants,
and prison warders, as the case may be.  A rigid
allocation of
posts is not made flexible by excluding some posts from its scope.
[115] These allocations are not at all the “guidelines”
for appointment referred to in
Barnard
.  Once the maxima
in each category have been reached, they are rigid barriers to
appointment to any of the approximately 40 000
posts in the
Department’s establishment.  I pointed earlier to the
instructions that follow each of the tables –
for example, “at
levels 9 & 10 only 51 African Males, 198 African Females and 2
Indian Females can be appointed”,
and so forth.  If no
factors other than the given numbers may be taken into account when
applying the Plan, and there are
none, that is not flexibility.
[116] The exception of special cases from the ambit of the Plan does
not seem to me to be the flexibility Moseneke ACJ had in mind
when he
said in
Barnard
:
“
[S]ection 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.”
[50]
[117] I respectfully adopt his description of “numerical
targets” as “employment guidelines”.  These

imply at least a measure of discretion in their application.  How
else than with discretion is the Department to avoid unduly

infringing the dignity of applicants for posts, which was the anxiety
of this Court in
Barnard
, if the posts are for clerks and
accountants, and not for doctors or social workers?  The enquiry
is whether there is flexibility
in applying the allocations to these
non-excepted posts.
[118] No doubt the allocations will most often be applied, as they
must be if they are to function as guidelines.  And no
doubt in
most cases the availability of a discretion will not have a
significant practical effect. But without a measure of discretion

race and gender operates as an absolute barrier to the appointment of
some, as the individual applicants in this case discovered.

What stood in the path of their appointment were quotas with no
discretion to take account of other factors, like individual
experience,
application and verve, and this Court said in
Barnard
that rigid quotas “amount to job reservation and are properly
prohibited by section 15(3) of the Act”.
[51]
On that ground alone the Department’s Plan is unlawful
and falls to be set aside.  I note my colleague’s

references to how a witness and Counsel viewed the Plan.
Whether or not the Plan is lawful is not determined by how they

viewed the Plan.  It is determined by what the Plan is as
objective fact, and what the Plan is as objective fact is as I have

stated it.
[119] Zondo J finds the plan to be unlawful on a narrow ground.
This is its conflict with section 42(a)(ii) of the EE Act,
in that it
does not take account of the demographic profile of the economically
active population regionally.  On that I respectfully
agree.
Far from bringing the regional profile of the population to
account, the Plan prohibits it.  Regional managers
are
prohibited from taking regional demography into account by Employment
Equity Plan Circular No 01 of 2011/12:
“Regions are not to develop their own regional plans based on
the regional demographic profile of the economically active

population but that
the different regions are to
develop own EE implementation plans to work towards realisation of
the national numeric goals set for
the entire department.”
[120] But section 42(a) expresses an important fact that is in any
event inherent in the demographic profile of the population
as a
whole.  This is its uneven distribution throughout the country.
Without its uneven distribution being brought to
account, the racial
proportions of the population, as an entirety, are dangerously
misleading if applied when compiling an employment
equity plan.
[121] While affirmative action measures are directed to redressing
past discrimination against the entire designated group,
discrimination
within the group is sanctioned if it is in pursuit of
equitable representivity.  The EE Act’s primary measure of
representivity
is the “demographic profile” of the
economically active population.
[52]
A demographic profile is a statistical analysis of the
characteristics of a population constructed upon whatever
characteristics
one chooses to analyse.
[53]
For powerful historical reasons the statute has focused on race and
gender as markers of employment equity.
[122] But if the demographic profile of the population is to be the
measure of employment equity then all the characteristics of
the
population that are relevant must be brought to account and not only
some.  To select only one characteristic, and ignore
others that
are relevant, will produce an irrational result, and irrationality is
not countenanced by the law.  As it was
stated in
Barnard
:
“
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.”
[54]
And as it was expressed later by Cameron J,
Froneman J and Majiedt AJ:
“We agree that rationality is the ‘bare minimum’
requirement.  It can hardly be otherwise.  In our
law all
exercises of public power must at least be rational.”
[55]
(Footnotes omitted)
[123] The nature of the enquiry mandated by the EE Act makes it clear
that the racial
[56]
characteristics of the demographic profile were primarily what the
Legislature had in mind, but there are many facets of those

characteristics.  To ascribe to the demographic profile of the
population no more than the proportion of each racial group
in the
entire country, as the Department has done, is misleading and
violates the clear statutory mandate.  National proportions
are
but one characteristic of the population’s demographic
profile.  There are others.
[124] It is well established that a rational decision calls for all
relevant factors to be brought to account and not only some,
and what
factors are relevant depends upon the purpose of the enquiry.
[125] The purpose of the EE Act for present purposes is
representivity in the workplace.  This is achieved by equitable
access
to employment opportunities – and employment
opportunities are accessible to people only where they live.
The objective
of the EE Act is not to induce racial migrations to
accommodate the statistics.  Its objective is accessibility of
employment
opportunities and it achieves that objective only if it
takes account where applicants for the posts are located.
Statistics
that serve as a tool for that purpose will be statistics
that reflect the reality of the population, and the reality is that
the
races are not distributed uniformly throughout the country, which
is not reflected in the Department’s Plan.
[126] If racial proportions are to be the measure of a representative
workforce then they must necessarily reflect the distribution
of the
people making up those proportions.  To do otherwise produces
irrational anomalies, as is evident in this case.
[127]
The great majority of
Coloured people live in the Western and Northern Cape.  The 2011
census revealed that Coloured people
comprised 48.8% of the
population of the Western Cape, and 40.3% of the population of the
Northern Cape.  In all other provinces
except the Eastern Cape,
where they comprised 8.3% of the population, their presence was
negligible.  In Limpopo they made
up a mere 0.3%, while 96.7% of
the population of that province were what the census calls “Black
Africans”.
[128] Translating those proportions to numbers, at the time of the
2011 census there were some 16 000 Coloured people in Limpopo

and some 5.2 million Black African people.  Approximately 2.8
million Coloured people
[57]
and 1.9 million Black African people
[58]
lived in the Western Cape.
[129] I see no rationality in restricting almost half the population
of the Western Cape to 8.8% of employment opportunities in
that
province, and simultaneously extending 8.8% of employment
opportunities in Limpopo to 0.3% of the population.  Of every

100 work opportunities in the Western Cape nine are made accessible
to some 2.8 million Coloured people, while in Limpopo nine

opportunities are made accessible as well to roughly 16 000 Coloured
people.  And while in Limpopo nine of every 100 posts
are made
accessible to roughly 16 000 Coloured people, only 73 are made
available to 2.8 million Black African people, denying
some 20% of
employment opportunities to almost the whole population.  Conversely,
in the Western Cape nine of each 100
opportunities are made
accessible to some 2.8 million Coloured people while 1.9 million
Black African people have access to 73.
[59]
[130] The same anomalies, albeit to a lesser degree, but equally
irrational, apply wherever the distribution of the population
has
been ignored.  Anomalies will necessarily abound when people are
reduced to statistics.  That is particularly so
if the
statistics bear no relation to the purpose for which they are used.
Other irrational anomalies can be expected if
the structure of the
Department’s establishment were examined in detail, but that
detailed structure was not in evidence
before us.
[131] Applying the racial proportions of the population as a whole,
without more, ensures every branch, every office, and every
nook and
cranny of the Department’s structure is constructed
accordingly, but that does not then serve the purpose of an

employment equity plan.  If access to employment is to be
allocated in proportions, one might expect it to be allocated
relative
to the proportions of the potential employees, not relative
to overall proportions that lump together people who in fact live a

thousand kilometres and more apart.
[132] The Department has provided no rational explanation for
reserving posts to the various race groups with reference alone to

their proportions as part of the national population, with no regard
to their distribution, and I see none.  It seems the
Department
considers the “demographic profile” of the nation to be
solely its racial proportions.  In that the
Department is
wrong.  The racial proportions of the population are not its
demographic profile.  They are but one characteristic
of the
demographic profile, and in themselves they do not provide a coherent
basis upon which to measure employment representivity.
That is
no doubt why the EE Act, and the 1999 Code of Good Practice issued
under the EE Act,
[60]
expressly directs designated employers to take account of the
regional profile of the population.  But regional distribution

is in any event inherent in the country’s demographic
profile.
[61]
On that ground, too, the conclusion must follow that the Plan is
irrational and in consequence unlawful.
[133] Stepping back from the separate grounds upon which I find the
Plan to be defective, it seems to me they are all mere symptoms
of a
fundamental malaise.  The passages from judgments of this Court
I referred to all recognise that reconciling the redress
the
Constitution demands with the constitutional protection afforded the
dignity of others is profoundly difficult.  That
goal is capable
of being achieved only by a visionary and textured employment equity
plan that incorporates mechanisms enabling
thoughtful balance to be
brought to a range of interests.  It is only in that way that
the constitutional tensions referred
to in
Barnard
are
harmonised.  And it is in that way that the Constitution’s
demand for a public service that is “broadly representative
of
the South African people” will be realised.  Ours are a
vibrantly diversified people.  It does the cause of

transformation no good to render them as ciphers reflected in an arid
ratio having no normative content.
[134] So far as the proposed orders are concerned, having found the
Plan was unlawful, it follows that it offers no defence to
the claims
of discrimination of all the applicants, including Mr Davids, and he,
too, is entitled to relief.  As this is a
minority judgment I
need not elaborate upon the relief I would grant to him.
Counsel for the Applicants:
J J Gauntlett SC and M J Engelbrecht Instructed by Serfontein Viljoen
& Swart
Counsel for the Respondents:
M T K Moerane SC, D B Ntsebeza SC, B M Lecoge and
N Mbelle
Instructed by the State Attorney
Counsel for the first Amicus Curiae:
V Ngalwana SC and F Karachi Instructed by Marais Müller Yekiso
Inc
Counsel for the second Amicus Curiae:
T Ngcukaitobi, N Muvangua
and V Bruinders Instructed by the State Attorney
[1]
Solidarity and Others v Department of Correctional Services and
Others
[2015] ZALAC 6; 2015 (4) SA 277.
[2]
As to
what an employment equity plan is, see
section 20
of the
Employment
Equity Act 55 of 1998
.
Section 20
is quoted in [69] of
this judgment.
[3]
55 of
1998.
[4]
66 of
1995.
[5]
As
summarised in para 3 of the Labour Court judgment above n 6.
[6]
See
section 42
in [70] below.
[7]
See
Solidarity and Others v Department of Correctional Services and
Others
[2013] ZALCCT 38;
[2014] 1 BLLR 76
at para 45.
[8]
Section
6(2)
provides that—
“(2) It is not unfair discrimination to—
(a) Take affirmative action measures consistent with the purpose of
this Act; or
(b) Distinguish, exclude or prefer any person on the basis of an
inherent requirement of a job.”
[9]
See
para [42] below for Section 9(2).
[10]
Labour Court judgment above n 7 at paras 45-6.
[11]
Id
at para 56.
[12]
South African Police Service v Solidarity obo Barnard
[2014]
ZACC 23
;
2014 (6) SA 123
(CC);
2014 (10) BCLR 1195
(CC)
.
(
Barnard
).
[13]
Id
at paras 50.3 and 50.4.
[14]
Id
at para 53.
[15]
Id.
[16]
Id
at para 56.
[17]
Minister of Finance and Another v Van Heerden
[2004] ZACC 3;
2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC).
[18]
Id
para 37.
[19]
Labour Appeal Court judgment above n 1 at para 37.
[20]
Id.
[21]
Id
at para 38.
[22]
Labour Appeal Court judgment above n 1 at para 51.
[23]
Id.
[24]
Id
at para 52.
[25]
Barnard
above n 12.
[26]
Barnard
above n 12 at para 62.
[27]
103
of 1994.
[28]
111
of 1998.
[29]
Motala and Another v University of Natal
1995 (3) BCLR 374
(D) at 383B-E.
[30]
Explanatory Memorandum to the Employment Equity Bill, GN 1840 of
1997, GG 18481.5, 1 December 1997.
[31]
Barnard
above n 12 at para 54.
[32]
Media Workers Association of SA & Others v Press Corporation
of SA Ltd
[1992] ZASCA 149
;
1992 (4) SA 791
(A); (1992) 13 ILJ 1391 (A) at
1397H-1398B.
[33]
Bel
Porto School Governing Body and Others v Premier, Western Cape and
Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC);
2002 (9) BCLR 891
(CC) (
Bel Porto
) at para 7.
[34]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004
(7) BCLR 687
(CC) (
Bato Star
) at para 76.
[35]
Barnard
above n 12 at para 29.
[36]
Id
at paras 30-1.
[37]
Id
at paras 93-4.
[38]
Id
at para 149.
[39]
This
ratio was adopted at salary levels 3-8. Salary levels 9-16
prescribed a 50:50 ratio.
[40]
See
Statistics South Africa
Mid-year population estimates, South
Africa: 2005
(statistical release P0302, May 2005),
available at
http://www.statssa.gov.za/publications/P0302/P03022005.pdf
.
[41]
A
census was scheduled for 2006 but was postponed to 2011.
[42]
The
document reveals that the ratio 60:40 was adopted as a matter of
policy for levels 3-8.  At levels 9-16 the ratio adopted
was
50:50.
[43]
Section 15(2)(d) of the EE Act provides that: “Affirmative
action measures implemented by a designated employer must include
.
. . measures to ensure the equitable representation of suitably
qualified people from designated groups in all occupational

categories and levels in the workforce.”  Section 15(3)
of the EE Act provides that such measures “include
preferential treatment and numerical goals, but exclude quotas”.
[44]
Bato
Star
above n 34 at para 1: “This application . . .
concerns the allocation of fishing quotas.”
[45]
The
Oxford English Dictionary
2
ed (Clarendon Press,
Oxford, 1989) vol 13 at 51: “2. The part or share of a total
which belongs, is given, or is due to
one.”
[46]
Black’s Law Dictionary
8 ed (West Group, 2004) at 1285:
“1. A proportional share assigned to a person or group: an
allotment.  2. A quantitative
restriction: a minimum or maximum
number.”
[47]
Collins English Dictionary
3 ed (HarperCollins, Glasgow,
2007) at 663: “1. Share that is due from, due to, or allocated
to a group or person. 2. Prescribed
number or quantity allowed.”
[48]
Barnard
above n 12 at para 54.
[49]
Id.
[50]
Id
at para 42.
[51]
Id
at para 54.
[52]
Section 42(a)(i) of the Act:
“In determining whether a designated employer is implementing
employment equity in compliance with this Act, the Director-General

or any person applying this Act must . . . take into account . . .
[t]he extent to which suitably qualified people from and amongst
the
different designated groups are equitably represented within each
occupational category and level in that employer’s
workforce
in relation to the demographic profile of the national and regional
economically active population.”
The 2009 Code of Good Practice (2009 Code) issued under the Act
records one of the purposes of “numerical goals”
as
being “to make the workforce reflective of the relevant
demographics as provided for in Form EEA 8”, which groups
the
economically active population racially.
[53]
Demographic profiles are classically constructed from the results of
a census.  From the results of the 2011 Census,
for
example, profiles have been constructed, for the population as a
whole, and for each racial group, of its distribution, level
of
education, average household income, rate of unemployment, and so
forth. See Statistics South Africa
Census 2011
(statistical
release P0301.4, 30 October 2012) available at:
http://www.statssa.gov.za/publications/P03014/P030142011.pdf
.
[54]
Barnard
above n 12 at para 39.
[55]
Id
at para 94.
[56]
The
gender profile of the population is not material for the outcome of
this case and I have left it out of account in what follows.
[57]
48.8% of the population.
[58]
32.9% of the population.
[59]
Adopting the approach taken by the Department, these illustrative
figures relate to the population as a whole, and are not restricted

to those who are economically active.
[60]
Code
of Good Practice: Preparation, Implementation, and Monitoring of
Employment Equity Plans (GNR. 1394
GG
19370, 23 November
1999).
[61]
The
Labour Court at para 45 considered the later Code of Good Practice
on the Integration of Employment Equity Into Human Resource
Policies
and Practice (GN 1358 in
GG
27866, 4 August 2005) to conflict
with the 2009 Code.  On the approach I take to what constitutes
the demographic profile
of the nation, I do not think that is
correct.