Solidarity obo Barnard v SAPS (165/2013)  ZASCA 177 (28 November 2013)
- The mechanical application of formulae and targets falls foul of the Employment Equity Act, which prohibits quotas. Numerical targets and representivity cannot be absolute criteria for appointments. In assessing fairness, a flexible and 'situation sensitive' approach is required, based on the facts of each case.
- The fact that no appointment is made does not necessarily mean no discrimination took place. If discrimination is established, the onus is then on the employer to lead evidence to establish that the discrimination is fair.
- While an employer may not be obliged to fill a vacancy, it does not follow that when the only suitable applicant is from the non designated group, that person should not be appointed. This is particularly so when there is no rational explanation for not appointing that person.
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. On assessment she received the highest rating, 17.5% higher than any other applicant. 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 adversely affected as Barnard was already employed there. By promoting her, it would also create opportunities lower down the organisation to address affirmative action.
The panel's recommendation was referred to the Divisional Commissioner who decided that the post should not be filled for employment equity reasons. Six months later the post was readvertised and Barnard reapplied. She was again short-listed and interviewed with seven other candidates. The panel again recommended her appointment, Barnard having scored highest at 85%. The Divisional Commissioner this time supported her appointment.
Notwithstanding the above, the National Commissioner did not approve the recommendation and called for the post to be readvertised. In summary, reasons given were the following:
- the recommendation did not address representivity;
- the post was not critical; non-filling of the post would not affect service delivery.
The fundamental issue raised in the LAC appeal concerned the relationship between sections 9(1) and (2) of the SA Constitution. 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. The LAC felt that 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.
As stated above, the SCA emphasised that in assessing fairness, a flexible and 'situation sensitive' approach is required based on the facts of each case. The facts in this case largely determined the outcome, and the SCA criticised the LAC for failing to scrutinise the facts. The only witness for the SAPS had no first-hand knowledge of the facts. As such, much of his evidence was inadmissible or carried little weight. The SCA was critical of the fact that the National Commissioner did not give evidence to substantiate the crucial decisions he made.
The effect of the SCA on appeal overturning the LAC decision was that the non appointment of Mrs Barnard was found to constitute unfair discrimination. She received compensation based on the difference between what she continued to earn as a captain and would she would have earned had she been appointed as a superintendent, calculated over a 2 year period.
Extract from the judgment:
Coram: NAVSA ADP, PONNAN, TSHIQI & THERON JJA & ZONDI AJA
 This appeal, which deals with the application of the Employment Equity Act 55 of 1998 (EEA) and an Employment Equity Plan (EEP) devised in terms thereof, is a peculiarly South African tale. It demonstrates the difficulties we face in forging a future in which everyone ultimately will have a place in the sun. In our journey towards that end we have in juxtaposition those who were previously denied opportunities and those who had them. In redressing the skewed situation created by our racist past, and to recalibrate and achieve a balanced society, there has to be an accommodation and a scrupulous adherence to fairness. It is that exercise that has as a consequence difficult, awkward and even acrimonious moments for those who find themselves in contestation and for society as a whole. Sometimes we get it right and sometimes we get it wrong. We are, of course, dealing with the legacy of an institutionalised racially divisive past, the effect of which continues to haunt us as a nation recently come to democratic values. Put simply, we are experiencing nationhood's growing pains.
 In my view, the LAC's conclusion that Barnard was not discriminated against - contradicted in a later paragraph of its judgment - because the vacancy had not been filled, is flawed. In Gordon v Department of Health: KwaZulu-Natal  11 BLLR 1023 (SCA) Mlambo JA, as he then was, in considering the position where a black candidate was appointed ahead of a white candidate recommended by a selection panel, stated that: 'It can hardly be contested that the appellant was discriminated against on the basis of his colour and race'. In that case the appeal was upheld on the basis that the Department of Health had no policy or plan in place for the implementation of affirmative action measures and that consequently the discrimination complained of was unfair. In the present case Mlambo JP took the view that the application of the EEA was justification for Barnard's non-appointment.
 If a senior African female or male police officer had all of Barnard's skills and had achieved the same interviewing score, that person would most surely have been appointted to post 4701. It can 'hardly be contested' that in the present case Barnard was not appointed because she was a white female. In Gordon the appellant's grievance, like Barnard's, was that he had not been appointed when he should have been. The LAC, in my view, erred in holding that the fact that no appointment had been made meant that there had been no discrimination.
 Of course, if the National Commissioner had appointed one of the African male candidates who had also been interviewed and explained that, although the latter's interview score was lower than Barnard's, he was nevertheless suitable for the job and that he approved the appointment as an affirmative action measure, and assuming further that the explanation was borne out by the objective facts, the SAPS would have established that the discrimination complained of was fair and the present debate might well not have ensued.
 In Van Heerden, Moseneke J reminded us that it is 'incumbent on courts to scrutinise in each equality claim the situation of the complainants in society; their history and vulnerability; the history, nature and purpose of the discriminatory practice and whether it ameliorates or adds to group disadvantage in real life context, in order to determine its fairness or otherwise in the light of the values of our Constitution. In the assessment of fairness or otherwise a flexible but "situation sensitive" approach is indispensable because of shifting patterns of hurtful discrimination and stereotypical response in our evolving democratic society'. (My emphasis.)
 Having determined that there was discrimination based on a specified ground, namely race, it is necessary to turn to the next question; whether the SAPS has established that the discrimination was fair. In this regard, the Constitutional Court in Harksen stated the following:
'The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.' It will be recalled that the justification on behalf of the National Commissioner for Barnard's non-appointment was scant. The first reason provided to Barnard and the recommendation panel was that her appointment to the post would not address representivity. Second it was stated that the posts were not 'critical' and that the nonfilling of the posts would not affect service delivery.
Although that case dealt with direct reliance on the equality clause in the Interim Constitution, the same test, in my view, would apply in relation to reliance on s 6 read with s 11 of the EEA.
 To determine whether the discrimination was fair, the facts in this case require closer and scrupulous scrutiny. Regrettably, this is not an exercise that the LAC embarked on. This appeal turns on the facts and it would be presumptuous to assert and foolish to assume that this decision will be a Merlin-like incantation to address the varied cases likely to come before courts in relation to the application of the EEA. In Van Heerden, as stated above, the assessment of fairness is said to require a flexiblebut 'situation sensitive' approach.
 In making the assessment it should be borne in mind that Barnard herself was part of a designated group, namely, she was female. One cannot ignore that she had previously applied for the same position and not only was she not appointed on the basis of representivity but a white male was moved laterally to fill-in, and the position was re-advertised. Since race representivity within organs of state is graphically obviously apparent, one could rightfully question how appointing somebody temporarily from a non-designated group promotes the employment equity cause and the image presented to the public and the SAPS itself.
 It is safe to assume that the interviewing panels are constituted to serve a purpose. They are a management tool, comprised in the present case of senior police officers to be of assistance to the National Commissioner when he makes a final decision on whether to fill a vacancy. Thus, one can conclude that even though he is not bound by a panel's evaluation and recommendation, the National Commissioner must at the very least give consideration to and engage with what is put before him by them. He discounts relevant and material factors at his peril, rendering him liable to legal challenge.
 Requiring the input and intervention of a Divisional Commissioner is another useful management tool and is sound policy. It ensures that the person who holds the highest authority in that division and who must be taken to understand the dynamics and needs within his or her geographical area of jurisdiction and within the management structures of the SAPS provides his or her insights to enable the National Commissioner to arrive at a just decision in terms of the EEA and the EEP. As with the input from the interviewing panel it can hardly be argued that the Divisional Commissioner's views are without value.
 It is necessary to consider a little more closely the interviewing panel's motivation for its recommendation, as set out in para 33. It contains more than the fact of Barnard's superior score which was close to ten per cent more than her nearest rival, which motivated the recommendation. It was also that she 'was the only candidate that during the interview displayed an unique blend of passion and enthusiasm to deal with members of the community that are unsatisfied with the services rendered by the South African Police Service'. Clearly the panel, which included three senior black police officers, saw that quality as distinctive and one that would enhance the services rendered by the SAPS. Having regard to Barnard's evidence concerning the nature of the job she was then performing at the NES as a captain, it appears not only that the NES served an essential function within the SAPS, but that the distinctive quality referred to above would be a commendable advantage in the more senior managerial position that she had applied for. Further, the panel saw fit to note as another distinctive feature, Barnard's high level of commitment toward the SAPS and her eagerness to contribute toward enhanced service delivery. Under cross-examination she was placed in the unenviable position of having to answer questions about whether her rivals for the position did not have the same attributes. What is abundantly clear is that the panel saw these as distinctive characteristics.
 Equally important is Commissioner Rasegatla's written recommendation, referred to in para 36 to the National Commissioner, which contained a motivation with factors beyond those stated by the evaluation panel. He took into account that she had already once before been overlooked in relation to post 6903, despite being the 'best candidate'. He considered it important that upon her second interview she was yet again rated the 'best candidate'. His concern, understandable because of his rank and managerial position, that the wrong signal would be sent to Barnard is not one that can lightly be discounted. Human resource management both in the private and public sector must be concerned about morale and cohesion within a workforce. Commissioner Rasegatla noted that competing candidates had had a year within which to meet the standard set by Barnard, but failed to seize the opportunity. Significantly, in the last sentence of his recommendation he speaks on behalf of the NES. That sentence bears repeating:
'National Evaluation Service strongly believes that in the interest of service delivery, and having denied this candidate the opportunity for promotion during the previous promotion phase, that the candidate should be appointed as recommended by the panel.' Counsel on behalf of the SAPS urged us to consider that representivity at level nine was the crucial factor and that any beneficial effect in relation to the lower level which might result because of Barnard's promotion to Superintendent should be discounted. It will be recalled that both the interviewing panel and Commissioner Rasegatla took the view that, in the event that Barnard was promoted to uperintendent within the NES, it would free up her position at the lower level (level eight) and present an opportunity to enhance representivity within the NES at that level. That idea is not entirely without merit. Barnard's promotion might thus very well have had the indirect effect of advancing the employment equity cause.
 If representivity was the genuine driver behind the National Commissioner's refusal to appoint Barnard and if he thought that either of her two rivals were deserving of appointment, the compelling conclusion is that he would have appointed one of them. In terms of the National Instruction, as stated earlier, the National Commissioner may reserve a position to meet employment equity needs and the strategic objectives of the SAPS. If representation was the genuine concern, one would have expected that he would at the very least have considered that option.
 The Labour Court appears to have been justified in holding, as it did in para 34 of its judgment, that 'it is reasonable to assume that [the National Commissioner] at least did not regard the other black candidates who were recommended as suitable'.
Pretorius AJ went on to say that whatever the witnesses may have said is of lesser importance because they did not make the decision. Having regard to the importance of the issue, and considering that his decision not to make a senior appointment was being impugned, one would have expected the National Commissioner to have provided assistance to the Labour Court in relation to his motivation and reasoning beyond the cryptic note signed on his behalf. There is no explanation provided for his failure to tender any other evidence in this regard. The effect is that there is no indication that he grappled with all of the issues raised by the recommendation panel and Commissioner Rasegatla. On the contrary, the indications are that he did not engage with what his own management team had put before him.
 The National Commissioner's decision not to make the appointment was also defended on the basis that the EEP would be violated if he had appointed Barnard. It was submitted that the representivity imbalance at level nine would be even more negatively impacted. It is important to note that the EEP, in its foreword, states that the focus of employment equity is on black people, women and persons with disabilities. In the executive summary referred to above, it is envisaged that 'suitably qualified persons from designated groups are equally represented in all occupational categories and levels'. Against the statutory background and the policy documents as well as the EEP it was never contended, nor could it be, that numerical targets and representivity are absolute criteria for appointment. Adopting that attitude would turn numerical targets into quotas which are prohibited in terms of the EEA. The LAC, in my view, erred in holding out the EEP as an absolute legal barrier to Barnard's appointment. The EEP's foreword makes it clear that whilst the focus is on employment equity, no employment policy or practise will be established as an absolute barrier to the appointment of suitably qualified persons from non-designated groups.
 It was also sought to justify the National Commissioner's non-appointment of Barnard on the basis that the post was not 'critical' and that therefore not filling it was justified. It is important to note that nowhere in any legislation relating to any post in the SAPS can the term 'critical' be found. It was agreed between the parties that there is no legal foundation for that categorisation. I turn to deal with the constitutional and statutory provisions that do apply to public administration, organs of state and appointments within the SAPS.
 Having regard to the constitutional principles that underpin public administration and organs of state, and the provisions of the SAPS Act referred to in the preceding paragraph, it can hardly be contended that a senior position such as the one under discussion was not given serious consideration when it was created and advertised. Ut simply, it must have been thought by all concerned that it was necessary in furtherance of the SAPS' mission of providing a professional and efficient police service. As stated above, Barnard's assertions in this regard in her statement of case in the Labour Court were uncontested. These considerations have to be weighed alongside Barnard's description of the importance of her job within the NES, including the role that it plays in the SAPS meeting its mission as well as the importance of a managerial position within that division. Against that background and in the absence of a reasoned motivation by the National Commissioner, one is left with the distinct impression that the explanation that the post was not filled because it was not 'critical' was contrived. This is all the more evident if one considers that after the first rejection, a senior Superintendent was moved laterally to fill-in temporarily. Moreover, the post was advertised on no less than three occasions, lending a lie to the assertion that it was not 'critical'.
 The LAC adopted the attitude that it is for the National Commissioner alone to determine whether service delivery would be affected by a post not being filled. In my view, that conclusion cannot be reached without closer scrutiny of the applicable constitutional and statutory provisions and the facts set out in the preceding paragraph. In this regard too, the LAC erred.
 In relation to the assertion on behalf of Barnard that the failure to appoint her would impact on service delivery, the following part of the heads of argument on behalf of the SAPS, bears repeating:
'Given the paucity of evidence in this respect, it cannot be argued that the failure to appoint Mrs Barnard prejudiced the interests of the SAPS.' Given that it bore the onus, the paucity of evidence is not a virtue for the SAPS. The evidence referred to in preceding paragraphs militates against the SAPS' case (and the National Commissioner does not assist their cause by not providing any evidence in explanation or rebuttal) and the conclusions by the LAC. The National Commissioner would have done well to remind himself that the National Instruction issued by him and which has the force of law, admonishes evaluation panels, not only to take into account the promotion of equal opportunities and employment equity but also to have regard to whether the promotion would advance service delivery. The letter referred to in para 30 above, sent to all Provincial Commissioners, Divisional Commissioners and Deputy National Commissioners urged the interviewing panel to focus on the appointment of persons who would enhance service delivery. Failure to appoint Barnard to a position which, in terms of the regulatory constitutional and statutory framework must have been necessary leads ineluctably to the conclusion that service delivery must have been affected.
 Further, the negative impact of a double rejection on dubious grounds on a loyal and dedicated servant of the SAPS, such as Barnard, cannot, as identified by Commissioner Rasegatla, be overlooked. On this aspect we are dealing with the impact on both the aggrieved individual and on the SAPS. If we are to build a cohesive society with cohesive components within the state structure, we have to be 'situation sensitive'.
 Whilst it is true that in terms of the National Instruction the National Commissioner is not obliged to fill a vacancy, the most obvious instance being where there is no suitable person capable of fulfilling the requirements of the position, it does not follow that where the only suitable person is from a non-designated group in relation to representivity, that person should not be appointed. The foreword to the EEP makes that clear. This is particularly so where there is no rational or proffered explanation, or none proffered at all.
 No doubt many South Africans will agree that those previously advantaged might in appropriate circumstances have to forego employment opportunities in favour of employment equity. In the present case, having regard to all the circumstances and bearing in mind the onus that rests on the SAPS, and for all the reasons set out earlier, it cannot in my view be concluded that it has been established by the SAPS that the discrimination complained of was fair. In the result the decision by the LAC, for which there is no factual foundation given the dearth of evidence to which I have alluded, cannot stand.
 As stated earlier, the facts in this case determine the outcome. In striving to achieve an egalitarian society and in addressing employment equity whilst maintaining fairness as a standard and meeting the country's needs there can be no victors nor should there be persons considered to be vanquished. Dealing with race classifications, as is necessary under the EEA, feels almost like a throw back to the grand apartheid design. If we are to achieve success as a nation, each of us has to bear in mind that wherever we are located, particularly those of us who have crossed over from the previous oppressive era into our present democratic order, it will take a continuous and earnest commitment to forging a future that is colour blind. This necessarily includes serious and sustained efforts to overcome the prejudices that inevitably attach to us because of our programming, relative to the segregated societies from which we emerged, in order to build a cohesive and potentially glorious rainbow nation. For now, ironically, in order to redress past imbalances with affirmative action measures, race has to be taken into account. We should do so fairly and without losing focus and reminding ourselves that the ultimate objective is to ensure a fully inclusive society - one compliant with all facets of our constitutional project.
 It was agreed that in the event of Barnard being successful, compensation would necessarily be the difference between what she would have earned as a Superintendent and what she continued to earn as a captain, but limited to a two year period. That is the effect of the order by the Labour Court. Although counsel on behalf of the SA suggested that it was the upper limit and that it was perhaps too generous, he could not, in principle, object to such an order. The following order is made:
- The appeal is upheld with costs including the costs of two counsel.
- The order of the Labour Appeal Court is set aside and substituted as follows:
'The appeal is dismissed with costs.'