South African Police Services v Solidarity obo Barnard (JA24/2010) [2012] ZALAC 31 (2 November 2012)

Principle:

(1)   It is misconstrued to implement the restitutionary measures contained in the Employment Equity Act (EEA) and an employment equity plan, as being subject to an individual's right to equality.

(2)   The employer is the only party answerable regarding service delivery matters, and it is not open to a court to 'second guess' a decision that not filling a post will or will not compromise service delivery.

Facts:

Barnard, a captain in the SA Police Services, claimed unfair discrimination based on the allegation that she was denied promotion on two occasions for the sole reason that she was white. The SAPS had created a new post of superintendent of the National Evaluation Service (NES), the function of which was to ensure optimal utilization of human, logistical and financial resources in the NES. Barnard was interviewed for the post together with six other candidates (four blacks and two whites). On assessment she received a rating of 86,67%, the highest score obtained by any candidate. The next highest ratings were given to 2 white male applicants, followed by 4 black male applicants. The highest rated black candidate was given a score of 69,17%. The selection panel recommended Barnard's appointment, stating that given the difference between the scores, service delivery would be adversely affected if she was not appointed. The panel also stated that representivity in the NES would not be affected as Barnard was already a member thereof.

The panel's recommendation was referred to the Divisional Commissioner who recommended that post not be filled because the appointment would aggravate the representivity status of the already under-represented department and would not enhance service delivery to a diverse community. The post was left vacant and the position readvertised. Barnard reapplied for the post. She was again short-listed and interviewed with seven other candidates, and the panel again recommended her appointment. She again scored the highest at 85% followed by 2 black male candidates at 78% and 74%. Again, a meeting was held at divisional level to discuss the panel's recommendations. The Commissioner supported Barnard's appointment but the National Commissioner did not approve the recommendation and withdrew the post because the appointment would not have addressed representivity. He called for the post to be readvertised.

Barnard filed a complaint in terms of the grievance procedure in respect of her non-appointment. The written reply to her grievance stated in essence that the recommendation in respect of the post did not address representivity and that the post was not critical and further that leaving it vacant would not affect service delivery.

The Labour Court held that the failure to promote Barnard was a decision based on her race, that this constituted discrimination, and that the SAPS had failed to discharge the onus of proving that the discrimination was fair. The LC held that the provisions of the Employment Equity Act and an employment equity plan must be applied in accordance with the principles of fairness and with due regard to the affected individual's constitutional right to equality.

The essence of the judgement appeared to be that it is not appropriate to apply the numerical goals set out in an employment equity plan without considering all relevant factors. That approach is too rigid. Due consideration must be given to the particular circumstances of individuals potentially adversely affected. In this regard the need for representivity must be weighed up against the affected individual's rights to equality and the need for operational efficiency. The LC also took the view that where a post could not be filled due to the lack of suitable candidates from an underrepresented category, promotion to the post should not 'ordinarily' be denied to a suitable candidate from another group.

The LC duly appointed Barnard into the position. This judgment was taken on appeal to the LAC by the SAPS, which then overturned the LC decision.

The fundamental issue raised in the appeal concerned the relationship between sections 9(1) and (2) of the SA Constitution, which read:

'(1)   Everyone is equal before the law and have the right to equal protection and benefit of the law.

(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.'
The LAC was required to determine whether the LC was justified in concluding that the restitutionary measures envisaged in Section 9(2) 'must be applied in accordance with the principles of fairness and with due regard to the affected individual's constitutional right to equality' found in section 9(1). The restitutionary measures in question are the Employment Equity Act (EEA) and the SAPS employment equity plan adopted in terms of the EEA.

The LAC rejected the LC's view that equity measures should be stifled if their implementation adversely affected persons from non designated groups. The implementation of affirmative action should not be trumped by an individual's right to equality. If that were the case, it would defeat the very purpose of the Employment Equity Act, which is designed to achieve broader equitable treatment within our society and thereby redress past imbalances. This would then promote the interests of persons from non designated groups to continue to enjoy an unfair advantage resulting from past inequalities.

The LAC took the view that the SAPS was under no obligation to fill the post in question, and could have elected to re-advertise the post or promote a candidate from the designated group other than the recommended candidate, taking into consideration employment equity considerations. Under the circumstances of this case, discriminating against Barnard was in the LAC's view clearly justifiable. The LAC criticized the LC's finding that the SAPS National Commissioner had compromised service delivery by not making the appointment, stating that it is not open to the court to do so. The National Commissioner is the only party answerable regarding service delivery matters, and it is not open to a court to 'second guess' a decision that not filling a post will or will not compromise service delivery.

Extract from the judgment:

[26]   It is misconstrued, in my view, to render the implementation of restitutionary measures subject to the right of an individual's right to equality. This point was ably advanced by counsel for the appellant and the amicus. A contrary approach would, in my view, defeat the very purpose of having restitutionary measures in the first place, as such implementation will always fall short, due to the reality that there will always be adverse effects on persons from non designated groups. The relegation of restitutionary measures on the basis laid down by the Labour Court cannot be countenanced as I will show shortly.

[27]   The essence of restitutionary measures is to guarantee the right to equality for the reason that, without such measures, the achievement of equitable treatment will continue to elude us as a society. The Labour Court (Waglay J as he then was) commented, in Jacobus J P Harmse v City of Cape Town, that the implementation of employment equity orientated measures is a duty placed upon designated employers by the Employment Equity Act which also provides them with affirmative action as a defence against claims of unfair discrimination. Commenting on that decision, Prof Carole Cooper states that employment orientated measures 'do not amount to an exception to equality but are integral to its achievement' which is in essence 'substantive equality'.

[28]   The statement by our Constitutional Court in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others. illustrates this eloquently:

'[t]he commitment to achieving equality and remedying the consequences of past discrimination is immediately apparent in section 9(2) of the Constitution. That provision makes it clear that under our Constitution "[e]quality includes the full and equal enjoyment of all rights and freedoms". And more importantly for present purposes, it permits "legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination". These measures may be taken "[t]o promote the achievement of equality".

But transformation is a process. There are profound difficulties that will be confronted in giving effect to the constitutional commitment of achieving equality. We must not underestimate them. The measures that bring about transformation will in equitably after some members of the society adversely, particularly those coming from the previously advantaged communities. It may well be that other considerations may have to yield in favour of achieving the goals we fashioned for ourselves in the Constitution. What is required, though, is that the process of transformation must be carried out in accordance with the Constitution.'


[29]   The point is aptly driven home in another Constitutional Court decision, Minister of finance and Another v Van Heerden, that:

'[A] comprehensive understanding of the Constitution's conception of equality requires a harmonious reading of the provisions of section 9. Section 9(1) proclaims that everyone is equal before the law and have the right to equal protection and benefit of the law.... However section 9(2) provides for the achievement of full and equal enjoyment of all rights and freedoms and authorises legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination....

Equality before the law protection in section 9(1) and measures to promote equality in section 9(2) are both necessary and mutually reinforcing but may sometimes serve distinguishable purposes... However, what is clear is that our Constitution, and in particular section 9 thereof, read as a whole, embraces for good reason a substantive conception of equality inclusive of measures to redress existing inequality. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.'


[30]   On the basis of this discussion, it is clear that the Labour Court erred in treating the implementation of restitutionary measures as subject to the individual conception of a right to equality. This is more so as this approach promotes the interests of persons from non designated categories to continue enjoying an unfair advantage which they had enjoyed under apartheid. Treating restitutionary measures in this manner is surely bound to stifle legitimate constitutional objectives and result in the perpetuation of inequitable representation in the workplace.

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[46]   The Labour Court's conclusion that the failure to appoint Barnard compromised service delivery is also misconstrued. The National Commissioner is the accounting officer of the appellant and is the only person who is answerable regarding service delivery matters. It is not open to a court to 'second guess' a decision that not filling a post will or will not compromise service delivery. In this case the National Commissioner, as the responsible accounting officer, decided not to fill the advertised post which he subsequently withdrew. In any event, I am of the view that the National Commissioner was the only person well-placed to determine if service delivery would be compromised by the failure to fill the post and his decision that this would not be so is unassailable. Frankly speaking that is his prerogative and should he be incorrect in so deciding and imperil service delivery as a result, he is answerable to his accounting authority, being the Minister and ultimately to Parliament. The National Commissioner is similarly answerable in that manner should he fail to achieve the targets set out in the Employment Equity Plan. Our role as courts is to determine if any conduct, alleged to be based on an Employment Equity Plan, for instance, is justifiable in terms of that plan such as we have here. It is not open to a court to dictate to the National Commissioner that he is compromising service delivery and should fill a post.