Gordon v Department of Health: KwaZulu-Natal [2008] 11 BLLR 1023 (SCA)

Principle:

  1. In the absence of an equity plan or policy in terms of which affirmative action is to be applied, an employer is obliged to comply with the legislative framework which prohibits discrimination on the grounds of race or sex.

  2. An ‘affirmative action’ appointment made without an equity policy is an ad hoc and arbitrary act. It can never in itself amount to a ‘measure’ within the contemplation of the Bill of Rights and legislation which clearly require something much more than an ad hoc act.

  3. An appointment is not a ‘measure’ in itself and is clearly inherently arbitrary and therefore unfair.

Facts:

The appellant applied for the post of Deputy Director: Administration at Grey’s Hospital, Pietermaritzburg. After interviewing the candidates, the selection committee decided that the appellant was most suitable, as he was then administering three hospitals and had b leadership, planning and control competencies, all of which were found lacking in the other candidates. The panel’s recommendation was endorsed by the province’s Department of Health, but not by the Provincial Public Service Commission, which directed the department to appoint a black male candidate. The appellant instituted action in the Labour Court, claiming to have been unfairly discriminated against on the basis of race. He sought “protected promotion”. The action was dismissed on the basis that the appointment of the appellant, a white male, would not have given effect to the constitutional imperative of promoting equality in and transforming the public service, and could not therefore have been the most suitable candidate [see Gordon v Department of Health, Kwazulu-Natal [2004] 7 BLLR 708 (LC)].

At the Supreme Court of Appeal the court noted that the appellant’s contention was that in the absence of a rational policy, plan or programme which justified the employer acting in an inherently arbitrary manner, the failure to appoint him was discriminatory and unfair. The employer contended that its decision was beyond judicial scrutiny because, even in the absence of a specific plan or policy, appointing a black candidate was a measure designed to promote equality and the transformation of the public service.

The Court held that the appellant had obviously been discriminated against on the basis of his race. However, item 2(1)(a) (now repealed) of Schedule 7 of the Labour Relations Act 66 of 1995 provided that, in spite of the prohibition of discrimination, employers could adopt employment policies or practices “designed to achieve the adequate protection or advancement of persons or groups or categories of persons disadvantaged by unfair discrimination”. While affirmative action is designed to uplift the previously disadvantaged, the question was whether the appointment of the successful black candidate in casu was a measure falling within the terms of item 2(1)(a), as read with the Interim Constitution Act 200 of 1993.

The Court noted in this regard that item 2(1)(a) dealt with employment policies and practices. In cases involving alleged discrimination, the courts have always focused on the policies or plans by which employers sought to defend themselves to establish whether those plans or policies were rationally connected with the constitutional imperative of promoting equality. Ad hoc or random actions were found incapable of meeting that objective. It could therefore be deduced that properly formulated plans go a long way to meeting the requirement of rationality. This approach confirmed the Legislature’s choice of words. While rational plans are therefore approved, ad hoc or random actions are impermissible.

Turning to the facts, the Court noted that the argument that the successful candidate’s appointment was a measure to advance employment equity was the only justification advanced for discriminating against the appellant. The department had no policy or plan. In evidence, the Provincial Public Service Commission was unable to provide a coherent explanation for rejecting the appellant, or to explain how the question of representivity was addressed in the recruitment and selection process. This indicated that the commission held the view that the only way to promote equality was to appoint black candidates. The appointment was therefore clearly ad hoc, arbitrary and unfair.

The Court held further that in the absence of an equity plan, the employer was obliged to follow legislation pertaining to selection and appointment, none of which permits the rejection of suitable candidates on the basis of race alone.
The appeal was upheld, and the respondent was ordered to pay the appellant the difference between the salary he received from 1996 to the date of his retirement in 2003, and the salary he actually would have received had he been promoted.

Extract from the judgment:

 [12]   In the circumstances, it becomes necessary to consider the appellant’s claim, which was not dealt with by the LAC, that he was the victim of unfair racial discrimination when the respondent appointed Mr Mkongwa and not him. This claim is based on item 2(1)(a) of Schedule 7 of the Labour Relations Act 66 of 1995 (“the Act/LRA”), which provides:

“For the purpose of this item, an unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving– the unfair discrimination, either directly or indirectly, against an employee on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.”

The appellant contends that in the absence of a rational policy, plan or programme which justified his non-appointment the respondent acted in an inherently arbitrary manner, in failing to appoint him based on his race and colour. This, he says, violated item 2(1)(a) and therefore was unfair, even if this occurred within the constitutional imperative to advance persons, groups and/or categories of people previously disadvantaged by unfair discrimination.

[13]   On the other hand, the respondent’s case is that, objectively viewed, the appointment of Mr Mkongwa is immune from judicial scrutiny as it was a measure in itself designed to achieve the constitutional imperative of promoting equality and transforming the public service. It was submitted that Mr Mkongwa was a black person who was obviously disadvantaged by past unfair discrimination and his preference over the appellant was a measure, in itself without more, designed to achieve his advancement to enable his full and equal enjoyment of all rights and freedoms in the Constitution of the Republic of South Africa, 1996. This, it was submitted, was the objective of his appointment, which is the important element in the process and not whether there was an overarching policy, plan or programme in terms of which the appointment was made. It was further submitted that, in any event, it was not obligatory to have a programme, plan or policy in place to advance this constitutional imperative.

[14]   The question therefore is whether the appointment of Mr Mkongwa, a black candidate, instead of the appellant, a white candidate, found more suitable by the selection panel, is immunised from judicial scrutiny by the respondent’s ipse dixit, without more, that it was an affirmative action appointment in furtherance of the constitutional imperative of promoting equality.

[15]   Item 2(1)(a) must be read with item 2(2)(b) [now repealed – Ed] in the same schedule which provides:

“For the purposes of sub-item (1)(a)– (b) an employer is not prevented from adopting or implementing employment policies and practices that are designed to achieve the adequate protection and advancement of persons or groups or categories of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms.”

These provisions are clearly based on section 8 of the Interim Constitution,  which was applicable at the time. Section 8 provided:

“Section 8. Equality

1. Every person shall have the right to equality before the law and to equal protection of the law.
2. No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.
3.(a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms.”

[16]   The first issue requiring attention is the proper approach to section 8 and items 2(1)(a) and 2(2)(b). It can hardly be contested that the appellant was discriminated against on the basis of his colour and race. The issue is whether this was unfair and therefore not countenanced by section 8.10  The thrust of section 8 was to “guarantee both equality before the law and equal protection of the law, and prohibits unfair discrimination both generally and on the particular grounds of race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language”.  The section further makes provision for measures designed for the advancement of persons and groups disadvantaged by past racial discrimination. This, in essence permits unequal treatment where the objective is to promote equality.  This has been found to contemplate the substantive form of equality as opposed to the formal type. See Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) at paragraph 26–27 where Moseneke J states:

“[26]   The jurisprudence of this Court makes plain that the proper reach of the equality right must be determined by reference to our history and the underlying values of the Constitution. As we have seen a major constitutional object is the creation of a non-racial and non-sexist egalitarian society underpinned by human dignity, the rule of law, a democratic ethos and human rights. From there emerges a conception of equality that goes beyond mere formal equality and mere non-discrimination which requires identical treatment, whatever the starting point or impact. Of this Ngcobo J, concurring with a unanimous Court, in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism & others observed that:

‘In this fundamental way, our Constitution differs from other constitutions which assume that all are equal and in so doing simply entrench existing inequalities. Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it.’

[27]   This substantive notion of equality recognises that besides uneven race, class and gender attributes of our society, there are other levels and forms of social differentiation and systematic under-privilege, which still persist. The Constitution enjoins us to dismantle them and to prevent the creation of new patterns of disadvantage . . .”

[17]   Affirmative action is unquestionably the most embraced means to promote equality and it entails in essence the upliftment of those who were disadvantaged by unfair discrimination. Mahomed J commented in Shabalala v Attorney-General, Transvaal & another 1996 (1) SA 725 (CC) at paragraph 16 that:

“Viewed from this angle therefore it is clear that the Constitution aims to redress historical inequities and imbalances. It requires as a constitutional imperative that the public service be broadly representative of the South African community. The attainment of this constitutional objective, in particular in the public service would be impossible without a programme of affirmative action.”

[18]   The question that arises in our case is whether the appointment of Mr Mkongwa was a measure within the contemplation of item 2(2)(b) read in the context of section 8(3)(a). The respondent submits that it was such a measure even though it was ad hoc. The resolution of this question involves an investigation whether the appointment in itself was designed to achieve the constitutional imperative of promoting equality. Section 8(3)(a) contemplates “measures” whilst item 2(2)(b) contemplates “policies” and “practices” (as the means) to advance the constitutional imperative and both provide that these must be ‘designed to achieve . . . adequate protection and advancement . . .”. It has been found that measures that are found to be inherently arbitrary and/or irrational cannot be said to have been designed to achieve the objective of the constitutional imperative of equality. The decision in Stoman v Minister of Safety and Security 2002 (3) SA 468 (T) illustrates this at 480A–D where the court said:

“I am respectfully in agreement with the learned Judge in the Public Servants Association case that a policy or practice which can be regarded as haphazard, random and over-hasty, could hardly be described as measures designed to achieve something. There must indeed be a rational connection between the measures and the aim they are designed to achieve. This view has also been expressed by academic writers, such as Mureinik in ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 SAJHR 31. I accept, at least for present purposes, that affirmative action measures are indeed reviewable, as found by Swart J in the Public Servants Association case, inter alia, based on the opinion expressed by Mureinik, and argued on behalf of the applicant in this case. In order to honour constitutional ideals and values, and to strive to truly move towards the achievement of substantive equality, proper plans and programs must be designed and put into place. Mere random and haphazard discrimination would achieve very little, if anything, and might be counter-productive.”

See, also, Minister of Finance v Van Heerden, supra, where Moseneke J at 139 said:

“[41]   The second question is whether the measure is ‘designed to protect or advance’ those disadvantaged by unfair discrimination. In essence, the remedial measures are directed at an envisaged future outcome. The future is hard to predict. However, they must be reasonably capable of attaining the desired outcome. If the remedial measures are arbitrary, capricious or display naked preference they could hardly be said to be designed to achieve the constitutionally authorised end. Moreover, if it is clear that they are not reasonably likely to achieve the end of advancing or benefiting the interests of those who have been disadvantaged by unfair discrimination, they would not constitute measures contemplated by section 9(2).”

[19]   Our jurisprudence shows that our courts have focused on the question whether policies, plans or programmes put up as measures designed to promote equality were indeed capable of achieving that objective. In Motala v University of Natal 1995 (3) BCLR 374 (D), what was sought to be impugned was a plan by the University to limit the number of Indian students in preference to black students, which recognised the several disadvantages suffered by black students in particular. Hurt J had this to say about that policy:

“On the papers before me, I was satisfied that the policy described by the deponents for the respondent was a “measure designed to achieve the adequate protection and advancement of…a group of persons [black students] disadvantaged by unfair discrimination.” (At 383B–C.)

[20]   In Stoman v Minister of Safety and Security a white police officer claimed that the failure to appoint him to an advertised post and the appointment instead of a black officer in terms of an equity plan of the South African Police Service amounted to unfair racial discrimination as he was the most suitable for the position. The equity plan was found by Van der Westhuizen J to be bona fide and designed to contribute to the promotion of equality and the protection and advancement of persons previously disadvantaged by unfair discrimination.  In Minister of Finance v Van Heerden, supra, at issue were certain rules of the Political Office Bearers Pension Fund which provided for differentiated employer contributions in respect of members of Parliament. The objective of the rules was to “ameliorate past disadvantage related to the pension benefits need of new political office bearers”. Having analysed the rules of the fund, Moseneke J stated at 142:

“[52]   I am satisfied that the evidence demonstrates a clear connection between the membership differentiation the scheme makes and the relative need of each class for increased pension benefits. The scheme was designed to distribute pension benefits on an equitable basis with the purpose of diminishing the inequality between privileged and disadvantaged parliamentarians. In that sense the scheme promotes the achievement of equality. It reflects a clear and rational consideration of the need of the members of the fund and serves the purpose of advancing persons disadvantaged by unfair discrimination.”

[21]   In Public Servants Association of SA & others v The Minister of Justice & others 1997 (3) SA 925 (T) (referred to in Stoman, supra), the Department of Justice had earmarked some posts in terms of an interim arrangement to implement affirmative action before the completion of a rationalisation process in the department and in the absence of a finalised affirmative action plan or programme. The only persons who were invited to apply for the earmarked posts and to the interviews were women. No explanation was, however, advanced for the basis upon which the posts were thus earmarked. The earmarking was criticised by the court as haphazard, random and over-hasty. For this reason, the court was of the view that the earmarking of the posts amounted to an “untrammelled discretion to earmark posts for designated groups without any overall plan or policy”. In this regard, the court reasoned that section 8(3)(a) required affirmative action measures to be designed to achieve the adequate protection and advancement of disadvantaged groups which was different to haphazard and random action.15

[22]   It cannot be disputed that in the cases referred to above what was at issue were plans, policies and/or programmes envisaging a pattern of conduct whose objective was to promote equality. Those measures that survived judicial scrutiny are those found to have been rationally connected to their objective. See Albertyn and Kentridge, supra, at 173 where they state that:

“The better view is that the use of the word ‘designed’ as opposed to ‘aimed’ imports the requirement of a rational relationship between means and ends. In other words, it is not sufficient that the purpose of the measures in question is to redress past discrimination – the means selected to effect that purpose must be reasonably capable of doing so. The latter reading is preferable because it is more likely to ensure that affirmative action programmes are carefully constructed in ways which are best able to accomplish what they set out to achieve.”

It is apparent from the cited cases that the plans and/or policies at issue were subjected to scrutiny to determine if they were rationally connected with the constitutional imperative of promoting and/or achieving equality and that ad hoc and random action was found to be incapable of meeting the objective. From this it can be deduced that properly formulated programmes go a long way to satisfying the requirement of rationality. This is so since a properly crafted programme or policy provides a basis upon which it can be measured as to whether it meets the constitutional objective. In Public Servants Association of South Africa v Department of Justice there was no policy or plan in place but an ad hoc arrangement which was found to be random and haphazard and therefore not designed to achieve the required purpose. See, also, Eskom v Hiemstra NO (1999) 20 ILJ 2362 (LC). This, in my view, clearly shows that the term “measures” as set out in section 8(3)(a) as well as the term “practices” and “policies” in item 2(2)(b) of Schedule 7 of the LRA mean something much more than mere ad hoc or random action as we have in this case.

[23]   The injunction that the public service must be broadly representative is an important one. It enjoins those in charge to strive towards representivity. This in my view calls for attention to be focused on the respects in which the service is not representative and what measures should be implemented to achieve the required representivity. This suggests that a properly considered policy or plan to address the situation as opposed to ad hoc means is the way to go to achieve representivity. It must therefore be so that ad hoc and random action is impermissible. Compare Independent Municipal and Allied Workers Union v Greater Louis Trichardt Transitional Local Council (2000) 21 ILJ 1119 (LC) at 1125, paragraph 19, where it was said:

“There appears to be no doubt therefore that for affirmative action to survive judicial scrutiny the following is relevant:

19.1 there must be a policy or programme through which affirmative action is to be effected;
19.2 the policy or programme must be designed to achieve the adequate advancement or protection of certain categories of persons or groups disadvantaged by unfair discrimination.”

[24]   In casu, the appointment of Mr Mkongwa is sought to be justified on the basis that it was a measure in itself of advancing Mr Mkongwa who was disadvantaged by past discrimination. Mr Mkongwa’s race was therefore the only basis on which his appointment was sought to be linked to the constitutional imperative by the commission even though the selection panel did not support it. From the evidence it is clear that the respondent did not have a policy or overarching plan of affirmative action. The secretary of the commission, Dr Ndlovu, who testified, was unable to provide a coherent basis for rejecting the selection panel’s recommendation. His view was simply that this was a case where affirmative action had to be implemented. He could not provide any evidence of guidelines by his commission to the respondent in terms of which representivity was to be addressed in the recruitment process. His evidence demonstrates that the commission itself had not applied its mind to the implementation of affirmative action: they simply held a view in this case that a black candidate should be appointed. He could provide no evidence of how that appointment would have made the respondent more representative, nor was he able to provide a factual basis of the demographics which prompted the commission to impose its view on the respondent.

[25]   It has to be pointed out, as appears from the cases cited, that the policies, plans and/or programmes involved there were crafted in consideration of the context, such as identifying relevant demographics and the gaps in representivity that had to be addressed through affirmative action. This was not the case here nor was the application of affirmative action one of the criteria applicable in the selection of candidates. These are issues that would have been catered for in a specially formulated plan, policy or programme which would have provided the basis of the appointment. Clearly, the appointment was an ad hoc and arbitrary act. It can never in itself amount to a measure within the contemplation of section 8(3)(a) or section 9(2) which clearly require something much more than an ad hoc act. The appointment was not a measure in itself and was clearly inherently arbitrary and therefore unfair as contemplated in item 2(1)(a).

[26]   Therefore the submission that the appointment of Mr Mkongwa was in itself a measure within the contemplation of section 8(3)(a) is misconceived. Furthermore, the submission that the appointment was a “practice” within the meaning of item 2(2)(b) is also misplaced. Even if one were to find that the term “measures” in section 8 also contemplates a practice, a single act or appointment is not and can never amount to a practice. The terms “practice” and “measures” presuppose more than one act. The language of the Constitution must be respected. One cannot give a term in the Constitution a meaning inconsistent with it. In S v Zuma 1995 (2) SA 642 (CC) at paragraph 17, the court said:

“I am, however, sure that Froneman J, in his reference to the fundamental ‘mischief’ to be remedied, did not intend to say that all the principles of law which have hitherto governed our courts are to be ignored. Those principles obviously contain much of lasting value. Nor, I am equally sure, did the learned Judge intend to suggest that we should neglect the language of the Constitution. While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument. I am well aware of the fallacy of supposing that general language must have a single ‘objective’ meaning. Nor is it easy to avoid the influence of one’s personal intellectual and moral preconceptions. But it cannot be too bly stressed that the Constitution does not mean whatever we might wish it to mean.”

[27]   In the circumstances of this case and in view of the absence of a plan or policy in terms of which affirmative action was to be applied, the respondent was obliged to comply with the legislative framework applicable at the time in selecting candidates. There are a number of provisions in the Public Service Act 103(P) of 1994 (“the PSA”) and the Interim Constitution which are relevant regarding appointments in the public service. Section 11(1)(b) of the PSA provides:

“Only the qualifications, level of training, merit, efficiency and suitability of the persons who qualify for the appointment, promotion or transfer in question, and such conditions as may be determined or prescribed or as may be directed or recommended by the commission for the making of the appointment or the filling of the post, shall be taken into account.”

The high-water mark of this provision is that no person who qualifies for appointment shall be favoured or prejudiced and that suitability amongst others shall be the criteria to be considered when making appointments. Section 212(2) of the Interim Constitution provided, inter alia, that the public service should “promote an efficient public administration broadly representative of the South African community”. In turn, section 212(4) of the Interim Constitution provides:
“In the making of any appointment or the filling of any post in the public service, the qualifications, level of training, merit, efficiency and suitability of the persons who qualify for the appointment, promotion or transfer concerned, and such conditions as may be determined or prescribed by or under any law, shall be taken into account.”

[28]   There is clear emphasis in these provisions that suitable candidates cannot be denied appointment if they comply with stipulated requirements, even though representivity is the objective. Therefore, in the quest to attain representivity, efficiency and fairness were not to be compromised. To justify the failure to appoint a candidate who complied with stipulated requirements it had to be shown that that action was not unfair. The evidence at our disposal is clear that the respondent did not have an affirmative action plan or policy in terms of which it appointed Mr Mkongwa. The evidence is also clear that the selection panel found the appellant to be the most suitable candidate and recommended that he be appointed. It is also common cause that the appellant complied with all the requirements for the post in terms of section 11(1)(b) of the PSA. In the light of all these facts, it was clearly unfair not to appoint him. The Labour Court was therefore incorrect to conclude that it was not a requirement for the respondent to have had a plan or programme first before appointing Mr Mkongwa. In the circumstances, the appellant has succeeded in showing that the failure to appoint him was inherently arbitrary and therefore amounted to unfair discrimination which is an unfair labour practice as contemplated in item 2(1)(a).

[29]   It follows that the appeal must be upheld.