IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA€¦ · Department of Correctional Services ("DCS") in...
Transcript of IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA€¦ · Department of Correctional Services ("DCS") in...
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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NUMBER:______________
In the matter between:
SOLIDARITY First applicant
PJ DAVIDS Second applicant
CF FEBRUARY Third applicant
AJ JONKERS Fourth applicant
LJ FORTUIN Fifth applicant
GM BAARTMAN Sixth applicant
DS MERKEUR Seventh applicant
TS ABRAHAMS Eighth applicant
DR JORDAAN Ninth applicant
JJ KOTZE Tenth applicant
DMA WEHR Eleventh applicant
and
DEPARTMENT OF CORRECTIONAL
SERVICES
First respondent
MINISTER OF CORRECTIONAL
SERVICES
Second respondent
NATIONAL COMMISSIONER OF THE
DEPARTMENT OF CORRECTIONAL
SERVICES
Third respondent
MINISTER OF LABOUR Fourth respondent
_______________________________________________________________
APPLICANTS' WRITTEN SUBMISSIONS
_______________________________________________________________
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INTRODUCTION 1
PROCEDURAL HISTORY 3
THE ISSUES 6
THE STANDARD FOR LEAVE IS MET 8
The issues are constitutional issues 8
It is in the interest of justice that the issues be determined 8
RELEVANT FACTS 10
The plan 10
The DCS AA Programme 12
The individual applicants 14
THE LEGISLATIVE FRAMEWORK 17
The EEA 17
Interpretation and application of the EEA within the
broader constitutional and statutory context
21
ANALYSIS OF RELEVANT PROVISIONS 22
The EEA and other legislative instruments providing for
affirmative action seek to achieve more than one
objective
22
Broad representation as an aim 28
The true test is the determination of what is equitable 31
THE PLAN DOES NOT COMPLY WITH THE EEA 32
THE PLAN’S "NUMERICAL GOALS" ARE A SYSTEM
OF QUOTAS
34
"DEVIATION" DOES NOT SAVE THE PLAN 36
THE EFFECT OF BARNARD 39
RELIEF FOR THE INDIVIDUALS 42
COSTS 44
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INTRODUCTION
1. May an employment equity plan ignore regional demographics? Both
Courts below held not. Yet neither would set aside one which (it is common
cause) does just that. Nor would either Court grant individuals prejudiced
by it any individual relief at all (or their costs). Both Courts also would not
hold the plan invalid on other grounds.
2. Ten unsuccessful applicants for appointment to various positions in the
Department of Correctional Services ("DCS") in the Western Cape,
assisted by their trade union ("Solidarity") seek leave now to appeal to this
court. They say both Courts were correct to hold the DCS Employment
Equity Plan 2010-2014 ("the plan") unlawful in its complete disregard for
regional demographics. They challenge the basis for their non-
appointment also on two further grounds: "numerical goals" in the plan are
in fact employment quotas, prohibited by the Employment Equity Act
("EEA"); and in any event their rigid application.
3. Each individual was denied appointment or promotion because that
person’s race (alone or coupled with gender) was considered adverse to
achieving the goal of absolute national demographic representation in
every region and unit and at every level of employment. If race and gender
had not acted as a bar, and if their merit and the needs of DCS had been
taken into account, they would have been appointed.
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4. For the nine applicants who are considered "Coloured", the failure to
appoint them represents the continuation of race-based disadvantage.
Excluded under apartheid from the full benefits of South African
citizenship on the basis of their race, they have, once more, been told that
racial classification operates to exclude them from work or career progress.
Their individual merit and operational efficiency were not considered. Yet
under the EEA they are "black people" (as defined). In five instances they
are also female (and on that ground too designated for redress). The plan
however excludes them as beneficiaries of affirmative action and
restitution for past disadvantage. It subjects them to further discrimination.
This because "Coloureds", who account for about 50% of the economically
active population in the Western Cape, are considered to be "over-
represented" in DCS in that province, upon application of the DCS
standard that "Coloureds" should not exceed their national demographic
representation (8.8%) at any level or in any unit.
5. Mr Davids, the only applicant from the non-designated groups, suffered the
same fate on the basis of the application of the national demographic
statistics. This was in the face of his undisputed merit as a candidate for the
position. Both courts concluded that Mr Davids, being a white male, could
not be granted relief.
6. This is an application for leave to appeal against the order of the LAC of
13 April 2015, dismissing the applicants' appeal to that court.
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PROCEDURAL HISTORY
7. In the Labour Court, Solidarity and the ten individual applicants ("the
individuals") (collectively "the applicants") squarely challenged the
validity of the plan. 1 This on the ground that it made provision for
appointments, transfers or promotions by reference to quotas strictly
reflecting the demographic representation of the races 2 and sexes
throughout South Africa.3 This (the applicants contended) was in conflict
with the EEA, construed against the backdrop of the constitutional
protections against discrimination. Its adoption and application also fell
foul of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA").
8. The individuals gave evidence of their treatment by DCS. DCS led the
evidence of three departmental employees tasked with implementation of
the plan. The applicants presented expert evidence analysing mistakes and
discrepancies in its numerical targets. The expert also explained the general
effects of the application of national demographic data without reference
to regional demographics and the composition of the economically active
population. The respondents' expert supported application of national
demographics as a yardstick for transformation.
9. Rabkin-Naicker J held the plan not to comply with the EEA. In ignoring
regional demographics it unfairly discriminated against persons who, under
1 DCS have adopted a new plan for the period 2015 to 2019. The respondents have asked to introduce
the new plan in evidence on appeal (Statement par 26.6 Record Vol 2 p 158). The applicants have no
objection, because it replicates the same deficiencies as the 2010 - 2014 plan. 2 At least insofar as South Africa’s citizens are deemed capable of being classified as forming part of one
of four identified races. 3 Founding affidavit par 8 - 9 Record Vol 1 pp 8 - 9.
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the EEA, are black employees. But she did not set it aside. Instead she
ordered DCS to take immediate steps to ensure that both national and
regional demographics are taken into account in respect of members of
designated groups when setting equity targets at all occupational levels of
its workforce.4 However, no relief was granted to the individuals,5 and no
costs order was made.6 The Labour Court expressed the view that it was
more appropriate to grant an order that would benefit all black employees
of DCS in future.7 Its order however simultaneously left the unlawful plan
in force, directed it be corrected only in the broad terms sketched, and
imposed no structural means to establish compliance.
10. The applicants sought, and were granted, leave to appeal to the LAC. The
respondents were also granted leave to cross-appeal.
11. The LAC dismissed both the appeal and the cross-appeal. It too found that
the plan 8 "fails because the respondents in the formulation of the plan did
not take regional demographics into account".9 Nonetheless the LAC too
did not set aside the plan. It also did not consider whether the plan
complied with any of the other requirements of s20(2)(c) of the EEA, read
with s42(a).
4 Founding affidavit par 16 Record Vol 1 p 11; Labour Court judgment Order 1 Record Vol 1 p 102 5 Labour Court judgment par 56 Record Vol 1 p 101: "In my judgment the most appropriate relief for the
court to order in these circumstances is one that will benefit all the employees of DCS in the Western
Cape who are black employees of the DCS and members of the coloured community in the future". 6 Labour Court Order 2 Record Vol 1 p 102. 7 Labour Court judgment par 56 Record Vol 1 p 101. 8 Record Vol 3 pp 243 - 265. 9 LAC judgment par 63 Record Vol 1 p 64.
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12. The LAC relied on the notional possibility of deviation from the
employment equity plan, provided for in separate DCS directives,10 to hold
the plan not rigid.11 The personal power of the National Commissioner
exceptionally to authorise appointments exceeding the "targets" for
particular groups prevented it concluding that the plan was
"unconstitutional".12
13. The LAC too granted no individual relief .13 This because the individuals
(the LAC considered) had not made out a case that they would have been
appointed if regional demographics had been taken into account in the DCS
employment equity plan,14 and because a significant time had lapsed.15
14. Following directives from this Court, the respondents did not respond to a
schedule of common cause facts prepared by the applicants on the basis of
facts not denied in pleading, and facts established from documents
produced for trial.16 That triggered a directive for the parties to identify
disputed matter in the judgments of the Labour Court and the LAC. This
was done,17 but the respondents did not serve or file documents identified
to be relevant.18 Their list included documents not contained in the record
10 AA Programme par 2.2 & par 10 (2nd bullet) Record Vol 3 pp 271 & p 280; DCS employment equity
circular par 4.3 Record Vol 3 p 284. 11 LAC judgment par 69 - 70 Record Vol 1 p 67. 12 LAC judgment par 70 Record Vol 1 p 67. 13 LAC judgment par 71 Record Vol 1 p 67. 14 LAC judgment par 69 Record Vol 1 p 67. 15 LAC judgment par 71 Record Vol 1 p 67. 16 Notice record Vol 2 p 160. 17 Applicants' statement Record Vol 2 pp 139 - 146; Respondents' statement Record Vol 2 pp 147 - 158. 18 Respondents' statement par 26 Record Vol 2 pp 157 - 158.
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a quo.19 It also did not indicate what portions of the transcripts of the
evidence were sought to be relied on. The applicants were unable to
include these documents without the assistance of the respondents.
Accordingly the record contains only those documents identified by the
applicants.20
THE ISSUES
15. The core issue is whether the plan complies with the standards of the EEA
and the Constitution.21
16. It is common cause that the plan employs only national demographics to
determine the levels of representativeness - this in all divisions and at all
levels. Both the Labour Court and the LAC found that DCS is not entitled
to ignore regional demographics in setting targets under the EEA,22 but the
respondents dispute these conclusions,23 and submit that s42 "does not
stipulate that designated employers, in setting employment equity targets,
must use national, regional or both demographics".24
17. A first issue, therefore, is determination of the factors appropriately to be
taken into account in the setting of numerical goals contemplated in
s20(2)(c) of the EEA.
19 For example, the DCS employment equity plan for the period 2015 to 2019 - see Respondents'
statement par 26.6 Record Vol 2 p 158. The applicants have no objection to the inclusion of the new
evidence. 20 Applicants' statement par 14 Record Vol 2 p 146. 21 Applicants' statement par 1 Record Vol 2 p 140. 22 Applicants' statement par 3 Record Vol 2 p 140; Respondents' statement par 12 Record Vol 2 p 154. 23 Respondents' statement par 11 - 19 Record Vol 2 pp 153 - 156. 24 Respondents' statement par 18 Record Vol 2 p 156.
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18. Closely associated with that issue is the appropriate distinction to be drawn
in applying the EEA between numerical targets (that provide goals to strive
for, and a vehicle for measuring progress) and quotas that are rigid and
exclusionary.
19. The applicants complain that the plan sets race- and gender-based
thresholds for appointment,25 but the respondents submit that "there is
flexibility in the manner in which the [plan] is applied",26 particularly
because provision is made for deviation. 27 The applicants dispute the
conclusion that the deviations allowed for, applicable in exceptionally
limited circumstances, allow for flexibility sufficient to transform the
employment equity plan quotas to targets, properly so called.28
20. The application also triggers questions of the consequences to flow from a
finding that a plan does not comply with the dictates of the EEA - for the
plan itself, but also for individuals adversely affected by the application of
a plan that is not compliant with the statute. If the plan is invalid (as the
applicants submit it was, and the LAC implicitly found when it held that
the plan "failed"), consideration must be given to:
20.1. the proper incidence of the burden of proof, in light of s11 of the EEA;
and
25 Founding affidavit par 29 Record Vol 1 p 16. 26 Opposing affidavit par 43.5 Record Vol 2 pp 127 - 128. 27 Opposing affidavit par 43.6 Record Vol 2 p 128. 28 Applicants' statement par 10 - 11 Record Vol 2 pp 142 - 144.
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20.2. whether relief must be granted to individuals who have proven unfair
discrimination in the circumstances, and what this should be.
THE STANDARD FOR LEAVE TO APPEAL IS MET
The issues are constitutional issues
21. As the judgment of the LAC points out, the "case involves an enquiry into
the constitutional and legal scope of positive measures designed to achieve
equality through the medium of employment equity plans" in circumstances
where "the law relating to racial quotas and targets and other mechanisms
to achieve representivity in the workplace remains uncertain". 29
Furthermore, as the judgment notes, "the Constitution is central to the
disposition of the dispute",30 with s9 and the elucidation that has been given
in respect of it being "pivotal" in the determination of the matter.31
22. The defines issues raise, particularly, the question of remedies to be granted
where there has been a finding of unfair discrimination.
It is in the interest of justice that the issues be determined
23. The matter raises issues of fundamental importance: the State, in its
capacity as employer, is alleged to have discriminated against a number of
individuals, based on a false understanding of the requirements of the EEA
and the proper characteristics of an employment equity plan that is
29 LAC judgment par 1 Record Vol 1 p 40. 30 LAC judgment par 21 Record Vol 1 p 45. 31 LAC judgment par 21 - 25 Record Vol 1 pp 45 - 48.
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legitimate under that statute and the Constitution. The consequences to be
attached to the State’s conduct must be clarified.
24. The case squarely raises the question of the appropriate differentiation
between a "target" or "goal" legitimately conceived of under the EEA, and
a "quota", which is statutorily prohibited in s15(3) of the EEA. That
distinction was left open in the judgment of this Court in South African
Police Service v Barnard.32 It is desirable that the uncertainty be resolved,
so that designated employers - all employers within South Africa with more
than 50 employees - who are required to promote employment equity,33
employ appropriate measures for the purpose.
25. To ensure that employment equity measures are appropriately devised,
employers also require clarity on the factors appropriately to be taken into
account in setting numerical goals under the EEA. DCS took none of the
s42 factors into account when it devised its employment equity plan, and
the courts below focused only on the failure to consider regional
demographics in the setting of targets.
26. Finally, it is in the interests of justice that this court determines the
appropriate relief to be granted in circumstances where an employment
equity plan fails to comply with the requirements of the EEA, and where,
in consequence, individuals are adversely affected.
32 2014 (6) SA 123 (CC). There the employment equity plan in question had not been subjected to
scrutiny. 33 s1 EEA (definition of designated employer), read with s13 EEA.
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RELEVANT FACTS
The plan
27. Since January 2000 DCS has, through several employment equity plans,
sought to comply with its obligations under the EEA.34
28. The plan in issue records significant progress made in the transformation
of the personnel profile of DCS, including "marked progress in the
employment of females within the department", good progress with "down
management" of whites and slower progress in respect of "our Coloured
colleagues".35 Progress on disability targets and progress at particular
levels within DCS is also described in detail.36
29. As regards perceived shortcomings of previous plans, the plan explains that
recruitment and selection processes "were not always EE Plan driven as
some appointments that were made were not compliant with the EE
targets",37 indicating an intention that the plan is to be strictly applied, with
all appointments to be "driven" by its targets, and to be made consistently
with the set targets.
30. Against this backdrop, the “approved targets” for the relevant period are
provided.38 Although the plan is said to be the product of extensive internal
and external consultation with stakeholders and interested parties,39 the
34 Previous iterations of the plan are not relevant to these proceedings, for their adoption and application
are not relevant to the determination of the legality of the present version of the plan and its effect on the
particular individual applicants. 35 Plan par 6.1 Record Vol 3 p 249 ll 11 - 13. 36 Plan par 9 – 11 Record Vol 3 pp 250 - 253. 37 Plan par 12 first bullet point Record Vol 3 p 253 ll 34 - 35. 38 Plan par 13(a) – 13(c) Record Vol 3 pp 255 - 256. 39 Plan Executive Summary & par 4 - 5 Record Vol 3 p 246 ll 14 - 20 & p 248 ll 1 - 18.
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approved numerical targets, by race, simply reflect the national
demographics as estimated in 2005. Detailed targets and “gap analysis”
according to units and salary levels, 40 are informed by the national
demographic alone,41 with no reference to any factor listed in s42(a) of the
EEA or the Code of Good Practice.
31. The targets are:
31.1. 79,3% African males and females;
31.2. 9,3% White males and females;
31.3. 8,8% Coloured males and females; and
31.4. 2,5% Indian males and females.42
32. In accordance with paragraph 24 of the plan, gender representation targets
are set at 50% for all levels, except levels 3 to 8 where a target of 40%
females and 60% males is set.43
33. The plan requires advertisements to be specific the "target group
required"44 and that recruitment, shortlisting and appointments must be
employment equity driven.45
34. The plan itself is focused on targets alone, and contains no real engagement
with the manner in which targets can reasonably be achieved. That is left
40 Plan par 14 – 20 Record Vol 3 pp 256 - 261. 41 The plan records that it is based on the economically active population (par 13(a) Record Vol 3 p 255),
but Ms Bonani accepted in evidence that this was a mistake, and that the national demographic of the
whole population had been used: see Record Vol 5 p 506 ll 8 - 24 & p 508 l15 - p 509 l 5. 42 Plan par 13(b) Record Vol 3 p 255. 43 Plan par 24 Record Vol 3 p 263. 44 Plan par 24.7 Record Vol 3 p 263 l 22. 45 Plan par 24.6 Record Vol 3 p 263 l 21.
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to the so-called DCS AA Programme, which is said to "form part of" the
plan.46
The DCS AA Programme
35. The DCS AA Programme 47 starts with "acknowledgment" that the
country’s demographics are not reflected in its workforce and that
"inequitable representation of employees from designated groups
[continues] to prevail within the organization".48 The AA Programme is
said to be a "separate tool within the [plan] to assist in fast tracking the
desired achievements for employment equity"49 and its objectives include:
35.1. "mainstreaming of employment equity into all policies, procedures,
practices, systems and budget";50
35.2. to "improve and transform sevice delivery through realization of
demographic changes at all levels";51 and
35.3. to "facilitate robust human resource development".52
36. Certain principles are set out as follows:
36.1. Paragraph 2.2 of the AA Programme records that "[w]hile the
programme targets employees from the designated groups, the
46 Plan par 24.2 Record Vol 3 p 263 l 12. 47 Record Vol 3 pp 266 - 281. 48 Programme first unnumbered paragraph under Introduction Record Vol 3 p 270 ll 3 - 5. 49 AA Programme second unnumbered paragraph under Introduction Record Vol 3 p 270 ll 6 - 8. 50 AA Programme par 1.2 Record Vol 3 p 270 ll 30 - 31. 51 AA Programme par 1.3 Record Vol 3 p 270 l 32. 52 AA Programme par 1.4 Record Vol 3 p 270 l 33.
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department acknowledges the need to accommodate required scarce
skill areas, the need for mentoring and coaching and as such non-
designated employees would not be excluded".53
36.2. Paragraph 2.4 of the document states that "[t]he programme shall
recognize that even among the designated groups, varying levels of
representativity do exist within the organization, e.g. Coloured males
in relation to African males, White females in relation to Coloured
females and African females in general, in-relation to the
representation needs of the organization as per the DCS' Employment
Equity Plan".54
37. The beneficiaries of the AA Programme are identified as women of all
racial groups, persons with disabilities of all races and "Blacks (Africans,
Coloureds and Indians)", but the document goes on to state in paragraph 3
that "[o]ccupational categories and levels where under-representativity
[sic] has been identified in terms of the Departmental Employment Equity
Plan will receive specific focus".55
38. Point 6 in the programme of action, which is to be found in paragraph 6 of
the AA Programme, identifies as a barrier that "Recruitment and Selection
practices do not consider representativity [sic]". In order to rectify this
perceived problem, the programme states, recruitment practices must
53 AA Programme par 2.2 Record Vol 3 p 271 ll 8 - 11. 54 AA Programme par 2.4 Record Vol 3 p 271 ll 15 - 20. 55 AA Programme par 3 Record Vol 3 p 271 ll 28 - 35.
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comply with the plan, specifically by ensuring that "[s]hort listing
processes [are] driven by Employment Equity Targets".56 This result is to
be achieved as follows: "Directorate Equity to be informed in advance of
envisaged advertisements to enable the directorate to provide accurate
targets to relevant areas and responsible persons". In accordance with
point ten of the programme of action, employment equity compliance is
included as part of the "normative performance standard".57
39. Paragraph 10 of the AA Programme provides that the "National
Commissioner has the prerogative to appoint any candidate in accordance
with the departmental Employment Equity Plan and is the only person who
may deviate with valid documented reasons that will stand the test in the
court of law".58 Where there is non-compliance with the employment
equity targets, or "deviation", the AA Programme provides that "concerned
managers will be held accountable and action shall be taken by the
Commissioner".59
The individual applicants
40. The Labour Court concluded that "most of the facts regarding the non-
appointment of the individual applicants were common cause".60 In respect
of Mr Davids the Court specifically recorded that he had been
56 AA Programme point 6 Record Vol 3 pp 276 - 277. 57 AA Programme point 10 Record Vol 3 p 278. 58 AA Programme par 10 second bullet point Record Vol 3 p 280. 59 AA Programme par 10 first bullet point Record Vol 3 p 280. 60 Labour Court judgment par 51 Record Vol 1 p 100.
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recommended as the first and only candidate, but that he had not been
appointed. The Court accepted that his non-appointment was actuated by
the application of the employment equity plan targets.61
41. In the statement filed with this court,62 the respondents raised no challenge
to the factual findings in respect of the individual applicants. The facts
concerning the advertisement of the various posts, the appointment
processes followed and the reasons for the non-appointment of the
individual applicants that informed the court’s reasoning must therefore be
taken to be common cause.
42. The position of the individuals is set out in full in annexure DJG1 to the
founding affidavit in the application for leave to appeal.63
43. With the exception of Mr Jonkers and Ms Fortuin, it is common cause
between the parties that each:
43.1. applied to be appointed or promoted to a position within DCS;
43.2. was shortlisted and interviewed for the position;
43.3. was identified as the "strongly recommended" (or preferred)
candidate to be appointed to the position; and
43.4. was not appointed to the position in respect of which that person had
been strongly recommended because he or she formed part of a race
and/or gender group deemed to be "over-represented" at a particular
61 Labour Court judgment par 49.10 Record Vol 1 p 99.
62 Respondents' statement Record Vol 2 pp 150 - 158. 63 Founding affidavit par 14 Record Vol 1 p 10, read with annexure DJG1 pp 20 - 38B.
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level within DCS when regard was had to the numerical targets
(national demographic representation) contained in the plan.
44. Furthermore, in respect of these eight applicants:
44.1. The position for which Ms Abrahams had been recommended, was
abolished before further steps could be taken, but for each of the other
others, motivation to deviate from the plan was provided.
44.2. None of the deviation requests were successful,64 and in the case of
Ms Merkeur the post was temporarily "abolished", so that no decision
on deviation was made by the National Commissioner.
44.3. In certain instances the memoranda on deviation from the plan quotas
were not placed before the Commissioner for a decision, since lower-
ranked officials determined that these were not "matters for
deviation".
45. In the case of Ms Fortuin, there was little factual dispute: the parties agreed
that she had been recommended for appointment to the position of Director:
Area Co-ordinator: Pollsmoor Management Area after making application
in August 2010 and that she was appointed to that position on 1 July 2012,
some two years later and after conciliation had failed and pleadings in this
litigation had closed (with DCS pleading that equity considerations had
prevented her promotion). What was never satisfactorily explained, was
64 Record Vol 4 pp 302 - 306 (Mr Davids)
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the reason for not appointing Ms Fortuin shortly after the interviews, which
were held in January 2011.
46. Mr Jonkers' case different from the others: he had applied for four positions,
and, after interviews, he was informed that he had not been recommended
for appointment to any of the positions he had applied for. Ms Fortuin65
explained that Mr Jonkers obtained the highest score in respect of two of
the positions for which he had applied. 66 However, because he is a
Coloured male, others were recommended: documentation produced by the
respondents shows that Mr Jonkers was not recommended for the post of
SAO: Human Resources Development: Pollsmoor Management Area:
Western Cape Region "due to equity".67
THE LEGISLATIVE FRAMEWORK
The EEA
47. The preamble of the EEA recognises that, as a result of apartheid and other
discriminatory laws and practices, there are disparities in the national
labour market and that such disparities create such pronounced
disadvantages that they cannot be redressed simply by repealing
discriminatory laws. The EEA is concerned with, inter alia, the
65 A member of the shortlisting and interviewing panel charged with recommending candidates for
appointment to the positions for which Mr Jonkers had applied. 66 Record Vol 4 p 359 ll 16 - 23. 67 Record Vol 4 p 366 ll 18 - 20.
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elimination of discrimination in the workforce, and achieving a diverse
workforce "broadly representative" of the South African people.
48. The purpose of the EEA as set out in s2 is "to achieve equity in the
workplace" by "promoting equal opportunity and fair treatment in
employment through the elimination of unfair discrimination" 68 and
"implementing affirmative action measures to redress the disadvantages in
employment experienced by designated groups in order to ensure their
equitable representation in all occupational categories and levels in the
workforce".69 These designated groups, under the EEA, comprise "black
people, women and people with disabilities". 70 Black people is a "generic
term which means Africans, Coloureds and Indians".71
49. The EEA requires designated employers to implement measures to "ensure
equitable representation of suitably qualified people from designated
groups in all occupational levels in the workforce".72 These measures may
"include preferential treatment and numerical goals, but exclude quotas".73
50. The employer must "prepare and implement" an employment equity plan
that "will achieve reasonable progress towards employment equity in that
employer's workforce". 74 The plan must be based on analysis of the
68 s2(a) EEA. 69 s2(b) EEA. 70 s1 EEA. 71 s1EEA. 72 s15(2)(d)(i)EEA. 73 s15(3)EEA. 74 s20(1)EEA.
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workforce,75 and the employer must record strategies to be adopted in the
pursuit of achieving numerical goals for equitable representation.76
51. A footnote to s20(2)(c) explains that "the factors listed in section 42(a)
(Assessment of compliance) are relevant in setting numerical goals in each
organisation)". Section 42(a) lists:
51.1. the demographic profile of the national and regional economically
active population;
51.2. pool of suitably qualified people from designated groups from which
the employer may reasonably be expected to promote or appoint
employees
51.3. economic and financial factors relevant to the sector in which the
employer operates
51.4. present and anticipated economic and financial circumstances of the
employer
51.5. the number of present and planned vacancies that exist in the various
categories and levels, and the employer's labour turnover.
52. Also of relevance are the factors contained in the Code of Good Practice
Preparation, Implementation and Monitoring of Employment Equity Plans
("Code of Good Practice"): 77 clause 8.4.2 of the Code of Good Practice
provides that, in developing the numerical goals, the following factors
should be taken into consideration:
75 s20(2)(c)EEA. 76 s20(2)(c)EEA. 77 Code of Good Practice: Preparation, Implementation and Monitoring of Employment Equity Plans,
Government Notice R 1394 of 23 November 1999, issued in terms of s 54 of the EEA.
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52.1. the degree of under-representation of employees from designated
groups in each occupational category and level in the employer’s
workforce;
52.2. present and planned vacancies;
52.3. the provincial and national economically active population as
presented in form EEA 8;
52.4. the pool of suitably qualified persons from designated groups, from
which the employer may be reasonably expected to draw for
recruitment purposes;
52.5. present and anticipated economic and financial factors relevant to the
industry in which the employer operates;
52.6. economic and financial circumstances of the employer;
52.7. the anticipated growth or reduction in the employer’s workforce
during the time period for the goals;
52.8. the expected turnover of employees in the employer’s workforce
during the time period for the goals;
52.9. labour turnover trends and underlying reasons, specifically for
employees from designated groups.
53. Section 42 of the EEA provides that, in determining whether a designated
employer is implementing employment equity in compliance with the EEA,
the Director-General of Labour or other persons applying the statute may
take into account the extent to which suitably qualified people from the
designated groups are equitably represented within each occupational
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category and level in that employer’s workforce in relation to the factors
listed above. 78
Interpretation and application of the EEA within the broader constitutional and
statutory context
54. The EEA stands centrally as a yardstick by reference to which affirmative
action programmes must be measured, but it does not stand in isolation:
54.1. The EEA must be read, interpreted and applied congruent with the
Constitution as supreme law of the Republic.79
54.2. Where the EEA is applied to implement affirmative action in the
Public Service,80 regard must be had to:
54.2.1. the relevant provisions of the Constitution regarding the Public
Service and Public Administration;81 and
54.2.2. provisions of the Public Service Act, 1995 ("Public Service
Act") regarding the management of human resources and the
implementation of affirmative action programmes; and
54.2.3. the Correctional Services Act 111 of 1998 ("the Correctional
Services Act").
78 At the time DCS adopted its plan for 2010 to 2014, "may" read "must". The amendment, which came
into effect on 1 August 2014, does not alter the requirement under s20(2)(c) to take the listed matters
into account in setting targets. 79 s2Constitution. See also s3(a) EEA. 80 DCS is an organ of state established in terms of s7(2) of the Public Service Act. It forms part of the
public service, as established by s197 of the Constitution. 81 s195 & s197 Constitution.
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ANALYSIS OF RELEVANT PROVISIONS
The EEA and other legislative instruments providing for affirmative action seek
to achieve more than one objective
55. The proposition that the EEA must be viewed as a statute concerned with - indeed
solely concerned with - the aim of demographic representation82 is wrong. It is an
altogether too simplistic view of its contents.
56. The preamble to the EEA provides a sense of the statute as a constitutional
instrument under s9(2) of the Constitution: a measure properly adopted as a
means to protect or advance persons unfairly discriminated against that echoes
the language of the Constitution. Accordingly, the EEA, whilst setting out to
"redress the effects of discrimination", provides that this aim is coupled with an
intention to "eliminate unfair discrimination in employment" and to "promote
economic development and efficiency in the workforce".83 In the light of this, the
interpreter can be left in no doubt that the legislature, through this statute, seeks
to balance considerations of fairness in employment practices, efficiency and the
need for redress.
57. The balancing requirement is also evident from the substantive provisions:
57.1. The EEA commences with an outright prohibition on unfair
discrimination,84 but also provides for affirmative action measures
that are consistent with its equal opportunity, fair treatment and the
82 Opposing affidavit par 43.2 Record Vol 2 p 127; Respondents' statement par 23 Record Vol 2 p 157. 83 Preamble EEA. 84 s6(1)EEA.
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achievement of equitable representation of designated groups in the
workforce.85
57.2. Expressly discountenancing the notion that these objects are to be
attained by the mechanical use of race and gender demographics,86
s20(2)(c) emphasises that equitable representation must include an
assessment of the availability of "suitably qualified" people from
designated groups87 for appointment at particular levels and within
particular categories in an organisation.
57.3. This conclusion is consistent with the meaning assigned to
‘affirmative action measures’ in s15(1) of the EEA:
"Affirmative action measures are measures designed to ensure that
suitably qualified people from designated groups have equal
employment opportunities and are equitably represented in all
occupational categories and levels in the workforce of a designated
employer."88
57.4. In the same vein, s15(2) provides for progress in representivity to be
made through various strategies, such as the identification and
elimination of employment barriers which adversely affect persons
from designated groups, and "making reasonable accommodation for
people from designated groups".89
85 s6(2)EEA. 86 The footnote to the term "numerical goals" in s20(2)(c) provides that the factors set out in s42(a) are
relevant to the determination of numerical goals. 87 s20(2)(c) EEA. 88 Emphasis supplied. 89 Emphasis supplied.
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57.5. Equally telling is s15(3), which expressly states that provision for
preferential treatment of designated groups and the setting of targets
may not amount to quotas. 90 Likewise, s15(4) provides that the
provisions on affirmative action are not to be construed as placing an
obligation on an employer to place an absolute barrier to the
prospective or continued employment or advancement of people who
are not from designated groups.91
57.6. The theme of a nuanced approach and the balancing of interests in the
setting of numerical goals is echoed throughout the EEA, in particular
in s42. In describing the mode of assessing compliance with the
requirements of the EEA, s42 requires that a number of factors be
taken into account: the demographic profile of the national and
regional economically active population may be taken into account;
but so may the pool of suitably qualified people from designated
groups from which the employer may reasonably be expected to
promote or appoint employees, the number of present and planned
vacancies that exist in the various categories and levels, the
employer’s labour turnover and economic and financial factors are
recognised to be of equal relevance. Among other relevant factors are
whether the employer has made "reasonable efforts" to implement its
employment equity plan and the extent to which the employer has
90 s15(3)EEA. 91 s15(4)EEA.
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made progress in eliminating employment barriers that adversely
affect people from designated groups. The factors must inform the
numerical goals that an employer sets itself. 92
58. The notion that there should be a balancing of potentially competing
interests is consistent with the position under the Constitution, particularly
insofar as it relates to affirmative action in the Public Service and Public
Administration:
58.1. Section 195(1) of the Constitution sets out the principles that must
govern the public adminstration.
58.2. The principle that public administration must be "broadly
representative of the South African people"93 is but a sub-set of one
of the nine principles enunciated. Within s195(1)(i), the need to
"redress the imbalances of the past to achieve broad representation"
is coupled with, and therefore subject to balancing against the motion
that "employment and personnel management practices" ought to be
"based on ability, objectivity [and] fairness".94
58.3. In addition to the internal balancing required for the proper
understanding and implementation of the principle enshrined in
92 Footnote 3 to s20(2)(c), read with s42(a). 93 s195(1)(i) Constitution. 94 s195(1)(i) Constitution.
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s195(1)(i), there is the need to take into account, and balance against
the aim of broad representivity, at least the following:
58.3.1. public administration "must be governed by the democratic
values and principles enshrined in the Constitution",95 which
must include human dignity, equality, the advancement of
human rights, non-racialism and non-sexism,96 as well as the
right to just administrative action;97
58.3.2. the "efficient, economic and effective use of resources must be
promoted",98 and where the resources available to a state organ
are human resources in the form of persons with particular skills,
training or other attributes, such resources must accordingly be
properly deployed;
58.3.3. indeed, as s195(1)(h) makes plain, "good human-resource
management and career-development practices, to maximise
human potential, must be cultivated"; and therefore
58.3.4. it is improper to refuse to appoint or promote applicants purely
based on imperatives contained in an employment equity plan
95 s195(1) Constitution. 96 s1 Constitution, read with s3(2), s9, s10. 97 s33 Constitution. 98 s195(1)(b)Constitution.
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to promote represvity, and to overlook constitutional
imperatives such as efficiency.99
59. The need for striking a balance is evident also from other legislative
instruments referred to:
59.1. The Public Service Act provides that a number of issues need to be
taken into account when decision on employment in the Public
Service are made:
59.1.1. appointments must be made in accordance with that statute;100
59.1.2. in making appointments, considerations of equality, but also
democratic principles and values (which of course must include
non-racialism and respect for human dignity) must be taken into
account;101
59.1.3. all persons who applied for appointment and who qualify for
that appointment must be considered,102 without regard being
had to demographic or other considerations;
59.1.4. in evaluating who to appoint, a balance must be struck between
considerations of training, skills, competence, knowledge and
affirmative action to achieve broad representation;103 and
99 Coetzer v Minister of Safety and Security [2003] 2 BLLR 173 (LC) par [40]. 100 s9 Public Service Act. 101 s11(1) Public Service Act. 102 s11(2)(a) Public Service Act. 103 s11(2)(b) Public Service Act.
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59.1.5. any person appointed must be fit and proper 104 having due
regard to the requirements.
59.2. The Correctional Services Act calls for an assessment of persons
"based on level of training, relevant skills, competence and the need
to redress the imbalances of the past"105 without giving primacy to
any of these considerations, in much the same way as the Public
Service Act declines to elevate considerations of demographic
representivity over other relevant considerations. Furthermore, the
National Commissioner, in personnel placement decisions, must
promote the principles in s195(1) of the Constitution,106 which call
for a balancing exercise to be conducted.
60. Thus the common requirement running through the EEA and the other
relevant legislative instruments is the requirement of fairness and
reasonableness in the adoption and application of affirmative action
measures. A mechanical adoption of national demographic statistics to
determine the appropriate levels of representation within the workforce is
inconsistent with that.
104 s10(b) Public Service Act. 105 s96(3)(c) Correctional Services Act. 106 s96(3)(d) Correctional Services Act.
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Broad representation as an aim
61. Insofar as as the EEA does provide for demographic representivity as an
outcome, it confines its aim expressly to "broad" representation, for it sets
out to "achieve a workforce broadly representative of our people".107
62. That aim, which is consistent with the goal of broad representation in the
Public Service as found in s195 of the Constitution, the Public Service
Act108 and the Correctional Services Act.109
63. The intention to avoid absolute demographic representation is explicable:
63.1. The EEA recognises, correctly, that racial classification is not to be
tolerated in a non-racial society such as the one envisaged in the
Constitution. The indignity associated with subjecting people to a
process of "precise" race classification that would be necessary to
implement a system of absolute demographic representivity is not one
that can be tolerated. 110
63.2. Furthermore, the EEA, in light of the language of s9(2) of the
Constitution, cannot go beyond the protection and advancement of
persons or categories of persons disadvantaged by unfair
discrimination. If the EEA were interpreted to promote absolute
demographic representation at all levels in the workforce, it would
107 Preamble EEA. 108 s11(2)(b) Public Service Act. 109 s96(3)(c) Correctional Services Act. 110 See Gebhardt v Education Labour Relations Council and others [2013] 1 BLLR 28 (LC) par [23].
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have to be read as giving protection to or securing advancement for,
by way of example, white males, not because they have been unfairly
discriminated against in the past, but because they are "under-
represented" at certain levels of the workforce. Under such a system,
members from the designated groups may be overlooked for
appointment in favour of white males, so that demographic
representation may be attained.
63.3. In reality, it may also not even be possible to achieve absolute
demographic representivity at every level and in every unit of every
employer, simply because there is not a sufficient pool of suitably
qualified people from each of the groups considered to be "under-
represented".
63.4. In any event, the determination of the units within which absolute
demographic representation ought to be achieved is not capable of
clear definition. Put differently, why should a salary band be used as
a basis for evaluation of representation instead of, for example, a
consideration of persons in similar positions, but who may not
necessarily fall within the same salary band?
63.5. Efficiency in the Public Service may require different "levels of
representation" depending on practical considerations. This point is
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made in Public Servants’ Association of South Africa v Minister of
Justice:111
"As far as efficiency is concerned… the requirement of representivity is
often linked to the ideal of efficiency. A police service, for example,
could hardly be efficient is its composition is not at all representative of
the population or community that it is supposed to serve."
63.6. Insistence on absolute and strict demographic representation, as
opposed to broad representation, is also susceptible to error, as this
case shows.
The true test is the determination of what is equitable
64. The EEA sets out to achieve an "equitable" outcome. 112 What is
"equitable"? DCS suggests that demographic representation based on the
national demographics as established in the mid-year population estimates
of 2005 constitutes that which is "equitable".113 But that approach is wrong,
for a number of reasons.
64.1. First, "equitable" means that which is "just", what is "reasonable" and
"right", that which possesses the attributes of equity – ie "fairness in
dealing".114 What is "just", "reasonable" and "right" in particular
111 Public Servants’ Association of South Africa v Minister of Justice 1997 (3) SA 925 (T) at 989J–990H.
Emphasis supplied. 112 See, for example, s42(a) EEA. 113 Transcript Vol XII p 1208 ll 16 – 21; Transcript Vol XII p 1243 ll 15 – 16; Transcript Vol XII p 1251
ll 2 – 6; Transcript Vol XII p 1252 ll 4 - 15. 114 Webster’s New International Dictionary of the English Language Second Edition Unabridged with
Reference History Merriam-Webster Springfield 1935 – see definitions of "equitable" and "equity".
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circumstances, cannot be arrived at by the mechanical application of
percentages representing the national demographic.
64.2. What is equitable ("fair") in the circumstances of making
appointments to positions is that persons are evaluated for
appointment by reference to the needs of the employer and the relative
qualities of the applicants, as is required by s195(1), the relevant
provisions of the Public Service Act and the Correctional Services
Act. Targets for employment equity must also take a variety of factors
into account, if they are to be "fair".
64.3. It cannot be "equitable" (or "reasonable") to ignore the realities of
particular regions and areas when making decisions on appointments
and promotions, in pursuit of the creation of racial and gender
representivity that would lead to homogenisation.
65. In any event, if absolute demographic representation were what the
legislature considered to be equitable, it would have legislated for that, very
simply It would not have provided for "equitable" representation. The two
concepts are not synonymous.
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THE PLAN DOES NOT COMPLY WITH THE EEA
66. An employment equity plan must set numerical goals "to achieve equitable
representation of suitably qualified people from the designated groups
within each occupational category and level in the workforce".115
67. The factors listed in s42(a) of the EEA to assess compliance "are relevant
to setting numerical goals in each organisation" - 116 clearly the
requirements for a legitimate plan and the yardstick against which a plan
must be measured for legality must be the same. Of course, that section
requires a consideration of an array of considerations, which "must be
weighed cumulatively".117
68. Furthermore the Code of Good Practice provides for conducting an analysis
of the workforce profile118 and a comparison of that profile with "relevant"
demographic data.119 The Code of Good Practice provides that "in addition
to demographics, both the availability of suitably qualified people from
designated groups in the relevant recruitment area, as well as the internal
skills profile of designated employees, should be taken into account".120
On the question of the "recruitment area", the Code of Good Practice
115 s20(2)(c) EEA. 116 Fn 3 to EEA. 117 Director-General, Department of Labour v Comair Ltd [2009] 11 BLLR 1063 (LC) par [34].
Emphasis supplied 118 Code of Good Practice par 7.3.2 (a). 119 Code of Good Practice par 7.3.2 (b). 120 Code of Good Practice par 7.3.2 (c).
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observes that such areas may vary depending on the level of responsibility
and the degree of specialisation of the occupation.121
69. Nothing in the plan suggests that, in setting the targets, there was any
consideration of the relevant factors (pool of suitably qualified persons,
vacancies and labour turnover, recruitment areas or the like). On its own
version DCS took only national demographics into account.
70. The conclusion that must be drawn is that the plan, in setting the "targets"
that it did, failed to meet the standard set by s20(2)(c), as read with the
other relevant instruments.
71. This was the conclusion reached by both the Labour Court, and the LAC,
at least in respect of the failure to take regional demographics into account
in the setting of appropriate targets for employing personnel in DCS,
particularly in the Western Cape. The failure to comply with the
requirements of the EEA means that the plan was unlawful.
72. Once unlawfulness was established, s172(1)(b) of the Constitution required
that a just and equitable order be made. In principle, as this Court has held
since Ferreira v Levin122 unconstitutionality entails nullity, with "no room
for shying away from it".123
73. DCS adopted an employment equity plan that did not conform with the
requirements of the EEA, because it failed to set numerical targets by
121 Code of Good Practice par 7.3.2 (d). 122 Ferreira v Levin 1996 (1) SA 984 (CC) par 26 - 30. 123 Allpay Consolidated Investment Holdings (Pty) Ltd v CEO of SASSA 2014 (1) SA 604 (CC) par 25.
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reference to all relevant factors that had to be taken into account. On this
basis alone, the plan had to be set aside.124
THE PLAN’S "NUMERICAL GOALS" ARE A SYSTEM OF QUOTAS
74. Even if the failure to take into account the relevant factors under s42 were
not sufficient to justify setting aside of the DCS employment equity plan,
its employment of "quotas", rather than "targets" or "goals", did.
75. The difference between targets and quotas is important:
75.1. Quotas are rigid and exclusionary: they are required to be met,
irrespective of circumstance. Goals, or targets, on the other hand, are
flexible and inclusive: they are programme objectives translated into
numbers, they provide a target to strive for and vehicle for measuring
progress.
75.2. Put differently, goals are based on rational considerations, including
degrees of under-representation, barriers, and attempts to eliminate
them, and the pool of suitably qualified persons available to an
employer, sometimes within a specific region. Quotas, on the other
hand, are a requirement to hire a fixed number of persons during a
given period, or the reservation of vacancies for designated groups.
Not meeting a goal does not result in a penalty, because a number of
factors are considered to determine whether reasonable progress has
124 The plan has been substituted by the plan for the period 2015 - 2019, which was approved on 15 June
2015. The substitution does not affect the conclusion that the relief ought to be granted, because the
2010-2014 plan was used to decline the individuals appointment. In any event, the 2015 - 2019 plan is
no different in content, in that it continues to use national demographics as the yardstick by reference to
which appointment decisions are made.
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been made. 125 Where penalties are imposed for not meeting the
number set, this is indicative of a quota.
76. The plan did not comply with the requirement in the EEA that relevant
factors be taken into account in setting targets. The plan does not include
targets set for particular years or periods, and it is clear from the evidence
that (at least since 2011) candidates not falling within under-represented
groups have not been shortlisted. 126 The plan records that it had been a
failure of previous plans that "some appointments ... made were not
compliant with EE targets",127 and that managers had not been sanctioned
for their failure to comply. 128 Under the plan managers are held
accountable for "any form of non-compliance of deviation" from it, and
action is taken by the National Commissioner.129
77. The characteristics of the plan are consistent with a quota system, rather
than a system of targets. It ought to have been set aside on this separate
basis too.
"DEVIATION" DOES NOT SAVE THE PLAN
78. Paragraph 10 of the DCS AA Programme stipulates that the National
Commissioner has the prerogative to appoint any candidate in accordance
with the plan. Only he may make appointments that would constitute a
125 JL Pretorius, ME Klinck, CG Ngwena Employment Equity Law, August 2013 [10-42], and the
authorities there cited. 126 Record Vol p 488 ll 3 - 14. 127 Plan par 12 first bullet Record Vol 3 p 253. 128 Plan par 12 Record Vol 3 p 254 (first bullet). 129 AA Programme par 10 Record Vol 3 p 280.
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deviation from targets set out in that plan.130 The LAC found, therefore,
that the plan was not being rigidly applied.
79. Deviations are considered in very limited circumstances:
79.1. "scarce skills" is a term defined and applied by DCS, based on its
consideration of what might be considered such a skill (with no clarity
on the positions that may be included in this definition);131
79.2. scarce skills are considered where candidates from the under-
represented group are not available; and
79.3. operational requirements or critical positions central to core business
delivery must be considered.132
80. Mr Davids, an exceptional applicant,133 and identified as the only candidate
to be recommended for appointment,134 did not benefit from the deviation
process. A series of functionaries recommended re-advertisement rather
than deviation. 135
81. Mr February, another outstanding applicant considered to stand out "head
and shoulders",136 and who had acted in the position applied for over the
130 AA Programme par 10 second bullet point Record Vol 3 p 280. 131 Record Vol 5 p 483 l 5 - p 484 l 1 & p 494 ll 18 - 25. The list provided in evidence included doctors,
nurses, pharmacists, psychologists, social workers and artisans. Vagueness appears from the evidence
of Mr Magagula: see Record Vol 5 p 493 l 21 - p 493 l 22. 132 Circular 01 of 2011/12 par 4.3 Record Vol 3 p 284. 133 Deviation par 3.5.4 Record Vol 4 p 304. 134 Deviation par 3.3 Record Vol 4 p 303. 135 Deviation par 9 - 11 Record Vol 4 pp 305 - 306. 136 Common cause facts Record Vol 2 p 176 & p 178.
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course of a significant period,137 was not supported as a candidate worthy
of deviation, because he did not comply with the plan targets.138
82. Mr Wehr, who is an artisan, and therefore a person in possession of skills
considered by DCS to be "scarce", was not appointed, despite an
application for deviation.139 Indeed, the National Commissioner refused
even to consider the deviation request.
83. These facts indicated that demographic representivity is paramount and
deviation will not be considered unless:
83.1. no candidate belonging to an under-represented group can be found
(irrespective of relative qualities of candidates);140 and
83.2. in the opinion of DCS, the candidate from the over-represented group
possesses certain scarce skills; and
83.3. appointment is required to a core position or for pressing operational
reasons.
84. Mr Magagula explained to the court:
"... you can only submit a [deviation] memorandum to the National
Commissioner to request a deviation is amongst the candidates that are
recommended there is no candidate that is in line with the EE plan, but if among
the candidates that are recommended, say candidate 1, candidate 2 and
candidate 3, if amongst them there is a candidate in line with the EE plan, such
137 Common cause facts Record Vol 2 p 174. 138 Deviation Record Vol 3 p 314 . 139 Deviation Record Vol 5 p 462. 140 Record Vol 5 p 496 ll 4 - 19; p 497 l 21 - p 498 l 10.
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a request cannot be regarded as a deviation ... when this reaches the Director
Equity, ... it is sent back with the comments that this is not a deviation, there is
a second candidate that is in line with the EE plan ..."141
85. Clearly these characteristics of the deviation programme do not provide
evidence of a level of flexibility or a nuanced approach that can save the
plan from unlawfulness based on the fact that it uses race-based decision-
making above all else.
86. In truth the deviation system proves the inflexibility. For at least Mr
February and Mr Davids, the reason for refusing the deviation is non-
compliance with the “targets”. Compliance with “targets” thus remains the
deciding factor, and the circle is closed. Posts are kept open or re-advertised
rather than deviation granted from the ostensible "targets".
87. Furthermore, when short-listing is done on the basis of the "targets",
deviation can never be activated. Only candidates that are not from an
"over-represented" group will qualify to be interviewed.142 From 2011, it
has been the practice of DCS to short-list on the basis of targets, and to
exclude from consideration those candidates that do not meet the equity
requirements.143
88. Deviation thus does not redeem the quotas.
141 Record Vol 5 p 473 ll 15 - 21. 142 Record Vol 5 p 471 ll 10 - 13. 143 Record Vol 5 p 488 ll 3 - 14; Circular 1 of 2011/2012 par 4.4 Record Vol 3 p 284.
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THE EFFECT OF BARNARD
89. In SAPS v Solidarity obo Barnard 144 the Court upheld the LAC judgment,
in very different circumstances. The South African Police Service
("SAPS") plan had not been impugned. 145 Moreover the SAPS National
Commissioner had not rigidly applied the targets in that case.146 The matter
is distinguishable in both respects. The judgment however clearly
establishes the need to devise situation-sensitive measures:
89.1. Moseneke ACJ147 stated for the majority that the "quest to achieve
equality must occur within the discipline of our Constitution.
Measures that are directed at remedying past discrimination must be
formulated with due care not to invade unduly the dignity of all
concerned. We must remain vigilant that remedial measures under
the Constitution are to an end in themselves. They are not meant to
be punitive nor retaliatory. Their ultimate goal is to urge us on
towards a more equal and fair society that hopefully is non-racial,
non-sexist and socially inclusive."148 Accordingly, he explained, 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".149
144 South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC). 145 Barnard pars 51 - 52. See also par 83. 146 Barnard par 66. 147 With Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J, Madlanga J and Zondo J concurring. 148 Par 30, footnotes omitted. See too par 32. In making these observations, the court relied on Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC) par 76 and Minister of
Finance v Van Heerden 2004 (6) SA 121 (CC) par 43. 149 Par 31.
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89.2. At paragraphs 41 and 42 the majority judgment continues:
"I pause to underline the requirement that beneficiaries of affirmative
action must be equal to the task at hand. They must be suitably qualified
people in order not to sacrifice efficiency and competence at the altar of
remedial employment. The [EEA] sets itself against the hurtful
insinuation that affirmative action measures are a refuge for the
mediocre or incompetent. Plainly, a core object of equity at the
workplace is to employ and retain people who not only enhance diversity
but who are also competent and effective in delivering goods and
services to the public."
"[Section 15(4) of the EEA] sets the tone for the flexibility and
inclusiveness required to advance employment equity. It makes it quite
clear that a designated employer may not adopt an Employment Equity
Plan or practice that would establish an absolute barrier to the future
of continued employment or promotion of people who are not from
designated groups."
89.3. The majority further spelt out that quotas amount to job reservation,
that they are "properly prohibited" by s15(3) of the EEA, and that the
numerical goals sanctioned under the statute serve as no more than a
"flexible employment guideline to a designated employer". 150 At
paragraph 66 of the judgment, Moseneke DCJ emphasised that
"implementation of a valid plan may amount to job reservation if
applied too rigidly".151
150 Emphasis supplied. This flexible, fact-focussed approach was endorsed by Cameron J, Froneman J
and Majiedt AJ pars 80, 81 and 89. 151 Job reservation may be found if the plan is applied "too rigidly" – therefore, the standard does not
require absolute compliance with the target before the conclusion is reached that a quota is in operation;
accordingly, rigidity that falls short of absolute compliance is still unlawful.
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89.4. The EEA thus "does not sanction affirmative action measures that are
overly rigid" and it "does not countenance employment decisions that
would establish an absolute barrier to the employment or
advancement of those not from designated groups".152 For this reason
"a decision-maker cannot simply apply the numerical targets by
rote".153
89.5. The Court was emphatic: "[w]e must insist that the specific
implementation as well as the general formulation of remedial
measures be fair".154
90. In the light of Barnard, a rigid plan that is, moreover, inflexibly applied,
cannot be upheld. Barnard does not provide justification for the adoption
of national demographics as the standard to be applied in setting
employment equity targets. It is also at pains not to authorise employment
decisions being made without reference to facts and circumstances that are
relevant. It does not authorise the conclusion that a white male can never
complain of unfair discrimination, as was suggested by the courts below.
RELIEF FOR THE INDIVIDUALS
91. It is accordingly submitted that the plan was unlawful; it failed to comply
not only (as both Courts below held, but the respondents still seek to
challenge) with s15(3), but also s20(2)(a) read with s42. These
152 Barnard par 87. 153 Barnard par 96. 154 Barnard par 101.
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irregularities are patently material. It follows that they vitiate. The plan is
invalid – save where a court holding it invalid determines it “just and
equitable” to mediate the nullity.155 (Neither Court below did that; it could
hardly be “just and equitable” to do that as regards the present applicants;
no adequate case has been made out on the papers in that regard by the
respondents.)
92. It must follow that the basis for declining the individuals appointment was
also invalid. That basis was, simply and wholly, their race and gender. In
the absence of a lawful employment equity measure, DCS cannot rely on
s6(2)(a) of the EEA to refute the allegation that the candidates were
unfairly discriminated against. It also cannot rely on Van Heerden, 156
where Moseneke J observed that a restitutionary measure "must be
reasonably capable of attaining the desired outcome" 157 and 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".158
93. Under the heading, "Burden of proof" , s11 of the EEA provides that, where
unfair discrimination is alleged, the employer must establish that the
discrimination is fair. The employer may do so if it can rely on a lawful
employment equity plan. But if it cannot, then it is incumbent on the
employer to show, on a different basis, why the conduct did not constitute
155 In terms of s172 of the Constitution. 156 Minister of Finance v Van Heerden 2004 (6) SA 121 (CC). 157 Van Heerden par [41]. 158 Van Heerden par [41].
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unfair discrimination. DCS did not do so, and therefore the finding must
be (as it was in the Labour Court) that the individuals were unfairly
discriminated against.
94. The individuals become entitled to relief in terms of s50 of the EEA: the
order that is made in their favour must be "just and equitable in the
circumstances" and it may include payment of compensation or damages.
95. The individuals cannot be left without relief, as was the case in the courts
below.
95.1. Writing extracurially, Chief Justice Chaskalson has made the point
that the "purpose of the provisions prohibiting unfair discrimination
is not to punish the discriminator. Rather, it is to provide relief for
the victims of discrimination".159
95.2. This court explained in Gory v Kolver 160 that, "where a litigant
[establishes] that an infringement of an entrenched right has
occurred, he or she should as far as possible be given effective relief
so that the right in question is properly vindicated" – in other words,
the classical maxim ubi ius ibi remedium161 remains valid.
95.3. Ten years before that, this court had already made the position plain
in Fose v Minister of Safety & Security162 when it stated that:
159 A Chaskalson "Dignity as a Constitutional Value: A South African Perspective" 26 Am U Int’l L Rev
1377 (2010 – 2011) at 1391. 160 Gory v Kolver 2007 (4) SA 97 (CC) par 40. 161 Harris v Minister of the Interior 1952 (2) SA 428 (A), Minister of the Interior v Harris 1952 (4) SA
769 (A) at 780 - 781. See also King v Attorneys Fidelity Fund Board of Control [2006] 1 All SA 458
(SCA) par 18. 162 Fose v Minister of Safety & Security 1997 (3) SA 786 (CC) par 69.
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"an appropriate remedy must mean an effective remedy, for without
effective remedies for breach, the values underlying and the right
entrenched in the Constitution cannot properly be upheld or enhanced.
Particularly in a country where so few have the means to enforce their
rights through the courts, it is essential that on those occasions when the
legal process does establish that an infringement of an entrenched right has
occurred, it be effectively vindicated. The courts have a particular
responsibility in this regard and are obliged to forge new tools and shape
new remedies, if needs be, to achieve this goal".
96. In the present case, three of the positions remain vacant. Those employees
may be appointed retrospectively, with the remainder becoming entitled to
compensation or damages. In the alternative, and if the court declines to
make appointments, compensation or damages may be awarded to all of
the individual applicants.
COSTS
97. In the Labour Court, the applicants were substantially successful in their
challenge of the plan: the court agreed with them that the DCS’ personnel
placement decisions could not continued to be made on the basis of the plan
then in place and had to be remedied. Despite this, the court made no costs
order in favour of the successful litigants. In the LAC the outcome was the
same. (There the applicants moreover had to defeat a cross-appeal).
98. The applicants are a trade union, and individuals adversely affected by the
conduct of an organ of state. A state department, in its capacity as
employer, unfairly discriminated against certain of its employees and a
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prospective employee. They, with the help of their trade union, were forced
to litigate against the state department to protect their rights.
99. It is submitted that, if this court agrees that the plan failed to comply with
the requirements of the EEA, and that it ought to be set aside in
consequence, costs must be awarded in favour of the applicants, including
the costs in the courts below, including in each instance costs of two
counsel.
JJ GAUNTLETT SC
MJ ENGELBRECHT
Counsel for the applicants
Chambers, Sandton and Cape Town
15 September 2015