South African Police Service v Solidarity obo Barnard [2014] ZACC 23

Principle:

Once an affirmative action policy passes the test in s 9(2) of the Constitution (that is, it must target a particular class of people who have been susceptible to unfair discrimination; it must be designed to protect or advance those classes of persons; and it must promote the achievement of equality) it is neither unfair nor presumed to be unfair. This does not however oust the court's power to interrogate whether the measure is a legitimate restitution measure. It must be rationally related to the terms and objects of the measure. It must be applied to advance its legitimate purpose and nothing else.

Facts:

During 2005 the SAPS created a new post of Superintendent of the 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 an average rating of 86,67%, the highest score obtained by any candidate. The difference between Barnard's score and that of a black candidate was 17,5 %. In its recommendation the selection panel stated that given the difference between the scores, service delivery would be adversely affected if the latter were to be appointed. The panel also stated that representivity in the NES would not be affected as Barnard was already a member thereof. The recommendation stated further: "The panel agrees that the appointment of Captain Barnard will definitely enhance service delivery".

The panel's recommendation was discussed at a meeting with the Divisional Commissioner the following day. The upshot was that Divisional Commissioner Resegatla recommended that the post not be filled because "appointing any of the first three preferred candidates will aggravate the representivity status of the already under-represented Sub-Section: Complaints Investigation" and that "such appointment will not enhance service delivery to a diverse community". The post was left vacant and in fact withdrawn. The reason Barnard was not appointed to that post was that she was white.

The same position was advertised, again as a "non-designated post" and again Barnard applied for the post. She was again short-listed and was interviewed this time with seven other candidates, four African males, one African female, one "coloured" male and one white male. The panel recommended her appointment.

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 did not address representivity.

This decision was contested first in the Labour Court in Solidarity obo Barnard v SA Police Services (LC case no. JS455/07 dated 24/02/2010). The Labour Court held that 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 and the need for operational efficiency. It is not appropriate, the court said, to apply 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.

This decision was appealed in South African Police Services v Solidarity obo Barnard (JA24/2010) [2012] ZALAC 31 (2 November 2012) and the LAC reversed the LC's decision. It held that it is misconstrued to implement restitutionary measures contained in the EEA and an employment equity plan, as being subject to an individual's right to equality. 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.

This decision was itself appealed to the SCA in Solidarity obo Barnard v SAPS (165/2013) [2013] ZASCA 177 (28 November 2013).The SCA - in a unanimous judgment of 5 judges -held that the mechanical application of targets falls foul of the EEA; a flexible and 'situation sensitive' approach is required. The SCA held that the fact that no appointment is made does not necessarily mean no discrimination took place.

Finally the Constitutional Court had to consider the matter. The majority judgment (7 judges; 5 other judges wrote minority judgments) started with the constitutional requirements for an affirmative action measure: The measure must-

  1. target a particular class of people who have been susceptible to unfair discrimination;
  2. be designed to protect or advance those classes of persons; and
  3. promote the achievement of equality.

Once the measure in question passes the test, it is neither unfair nor presumed to be unfair. This is so because the Constitution says so. It says measures of this order may be taken. The constitution is explicit that affirmative action measures are not unfair. This however, does not oust the court's power to interrogate whether the measure is a legitimate restitution measure. The manner in which a properly adopted restitution measure was applied may also be challenged - there is no valid reason why courts are precluded from deciding whether a valid Employment Equity Plan has been put into practice lawfully. It must be rationally related to the terms and objects of the measure. It must be applied to advance its legitimate purpose and nothing else.

The court found that the SAPS affirmative action policy complied with these requirements. Further, the National Commissioner exercised his discretion not to appoint Ms Barnard rationally and reasonably and in accordance with the criteria in the affirmative action measure, in pursuit of employment equity targets envisaged in section 6(2) of the Act.

Extract from the judgment:

Moseneke ACJ:

[31]   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...........................

[32]   Remedial measures must be implemented in a way that advances the position of people who have suffered past discrimination. Equally, they 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.

[33]   We must remind ourselves that restitution measures, important as they are, cannot do all the work to advance social equity. A socially inclusive society idealised by the Constitution is a function of a good democratic state, for the one part, and the individual and collective agency of its citizenry, for the other. Our state must direct reasonable public resources to achieve substantive equality "for full and equal enjoyment of all rights and freedoms." It must take reasonable, prompt and effective measures to realise the socio-economic needs of all, especially the vulnerable. In the words of our Preamble the state must help "improve the quality of life of all citizens and free the potential of each person." That ideal would be within a grasp only through governance that is effective, transparent, accountable and responsive. Our public representatives will also do well to place a premium on an honest, efficient and economic use of public resources.

[34]   A closer scrutiny of the equality protection shows that direct or indirect unfair discrimination by the state or anyone on any of the listed grounds is forbidden. Discrimination on a listed ground is unfair unless shown not to be. National legislation must prevent unfair discrimination. The Act is a species of national legislation that regulates equality and non-discrimination at the workplace.

[35]   An allied concern of our equality guarantee is the achievement of full and equal enjoyment of all rights and freedoms. It permits legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination. Restitution or affirmative measures are steps towards the attainment of substantive equality. Steps so taken within the limits that the Constitution imposes are geared towards the advancement of equality. Their purpose is to protect and develop those persons who suffered unfair discrimination because of past injustices.

[36]   The test whether a restitution measure falls within the ambit of section 9(2) is threefold. The measure must-

  1. target a particular class of people who have been susceptible to unfair discrimination;
  2. be designed to protect or advance those classes of persons; and
  3. promote the achievement of equality.

[37]   Once the measure in question passes the test, it is neither unfair nor presumed to be unfair. This is so because the Constitution says so. It says measures of this order may be taken. Section 6(2) of the Act, whose object is to echo section 9(2) of the Constitution, is quite explicit that affirmative action measures are not unfair. This however, does not oust the court's power to interrogate whether the measure is a legitimate restitution measure within the scope of the empowering section 9(2).

[38]   The next question beckoning is whether the manner in which a properly adopted restitution measure was applied may be challenged. The answer must be, yes. There is no valid reason why courts are precluded from deciding whether a valid Employment Equity Plan has been put into practice lawfully. This is plainly so because a validly adopted Employment Equity Plan must be put to use lawfully. It may not be harnessed beyond its lawful limits or applied capriciously or for an ulterior or impermissible purpose.

[39]   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. Although these are the minimum requirements, it is not necessary to define the standard finally...

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[58]   The gut of the complaint is that in declining to appoint her, the National Commissioner made an unlawful and unreasonable decision which must be set aside. To bolster the contention, she advanced a number of criticisms. The National Commissioner did not properly take into account her merit and competence. He had not brought to reckon all relevant factors before deciding on the promotion. He rather attached undue weight on demographic equity at the expense of her personal competence. The impugned decision was unreasonable because he furnished inadequate reasons for it. His letter in response to the recommendation of the interviewing panel was silent on the factors he weighed. That showed that he did not consider relevant factors other than those reflected in the rejection letter. Relying on WC Greyling, the respondent contended that where a decision maker exercises his power with a closed mind he will reach an unreasonable decision.

[59]   This is a new cause of action that departs from the respondent's averments in the statement of claim in the Labour Court. It is directed, not at unfair discrimination based on race under section 6(1) of the Act, but at reviewing and setting aside the National Commissioner's decision not to appoint her. It will be remembered that before the Labour Court, the National Commissioner decried the fact that no relief was sought to review his decision. Ms Barnard did not adjust her statement of claim to meet the response of the National Commissioner. Her present complaint amounts to a review of an impugned decision. It is urged upon us at the final appellate stage and as a new line of attack. This is impermissible.

[60]   The bid to review and set aside the decision of the National Commissioner is not properly before us. If he were not to be prejudiced, the National Commissioner was entitled to a proper notice of the review relief now sought. This would be in accordance with the principle of legality and also, if applicable, the provisions of Promotion of Administrative Justice Act (PAJA).Another consideration relates to the common law time limits for bringing review proceedings as well as the PAJA 180-day rule, if applicable. We have no explanation that would entitle us to overlook the delay. This belated attempt to seek the review and setting aside of the National Commissioner's decision must fail. Even if I were benevolently to entertain the review, it is without merit. This I say for the reasons that follow.

[61]   The respondent is correct in contending that the decision of the National Commissioner must be adjudged against the selection criteria for promotion prescribed by the Instruction. It will be recalled that earlier we recited the criteria. The candidate must have existing or potential competence to do the job applied for. Seemingly, competence could be evidenced by ancillary criteria listed, like prior learning and training, past experience and satisfactory performance and suitability. The latter is defined as an ability to function at the next higher post level. There are two self-standing additional requirements. The candidate must have an acceptable record of conduct and the promotion must heed the Employment Equity Plan of the relevant business unit. Should the Provincial or Divisional Commissioner recommend a promotion that does not address representivity at the level of the post in the business unit, she or he must record this with full motivation. It is against this consideration that we must evaluate the decision of the National Commissioner.

[62]   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.

[63]   Next is the issue of service delivery. It is so that Ms Barnard scored very well before the interviewing panel, not once but twice. On the second occasion, Mr Mogadima and Mr Ledwaba also scored well above average. Both obtained slightly lower scores than Ms Barnard. Ms Barnard correctly conceded that they were both appointable, that they would have provided satisfactory service and would not have compromised service delivery and had they been appointed, she would not have felt aggrieved.

[64]   But the issue is whether Ms Barnard's non-appointment would have sacrificed service delivery. The Supreme Court of Appeal thought so. Before this Court she accepted, contrary to the finding of that Court, that the decision not to appoint her did not adversely affect service delivery. It is so that the post was filled on an interim basis and later re-advertised. This does suggest that the position was needed. But, then again, the post was listed as non-critical, and the facts show that it was never ultimately filled. The National Commissioner chose to reconfigure the division concerned. There is no valid cause to reject the National Commissioner's operational assessment that service delivery would not have suffered from not appointing Ms Barnard.

[65]   What remains is the mainstay of Ms Barnard's contentions. Is the decision of the National Commissioner injudicious and invalid because he over-emphasised representivity at the expense of her competence? The question recast: was the National Commissioner entitled to refuse to fill the vacancy for the reason that it would have negatively affected the numerical targets of the Employment Equity Plan? If so, did he under-value the competence of Ms Barnard? More aptly, was the decision of the National Commissioner reviewable because it was unreasonable and thus unlawful?

[66]   The Employment Equity Plan obliged the National Commissioner to take steps to achieve the targets, provided he acted rationally and with due regard to the criteria set by the Instruction. He was within his right and indeed duty to take steps that would achieve the set targets. It is so that the implementation of a valid plan may amount to job reservation if applied too rigidly. But was that the case here? For several reasons, I do not think that the National Commissioner pursued the targets so rigidly as to amount to quotas. First, over-representation of white women at salary level 9 was indeed pronounced. That plainly meant that the Police Service had not pursued racial targets at the expense of other relevant considerations. It had appointed white female employees despite equity targets. Had the Police Service not done so, white female employees would not have been predominant in any of the levels including salary level 9 nor would they have been able to retain their posts.

[67]   Second, the decision not to promote Ms Barnard did not bar her from future promotions. She was at the time of the hearing in this Court a Lieutenant-Colonel. If her progress through the ranks of the Police Service was subject to strict equity considerations alone, she would have never been promoted past salary level 9 to a level 10 or higher post. Her stellar rise through the ranks needed more than racial representivity alone to preclude it. Clearly, the National Commissioner's decision was nowhere near an absolute bar to her advancement.

[68]   Another consideration is that, although Ms Barnard was unhappy about the outcome of her promotion bid, she was well aware that the interview and selection would occur within the strictures imposed by employment equity. She was alive to the targets under the Employment Equity plan and she accepted beforehand that although she may become the best candidate, that was not the only relevant consideration for appointment. Ms Barnard candidly testified that she knew when she applied for the promotion that the National Commissioner might decline to appoint her in pursuit of equity targets. Also, she was aware that there was an over-population of white female employees at salary level 9. She knew and accepted the targets under the Employment Equity Plan. She added that, had Mr Mogadima or Mr Ledwaba been appointed ahead of her, she would have had no grievance.

[69]   I am unable to agree that the reasons furnished by the National Commissioner for not appointing Ms Barnard are scant and attract an inference of unreasonable decision-making and illegality. Earlier, I have quoted verbatim the letters setting out the National Commissioner's reasons for declining to appoint Ms Barnard. The reasons must be read in conjunction with the comprehensive letter of the Divisional Commissioner in glowing support of Ms Barnard's candidature. The National Commissioner made express reference to the letter and must have been aware of Ms Barnard's competence. Even so, he chose to create an opportunity to enhance employment equity goals by not appointing her.

[70]   In my judgment, the National Commissioner exercised his discretion not to appoint Ms Barnard rationally and reasonably and in accordance with the criteria in the Instruction, in pursuit of employment equity targets envisaged in section 6(2) of the Act. The attempt at reviewing and setting aside his decision would, in any event, have failed.

[71]   Lastly, I have read the three carefully crafted concurring judgments of my brothers: Cameron J, Froneman J and Majiedt AJ; Van der Westhuizen J; and Jafta J. I concur in the judgment penned by Jafta J.

Conclusion

[72]   The appeal should succeed and the order of the Supreme Court of Appeal should be set aside. There should be no order as to costs.