Solidarity and Others v Department of Correctional Services and Others (CA23/13)  ZALAC 6 (10 April 2015)
The failure to take account of the impact of regional demographics on the nature and purpose of an Employment Equity plan, adversely reduces the contribution of restitution towards substantive equality, and hence the attempt to achieve the goal of developing a non-racial and non-sexist society. This complete failure to examine the region in which the plan is conceived, constitutes a sufficient legal obstacle against the plan being held to be in compliance with the EEA.
Several employees, Solidarity, a trade union, applied for particular posts in the organisation of the Department of Correctional Services ('DCS'). All these employees were unsuccessful in that they were not appointed to the positions for which they had applied. Subsequently, they launched an unfair labour practice dispute on the basis that the National Commissioner of the DCS' failure to appoint or promote them constituted an unfair labour practice based on discrimination. In essence, they contended that DCS' employment equity plan for the period 2010 to 2014 ("the plan") constituted a contravention of the Employment Equity Act 55 of 1998 ("EEA").
The employees contended that the DCS acted unlawfully by making appointments, transfers and promotions in terms of the plan but in breach of the EEA, as the plan required a rigid application of quotas based on demographic representivity. In their view, the plan was both racist and sexist in its utilisation of rigid quotas. They further contended that the plan took no account of regional demography.
It was common cause that, as a result of the plan, the application of the individual appellants for promotion had been declined, where otherwise their applications might have been successful. Most of the appellants had been recommended for employment by the relevant selection panel which had been constituted to conduct the necessary interviews for the advertised posts.
The individual appellants sought relief by way of actual promotion in cases where the posts had not been filled or alternatively constructive promotion; that is to be provided with pay and other benefits that they would have obtained had their applications been successful.
The LC held that "the most appropriate relief for the court to order in these circumstances is one that will benefit all employees of DCS in the Western Cape who are Black employees of the DCS and members of the Coloured community in the future."
In an appeal against this judgment, the LAC dismissed both appeal and cross appeal but made significant comments about quotas and regional demographics.
Extract from the judgment:
Waglay JP and Davis JA
 Section 15 of the EEA entitled "Affirmative Action Measures" sets out the requirements for these measures, particularly in s15 (2). Section 15(3) then provides that the measures referred to in s 15(2)(d) (measures to ensure the equitable representation of suitable qualified people from designated groups in all occupational categories and levels in the workforce) "include preferential treatment and numerical goals but exclude quotas." (our emphasis)
 These provisions thus provide certain restrictions in respect of the affirmative action measures which are legally permissible. In summary, persons appointed pursuant to affirmative action measures must be suitably qualified. Secondly, the measure may include preferential treatment and numerical goals but cannot include a quota. The term quota is not defined, although these provisions received the highest attention in Barnard, The Court in Barnard did not believe it necessary to define quota stating that it was not the appropriate case to so do. Moseneke ACJ did however say with reference to s15(4) of the EEA that there was a necessity for flexibility in the plan and "a designated employer may not adopt an Employment Equity Policy or practice that would establish an absolute barrier to the future or continued employment or promotion of people who are not from the designated groups".
 In his judgment, Moseneke ACJ provided further guidance as to the meaning of "quota" when he concluded that the appellant in Barnard had not pursued the targets so rigidly as to justify the conclusion that a quota was implemented. He proffered the following reasons therefore:
'[o]verrepresentation of white women (respondent was a 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...[t]he decision not to promote Ms Barnard had not barred her from future promotions.'....................
 A quota is defined in the Concise Oxford Dictionary, to the extent that it is relevant to this dispute, as "a fixed number of a group allowed to do something eg. immigrants entering the country".
 Much of the debate before this Court turned on the distinction between a quota, which in terms of the EEA, is an impermissible mechanism, and the permissible concept of numerical targets. The key distinguishing factor between these two concepts turns, it appears, on the flexibility of the mechanism. An inflexible set of numbers with which the designated employer is required to comply, "come what may" constitutes a quota and would therefore be in breach of s15(3) of the EEA. By contrast, a plan based on designated groups filling specified percentages of the workforce, but which allowed for deviations therefrom so that there was no absolute bar to present or continued employment or advancement of people who do not fall within a designated group (s15(4)) would pass legal muster. Similarly, a plan which provides that the numbers provided for in the plan constitute a goal to be achieved over a defined period would be congruent with the EEA. Of course, even in this case, a target may be designed to achieve a defined goal in a specified period, after which, absent some room for flexibility, the target could become a quota. If the plan is inflexible, then it must be struck down. See in this connection The South African Restructuring and Insolvency Practitioners Association v The Minister of Justice and Constitutional Development and Others 2015 WCC (Case no. 4314/2014).
 The problem confronting the court is that the appellants did not base their case specifically on the decision to refuse deviation in individual cases but focussed rather on the plan itself, which it is alleged acted in a discriminatory fashion towards the individual appellants. It is thus difficult to know precisely what considerations may or were taken into account by third respondent in refusing to deviate in these cases.
 Within the context of the EEA, it is clear from a reading of s2 that the achievement of equality is sought through the redress of structural disadvantage, which in turn, will create a more just and egalitarian social and economic order. Individual self-worth and thus the dignity of all who live in this country can only be attained by removing the hierarchy of privilege and power which was sourced in a racist and sexist system. This is manifestly the goal which s2(b) of the EEA seeks to achieve.
 Because Barnard, was concerned with the decision by the National Commissioner not to appoint Captain Barnard to an advertised position, the court in that case did not have to examine the equity plan. It follows that the test set out in van Heerden, was not strictly applicable to the determination thereof. But in this case, the three criteria which the court in van Heerden isolated in s9(2) to test restitutionary measures are directly relevant. To recapitulate: the measure should target a category of beneficiaries disadvantaged by unfair discrimination. This is reflected in the very nature of the DCS plan. Secondly, the measure must be "designed to protect or to advance such persons or categories of persons, and must be reasonably capable of obtaining the desire outcome". In terms of the plan, there is a provision for deviations, which can be implemented in the event that a rigid implementation of a plan would compromise service delivery or where it would not be possible to appoint suitably qualified people from designated groups to the relevant occupational categories and levels in the workforce. If rationally implemented, these deviations ensure that the plan does not have to be implemented in a rigid fashion, in which case the plan is reasonably capable of obtaining its desired outcome of a representative workforce which is suitably qualified and achieves service delivery. Thirdly, the court in van Heerden, supra held that the measure must promote "the achievement of equality". Hence, the test is concerned to ensure that the plan not impose disproportionate burdens or "constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits, that our long term constitutional goal would be threatened". It is here that the rights of persons who are not part of the designated category can be protected. That this protection must pass through the prism of the substantive nature of the right to equality makes this a most difficult part of the enquiry.
 It is clear from the testimony of Mr Magabula and Mr Bonani that this was the objective which the DCS had in mind when it developed its plan to ensure substantive equality for those who suffered the most egregious forms of discrimination under apartheid. In light of our observation regarding the third leg of the enquiry, there is a further important consideration which adds weight to the respondents' case; that is that the EEA must be read through the prism of s9(2). Inevitably, on the reading we have given to s9(2), weight is accorded in the balancing act to the position of the individual appellants even though there cannot be a blanket deference to a decision to promote disadvantaged groups. The EEA however recognises a need for balance. In the first place, a person appointed from a designated group must be suitably qualified for the position. Secondly, where an individual applicant possess scarce or unique skills which are relevant to the organisational needs of the designated employer, these must be taken into account; hence the prohibition against an absolute bar to employment. Thirdly, for reasons which will become apparent presently, a consideration of regional demographics in terms of s42 of the EEA may well come to the aid of categories of applicants who otherwise were unduly burdened by the implementation of the plan. Sachs J in Van Heerden; stated as follows:
'Given our historical circumstances and the massive inequalities that plague our society, the balance when determining whether a measure promotes equality is fair will be heavily weighted in favour of opening up opportunities for the disadvantaged. That is what promoting equality (s 9(2)) and fairness (s 9(3)) require.' In summary, in working with the approach as laid out in van Heerden, as well as the implicit content given thereto and portions of the Barnard judgment to which we have made reference, we are of the view that the DCS plan as presently constituted passes the test required in terms of the EEA reading it together with the Constitution.
 In redressing the agony of our dreadful history, it is apparent that difficult choices have to be made. In this, the Alberta decision is helpful. But whatever respect must be accorded to the decision-maker in the evaluation of a plan designed to effect restitution, a balance must be struck so as to promote the dignity of all. This conclusion then leads to the question of the cross-appeal and the importance of the regional demographic. The cross-appeal turned on the decision of Rabkin-Naicker J that the recruitment process as derived from the DCS plan had taken no cognisance whatsoever of the regional demographics of the Western Cape. This omission amounted to discrimination which was not protected by s6(2) of the EEA. The respondents, and particularly Mr Ngalwana, who appeared with Ms Karachi on behalf of the amicus, submitted that the relevant provision, s42 of the EEA had been amended pursuant to the Employment Equity Amendment Act 47 of 2013. Prior to this amendment, the Act, to the extent that it is relevant, provided that in determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General or any person or body applying this Act must take into account (the) demographic profile of the national and regional economically active population (s 42 (a) (i)).
 The 2013 Amendment Act replaced the "must" with a "may". Accordingly, it was argued by Mr Ngalwana that s42 no longer renders a consideration of regional demographic peremptory for testing compliance with the EEA.
 There are at least two responses to this submission which we consider to be relevant. In the first place, the Amendment Act only came into force in August 2014 long after the plan was implemented, the matter was heard before the court a quo or judgment was delivered on 18 October 2013. Hence at the time the plan was implemented, respondents had an obligation to take account of regional demographics. Secondly, even though the word "must" has been replaced by "'may", there will be factual contexts in which it is difficult to envisage how a plan could pass legal muster without a consideration of regional demographics. Within the Western Cape, where some 50% of the economically active population come from the "Coloured" group, an application of the present plan would result in significant discrimination in that the plan only envisages that 8.8% of the workforce should come from the Coloured population. Similarly, in a province where more than 79.3% of the population are African, this could result in a similar significant reduction in African employees in the province, which plan would again manifestly work to their disadvantage and constitute a clear infringement on dignity to those who were the very target of Apartheid's racist policies.
 In summary, the respondents failed to take account of the particular regional demographics of the Western Cape which was a mandatory requirement at the time that the plan was conceived. The failure to do so could result in a large scale reduction in the workforce of members of the designated group, who themselves had suffered egregious discrimination as a result of Apartheid. Even if the word "may" is employed in this enquiry, it is our view that, given South African history, the failure to take account of the impact of regional demographics on the nature and purpose of the plan adversely reduces the contribution of restitution towards substantive equality and hence the attempt to achieve the effect goal of developing a non-racial and non-sexist society. This complete failure to examine the region in which the plan is conceived, constitutes a sufficient legal obstacle against the plan being held to be in compliance with the EEA.
 In her judgment, Rabkin-Naicker J referred to s50(2) of the EEA which provides thus:
- 'If the Labour Court decides that an employee has been unfairly discriminated against, the Court may make any appropriate order that is just and equitable in the circumstances, including
- payment of compensation by the employer to that employee;
- payment of damages by the employer to that employee;
- an order directing the employer to take steps to prevent the same unfair discrimination or a similar practice occurring in the future of other employees.'
 Mr Brassey submitted that this approach was unacceptable in that persons whose rights had been violated were entitled to an effective remedy. He submitted further that the individual appellants had suffered unfair discrimination and that such discrimination provided the basis for their non-appointment. The court was in a position to order employment of the individual appellants concerned or, at the very least, to grant compensation in recognition of the adverse effect of the unfair discrimination committed by respondents. Such a remedy would be consistent with s50(2) of the EEA. Mr Brassey further submitted that the court a quo did not explain how it could be appropriate, just and equitable to ignore the plight of these individuals nor was any justification advanced for refusing to grant relief pursuant to a finding of discrimination.
 The finding of this Court is that the plan fails because respondents in the formulation of the plan did not take regional demographics into account in the consideration of who falls within a designated group and thus who should benefit from a restitutionary plan. On this finding there does not appear to be a basis by which second appellant's case can be upheld, he being a White man, in circumstances where his appointment was declined because it resulted in a deviation of the DCS. It was certainly not shown that a consideration of regional demographics would have affected second appellant. Accordingly, there is no case made out as to why he should obtain a remedy. Fourth appellant was not recommended by the interviewing panel for the post. His case therefore, is distinct from those of the remaining appellants. Fifth appellant was appointed to the post of Director Area Coordinator: Corrections, Pollsmoor Management Area from 1 July 2012 and therefore falls outside of the need for an individual remedy.
 The balance of the appellants however were recommended for appointment. The question arises as to the counterfactual: had regional demographics been a mandatory factor to be taken into account by third respondent at the time, would these appellants have been appointed or promoted?
 As indicated, we do not consider that a deviation plan that focusses exclusively on organisational need and the consequent assessment of skills, experience and the ability of an individual applicant to fulfil these defined needs renders such a plan unconstitutional.
 In summary, given the paucity of evidence and the time that has lapsed between the central facts that gave rise to this dispute and this appeal, together with the fact that the appellants did not focus their attention on the deviation decision in sufficient detail, this Court cannot grant a remedy of promotion. For similar reasons compensation for non-promotion is inappropriate. The issue of damages was neither canvassed nor pleaded. In light of the lack of certainty as to what outcome would have resulted had regional demographics been taken into account, it would be inappropriate to award damages.
 We have carefully considered whether further guidance should be given to respondents in the formulation of a plan that takes regional demographics into account. However, we are hesitant to attempt a prescription. Manifestly, recourse to the particular demography of a region should not result in the implementation of a quota. The animating idea behind these considerations should not be to freeze a pattern of regional demography, which is invariably a product of the vicissitudes of generation of racist rule. Hence, in the construction of a non-racial and non-sexist nation, the relationship between regional and national demographics requires nuance and flexibility. It is best left to the respondents to develop an appropriate plan as opposed to a judicial attempt at legislation.
 For these reasons, therefore, the following order is made:
- The appeal is dismissed.
- The cross-appeal is dismissed.
- There is no order as to costs.