Du Preez v Minister of Justice and Constitutional Development & others  8 BLLR 767 (SE)
Where an affirmative action policy has the effect of the absolute inclusion of designated group members to the absolute exclusion of non-designated group this is not compatible with the variety of factors that need to be taken into account for an employment decision to meet the constitutional requirements of fairness and proportionality. Fairness depends on the cumulative effect of all relevant concerns, including the extent of the impact of the measure on the rights and interests of the complainant.
The complainant, a District Court magistrate with 19 years’ experience as a magistrate and holding B Iuris, LLB and Master of Public Administration degrees, applied for one of two vacant posts of Regional Court magistrate in Port Elizabeth, a minimum requirement for which was stated as at least seven years’ post-university experience in law. The complaint was not short-listed.
He claimed that the criteria used for short-listing was irrational and unfairly discriminatory on the basis of race and gender because it made it impossible for a White male to score higher than a Black female, whatever her experience. The respondents claimed that the Department was merely seeking to promote the constitutional imperative to ensure that the judiciary “reflects broadly the racial and gender composition of South Africa”. To this end, score sheets had been developed for the assistance of selection committees in terms of which points were allocated to candidates on the basis of experience (maximum 3 points), qualifications (2 points), race (3 or zero) and gender (3 or zero).
The Court held that to escape constitutional invalidity affirmative action measures must come within the protection afforded by section 9(2) of the Constitution. The nature and extent of the protection afforded affirmative action measures must be established by interpreting the Constitution in accordance with all values enshrined in the Bill of Rights. An interpretation that sees the Act’s approval of affirmative action measures as excluding or negativing the right to equality would offend against constitutional principles.
The Court noted further that the Magistrates Commission had adopted the short-listing criteria in obeisance to the constitutional dictate that the racial and gender composition of the country must be considered when judicial officers are appointed. That purpose does not include the objective of benefiting previously disadvantaged persons. However, both the Constitution and the Act clearly encourage measures designed to benefit the previously disadvantaged. The promotion of persons previously disadvantaged by non-representivity on the bench must accordingly be given due weight.
The Court noted further that the Act provides that once a complainant makes out a prima facie case of discrimination, the respondent must prove that the discrimination was fair. The Court had to ask itself whether the discrimination “reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned”. Regional magistrates bear a heavy workload and endure stress in their unremitting and onerous task of presiding daily over trials. That task requires insight and maturity, for which there is no substitute for experience. Only experience can indicate whether a person will be able to cope with the work of a Regional Court magistrate; appointing those with insufficient experience would subject them to considerable stress and detract form their performance. Moreover, it is of cardinal importance that Regional Courts, which play a crucial role in the administration of justice, are staffed by suitably qualified and sufficiently experienced persons. At no stage in the selection process had the successful candidate’s experience as magistrate been taken into account. The selection of Port Elizabeth magistrates was therefore irrational.
The Court noted further that the EEA does not require employers to impose absolute barriers to advancement on any group. For the complainant, the selection criteria constituted an absolute barrier. The inflexible modus operandi of the commission constituted an absolute inclusion of a designated group and the absolute exclusion of members of a non-designated group. It also frustrated the complainant’s ambition for advancement in his chosen career and denied him enhanced status and benefits. The discrimination therefore had a serious impact on him.
The Court concluded that the respondents had failed to prove that the discrimination against the complainant was fair. The criteria used in short-listing candidates for the Port Elizabeth Regional Court were accordingly set aside, and the first respondent ordered to re-advertise the vacant posts.
Extract from the judgment:
 It is the essence of the complainant’s case that he was unfairly discriminated against in that the shortlisting criteria constituted for him an absolute barrier to being considered on merit for the posts. The concept of an absolute barrier based on race or gender has received the attention of the Labour Courts and of legal writers in the sphere of employment law. Section 15 of the Employment Equity Act provides in relation to “affirmative action measures”, in section (3) thereof, that such measures include preferential treatment but exclude quotas; and, in section (4), that “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”. While the Employment Equity Act, by these provisions, does not prohibit such measures outright, it absolves employers from imposing absolute barriers against non-favoured groups. In a case before the Labour Court, it was found that a particular measure implemented by the South African Police Service (“SAPS”) constituted such a barrier in that it presented White male members of the force with “an insurmountable obstacle” to promotion; as such it constituted an absolute barrier. The measure therefore offended the employment equity plan of the SAPS which stated that “no employment policy or practice will be established as an absolute barrier to prospective or continued employment or advancement of persons not from designated groups”.
 Pretorius, Klinck and Ngwena describe as “the most drastic form of preferential treatment” those employment policies or programmes which afford absolute preference to members of designated groups who meet the minimum job requirements. “The effect of such an approach is, they say, “that selection is done irrespective of how the preferred designated group candidate compares with competitors from non-designated groups and sometimes irrespective of how the decision affects the excluded non-designated group members personally, as well as the specific operational needs of the employer or the special requirements of the job”. The learned authors express the view that “such measures would not be compatible with the variety of factors that need to be taken into account for an employment decision to meet the constitutional requirements of fairness and proportionality”. “Fairness, as they put it, “depends on the cumulative effect of all relevant concerns, including the extent of the impact of the measure on the rights and interests of the complainant”. “Proportionality”, they say, “requires, by definition, the balance of competing interests”. “Affording automatic preferences for designated group members eliminates the possibility of affirmative action from being tested in respect of its fairness and proportionality and elevates the affirmative action objective to the position of sole requirement for validity.”
 The effect of the committee’s shortlisting formula was to raise an insurmountable obstacle for the complainant. It was therefore an absolute barrier to his appointment to the post of Regional Court Magistrate, Port Elizabeth. The formula effectively gave automatic and absolute preference to Black female applicants who met the minimum job requirements, irrespective of how they compared to the complainant, or for that matter to Black male and White female applicants. No regard was had to how the formula affected such other applicants, nor did it have effective regard to the specific needs of the posts, beyond the minimum qualifications for the positions. The inflexible modus operandi of the committee comes foursquare within the situation of absolute inclusion of designated group members to the absolute exclusion of non-designated group members described by Pretorius et al, above. It is therefore subject to the valid criticism levelled at such measures by the learned authors.
 The effect of the formula was to frustrate the complainant’s ambition for advancement in his chosen career, with denial to him of the concomitant benefits of heightened prestige and increased income. The discrimination was therefore serious in its nature and extent. And the more detrimental the nature of the discrimination upon the interest of the affected party, the more likely it is to be unfair. In as much as the discrimination was built into a departmental policy, it was systemic in nature.
 The respondents, not being subject to the Employment Equity Act, are not obliged to prepare and implement an employment equity plan as contemplated in that Act. Nevertheless, one would expect it of them to set an example and have some formal and comprehensive affirmative action plan, which – in an open democratic society – would be available to all interested parties. Only then would candidates for the posts of judicial officers know where they stand. Instead, various officials have here outlined the respondents’ policy in regard to the appointment of Regional Court Magistrates. They have done so in broad and vague terms. The specifics of the shortlisting criteria for the various posts had to be gleaned from documentation supplied by the respondents’ legal representatives, from which the court had to piece together the implications of the departmental policy. That policy is rudimentary and unsatisfactory, to say the least.
Conclusion and order
 I find, for the above reasons, that the respondents have failed to prove that the discrimination perpetrated against the complainant, was fair. This finding means that the sole issue placed before the court in the pre-trial agreement, is decided in favour of the complainant. However, the orders that, in terms of that agreement, would flow from that finding are in my view too widely stated, and need to be modified and limited.
 In the result, the complaint is upheld and the following orders issue:
(a) The criteria utilised in selecting suitable candidates to be shortlisted for the posts of Regional Court Magistrate, Port Elizabeth, are set aside.
(b) The first and second respondents shall re-advertise the positions for Regional Court Magistrate, Port Elizabeth.
(c) The respondents shall pay the applicant’s costs.