IN THE LABOUR APPEAL COURT OF SOUTH AFRICA (HELD AT JOHANNESBURG)

CASE NO.: JA24/10

In the matter between:

SOUTH AFRICAN POLICE SERVICES Appellant

and

SOLIDARITY obo R M BARNARD Respondent

RESPONDENT'S REPLY TO THE SUBMISSIONS OF THE AMICUS CURIAE (POPCRU)

1. POPCRU claimed in its application to intervene as amicus curiae that its submissions do not regurgitate those already made by the parties, and that its intervention will be useful to the Honourable Court when it determines the matter.

2. This response should not be construed as a concession to either point. On the contrary, the Respondent contends that POPCRU's submissions amount to no more than a verbose elaboration of the Appellant's point that overlooking Barnard was fair because her promotion would not have "enhanced employment equity".

3. POPCRU points out, correctly, that this case does not "concern a philosophical debate about the virtues or vices of affirmative action in the workplace". But the union then proceeds to approach the matter from exactly that perspective-by effectively arguing that, once it is proved that an employer was seeking to implement affirmative action, any particular instance of its implementation must be deemed a "virtue" and, hence, indemnified against judicial interference. This is no different from the stance taken by the Appellant from inception.

4. All POPCRU submits, in essence, is that:

4.1 Barnard was not appointed to the position in question because the SA Police Service ("SAPS") had an equity plan in place which required certain demographic targets to be reached, and that her appointment would not have promoted the attainment of that target;

4.2 because affirmative action is sanctioned by the Constitution, as read with the EEA, the court a quo could not find that Barnard was the victim of unfair discrimination. This is precisely what the Appellant has argued throughout, and still argues.

5. It is submitted that POPCRU errs fundamentally by seeking to raise an affirmative action plan to the status of an absolute defence applicable in all instances of its application, however indefensible, irrational, aberrant or unfair the consequences for the affected employee may be in a particular instance (and in this instance also for thousands of other SAPS employees, the general public and, indeed for the employer itself).

6. The underlying premise of POPCRU'S approach is that an employer is entitled (indeed bound) to set fixed demographic "targets" and, until these are reached, to refrain from appointing/promoting members of "over represented" groups even if members of "under represented" groups cannot be found. The secondary and ancillary premise is that these targets may/must be set according to the demographic makeup of the population as a whole, to the finest decimal point.

7. From these false premises POPCRU draws the fallacious conclusion that employers are entitled to entirely overlook members of "over represented" (read surplus) groups until the targets are reached, even if those targets prove unattainable for the moment and for the foreseeable future.

8. POPCRU correctly points out that Barnard fell victim to a plan aimed at aligning the SAPS workforce at all levels and occupational categories with national demographics by the end of 2006. She was denied promotion on this basis in the 2005/6 promotion cycles.

9. POPCRU does not mention that when the matter came to trial, those targets had still not been reached. It is common knowledge that they have still not been reached. On POPCU's logic, no officer outside the "under represented" groups may ever be promoted/appointed to any vacant post until the demographic profile of the SAPS workforce exactly matches that of the nation as a whole, in spite of having been allowed to apply, having been interviewed, and having been recommended.

10. So dogmatic an approach to affirmative action accords neither with the Constitutional mandate for affirmative action "measures", nor with the letter or spirit of the EEA, which speaks repeatedly of "equitable" representation of suitably qualified persons. Nor does it accord with the SAPS equity plan itself, which sets "ideal" targets.

11. As the Respondent has made clear from the outset, the SAPS's right to implement its affirmative action plan is not at issue in this case. All that has been placed in question is the fairness and rationality of its implementation in the case of Capt Barnard.

12. The Respondent's central submission was and remains that Capt Barnard was unfairly discriminated against because she was not promoted to a post for which she was eminently qualified, even though. for reasons known only to itself, the SAPS promoted nobody to the post. As Capt Barnard said herself, she would not have complained had a member of an "under represented" group been appointed.

13. POPCRU acknowledges that it cannot understand why SAPS did not seize the opportunity to correct the imbalance by appointing a black officer to the post, when two were considered suitable. This is understandable. The SAPS provided no explanation. So the best POPCRU can do is to advance the startling proposition that "the fact that neither of the African males, along with Captain Barnard, was promoted proves rather than brings into question the reasonableness of this promotion process and what it seeks to achieve".

14. POPCRU is also conveniently ignores the onus that rests on the employer to prove that a particular act of discrimination was fair. The union fails to deal at all with the Court a quo's observations on procedural fairness. In this case, it was for SAPS to justify its conduct, not for POPCRU. 2 SAPS failed lamentably in its attempt to prove that overlooking Capt Barnard twice for appointment to vacant posts when nobody was appointed was either fair or rational. This is why POPCRU now seeks to attack the judgment a quo at the broadest level of generality-namely, the principles which the judge said informed his findings.

15. POPCRU contends, firstly, that the court a quo erred by holding that the need for equitable representation must be "weighed up" against the individual's right to equality.

16. The short answer to this submission is provided by this Honourable Court's judgment in University of South Africa v Reynardt [2010] 12 BLLR 1272 (LAC):

"Equality is the foundational principle but remedial measures are needed for its achievement". It follows that POPCRU's statement3 that "it is the general right to equality that must be weighed against equitable representation in the workforce, not the reverse" is not only wrong; it is also meaningless.

17. POPCRU also errs by stating that the SAPS plan is "the embodiment of that weighing up exercise". While the plan may be a measure to achieve equality, it "embodies" nothing more than demographic targets. It is absurd to suggest that the plan has "already ‘weighed up' the equality rights of affected individuals". The plan has done no more than set ideal targets. It says nothing about the residual rights of members of over-represented groups where those targets cannot be reached in particular promotional phases.

18.The absurdity of POPCRU's contention is compounded by the further observation that the plan cannot be "weighed up against the equality right" because to do so would be "a gratuitous exercise that defeats the entire constitutional commitment to achieving equality". Not only is this a gross overstatement. It takes PQPCRU into the very realms of "philosophical" (or ideological) debate it has eschewed.

19. As PQPCRU itself says, this case is not about the merits or demerits of affirmative action per Se. It is about its application in Capt Barnard's case. All POPCRU appears to be saying is that the SAPS plan is a sacred shibboleth, and that it accordingly renders irrelevant all considerations of fairness to "over represented" individuals.

20. POPCRU reveals its hand with the further observation that employment equity "will inevitably affect some members of society adversely, especially those coming from previously advantaged communities, namely, white men and women". The Respondent does not claim that it will not. It merely asserts, as the court a quo appreciated, that "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".

21. POPCRU's reliance on Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & others 2004 (4) SA 499 (CC) is misplaced. Bato Star simply makes the obvious point that in the process of social transformation the right to equality of previously advantaged groups may sometimes has to give way. Bato Star does not say that the right to equality of members of previously advantaged groups must be suspended until the society is transformed. Bato Star also says that transformation must be carried out in accordance with the Constitution and the law.7

It is also apposite to note that Bato Star concerned a dispute over the allocation of fishing quotas. The issue was whether the Minister had applied his mind to the requirements of the Marine Living Resources Act 18 of 1998 and applicable regulations when reserving a certain percentage of the quota for "new entrants" to the fishing industry. The comments of Ngcobo J (as he then was) were a preface to an inquiry into whether the Minister had laid too much emphasis on transformation, and too little on other considerations mentioned in the regulatory framework. In this case, the National Commissioner did not have regard to a range of considerations in making his decision not to appoint Capt Barnard. He had regard to only one consideration, namely, the demographic targets of the equity plan. Bato Star would have been comparable to the present case only if the Minister had declined to grant fishing rights to the complainant company and also declined to grant quotas to any new entrant.

22. POPCRU is understandably also silent on the requirement of fairness in the application of employment equity. Its position is simply that anything done to an "over represented" employee must necessarily be fair if it is done in the name of a demographic goal.

23. This is incorrect. As the Constitutional Court has said, an affirmative action measure "should not constitute an abuse of power or impose such substantial and undue hardship on those excluded from its benefits that our long term constitutional goal [namely, ‘a non racial, non sexist society in which each person will be recognised and treated as a human being of equal worth and dignity'] would be threatened".

24. POPCRU's conception of affirmative action shows no understanding of the delicate balance that must be stuck in evaluating particular affirmative action measures against that long-term constitutional goal. The union's approach elevates demographic based affirmative action to an end that justifies any means.

25. This is why the court a quo observed that "it is not appropriate to apply, without more, the numerical goals set out in an employment equity plan".9 Were that to be the case, affirmative action would become the embodiment of the systematic racial discrimination which the Constitution was designed to prevent.

26. The potentially destwctive approach espoused by POPCRU (as well as by the Appellant) is exemplified in Capt Barnard's case. She (and all other white SAPS officers (male and female) are effectively being told that they must remain indefinitely in their present positions and ranks until "suitable" black officers (male or female) fill vacancies above them, however long that may take.

27. Such a stance is not only cynical*; it is also a direct violation of the rights to dignity and equality of members of "over-represented" groups, however attenuated those rights may have become by legally sanctioned remedial measures.

[* For three reasons: (i) that they are permitted to apply for non-designated posts; (ii) that, like Capt Barnard, they may simply be required to perform the work of the higher post if it is not filled; (iii) that it makes a farce of the grievance procedure.]

28. POPCRU's attempt to attack the Court a quo's statement that employment equity measures are "limited by law" suffers from the same inherent flaws as those highlighted above, but stands refuted merely by stating the opposite. If the proposition espoused by the Court a quo were incorrect, it must follow that employment equity measures are not limited by law. That proposition clearly falls to be rejected.

29. In any event, POPCRU entirely misconstrues the point made by the Court a quo. The learned Judge did not state that employment equity "is not law". But had he done so, he would have been correct. What the Court a quo clearly had in mind was that an employment equity measure is lawful only if legally sanctioned. And what it stated was that an affirmative action measure will be legally sanctioned only if it is implemented with due regard to affected individuals' right to equality and dignity. The learned Judge was merely confirming the Constitutional Court's oft-repeated view: that affirmative action is subject to the rule of law.

30. There is no inversion in this approach of two constitutional principles, as POPCRU avers. Affirmative action is not a "constitutional principle"; it is merely a means of pursuing the constitutional principle of equality.

31 .Affirmative action cannot therefore supersede the right to equality. Affirmative action is a means to an end. And just as ends cannot themselves axiomatically justify any means, so particular affirmative action measures must be assessed in terms of the degree to which they rationally serve the end of attaining the goal of substantive (as opposed to ideological) equality. If particular measures do not serve those ends, they are unfairly discriminatory and unlawful.

32. In attacking the third general principle stated by the court a quo-namely, that employers should give a cogent explanation for not appointing a suitable candidate from an "over represented" group where suitable candidates from "under-represented groups cannot be found-POPCRU resorts to an even more startlingly argument. This is that the "explanation" is provided by the equity plan itself.

33. Here, POPCRU's argument surpasses mere circularity. The union's point is apparently that not appointing Barnard was fair because the decision was made in terms of a fair plan. Once again, POPCRU misconstrues the plan and the law.

The law state does not require employers to set demographic targets and not to make appointments even if those targets cannot be reached. Nor does the law sanction such irrationality.

34. The SAPS equity plan simply postulates an ideal demographic goal. The question raised in this case is what happens if the goal proves unattainable in the interim. The plan does not state that, if suitable candidates from "under-represented" groups cannot be found to fill a particular position, the post must not be filled. Indeed, by allowing members of "over represented" groups to apply for "non- designated" posts, SAPS itself clearly does not understand the plan that way.

35. Capt Barnard's case obviously calls for a "clear and satisfactory explanation" for why she was overlooked twice in the 2005/6 promotional phase. The only explanation the SAPS could provide was that her appointment would not "advance equity", an answer postulated on the same point as that which POPCRU now seeks to advance, albeit in different terms. The Court a quo was justifiably unimpressed with this tautological "explanation". Paragraphs 32 to 34 of the judgment a quo speak for themselves in that regard.

36. By contesting the fifth principle stated by the court a quo-that there must be a rational connection between an employment equity plan and the measures taken to implement it-POPCRU seeks to fly in the face of settled law.

37. Apart from being wrong in law, POPCRU seeks to suggest that the correct question is whether the plan is "rationally connected" with the goal it seeks to achieve. This brings POPCRU back to the "end justifies means" argument.

38. POPCRU suggests in this vein that "by testing the provisions of the plan against the means used to implement it the Court a quo seeks impermissibly to question the very philosophical basis of affirmative action or employment equity". Precisely what this "philosophical basis is, POPCRU does not say. But as it stands, this statement totally misrepresents the judgment a quo.

39.At no stage did the Court a quo question the legitimacy of affirmative action per Se. The learned Judge merely found that there was no rational connection between overlooking Capt Barnard and the goal of advancing persons from previously disadvantaged groups-i.e. between the measure and the plan- because nobody from any such group was appointed to the position in question. Such manifestly irrational action cannot conceivably be deemed part of "the very philosophical basis for affirmative action". Nor is it sanctioned by the SAPS plan.

40. It is impossible to comprehend the logic of POPCRU's further proposition that a "rationality" inquiry would have been relevant only if the Respondent had sought to impugn the validity of the EEA and the SAPS plan. The Respondent's case was simply that the decision not to promote Barnard was sanctioned by neither.

41. It is not surprising that in seeking to pursue this point POPCRU is driven back into tautology. The SAPS plan, it says, "is itself a rational explanation for the preferential treatment of black persons over white women in the pursuit of equality, through equitable representation of designated groups in all occupational categories and levels in the workplace". In other words, any affirmative action measure is fair because affirmative action is fair.

42. By so saying, POPCRU again conveniently overlooks the contents of the plan and the facts. The plan sets "ideal" targets. The facts indicate that those targets were unattainable in the promotional phases in question. Halting promotions of members of "over represented" demographic groups until the ideal target is reached is patently irrational. It is still more irrational when members of "over represented" groups are allowed to apply for promotion, and are overlooked even though suitable "under represented" officers are identified.

43. Significantly, POPCRU does not suggest how overlooking Barnard and not appointing any previously disadvantaged candidate to the post could conceivably advance the goal of "achieving a diverse workforce broadly representative of the South African Community". Nobody can do so.

44. Why POPCRU states that the plan is "not a measure to prefer black persons for the sake only of their blackness" is bemusing. Nobody in this case suggested that it was. It was not Barnard's case that she should have been appointed simply because she was the better candidate. Her complaint was that her skills and experience were wasted because nobody was appointed.

45. POPCRU's attempt to persuade this Honourable Court that the National Commissioner's decision not to promote anybody was rational completes the circularity of its submissions. The fact that the National Commissioner is under no legal obligation to fill promotion positions cannot render his decision not to do so in this case rational. The National Commissioner was obliged to explain why he declined to exercise his authority to fill the post. He did not. This Honourable Court will not, with respect, accept the proposition implicit in POCRU's stance that denying Capt Barnard promotion was fair simply because the National Commissioner decided that she should not promoted.

46. POPCRU's contention that the National Commissioner gave a rational explanation for not appointing either of the two suitable black males is therefore without substance. Save to state that Barnard's appointment would not enhance employment equity, the National Commissioner himself gave no explanation for this omission. The SAPS only witness merely repeated that refrain. This is not an "explanation". Like POPCR's present submissions, it merely begs the question.

47. POPCRU does not seek to "debunk" the fifth principle espoused by the court a quo-that service delivery may be a factor to be considered when assessing the implementation of an affirmative action plan. The union merely contends that there was no evidence to prove that overlooking Capt Barnard had an adverse effect on the functioning of the NES.

48. Again, POPCRU misses the point. It was not for the Respondent to cite instances where service delivery was adversely affected by her non-appointment. It merely had to support a prima facie presumption that it must have been. The SAPS bore the onus of explaining why leaving a post designated "critical" could possibly have enhanced the functioning of the unit. The Appellant failed to do so, because it could not.

49. In conclusion, POPCRU's submissions have "debunked" none of the principles affirmed by the court a quo. On the contrary, they do no more than indicate that one of the two unions that were party to the equity plan takes the same dogmatic view of employment equity as the Appellant has done.

50. It is submitted, with respect, that this Honourable Court will see POPCRU's intervention in that light and order the union to pay the costs incurred thereby.

J G GROGAN

Chambers

GRAHAMSTOWN

11 April2011

LIST OF AUTHORITIES

(In order of citation)

University of South Africa v Reynardt [2010] 12 BLLR 1272 (LAC);

Minister of Finance & another v Van Heerden [2004] 12 BLLR 1181 (CC);

Harksen v Lane NO and others 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC);

Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) SA 1 (CC); 1999 (2) BCLR 139 (CC);

National Coalition for Gay and Lesbian Equality and another v Minister of Justice and others 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC);

Hoffman v SA Airways [2000] 12 BLLR 1365 (CC);

IMATU & another v City of Cape Town [2005) 11 BLLR 1084 (LC);

Du Preez v Minister of Justice & Constitutional Development & others [2006] 8 BLLR 76 (SE);

Gordon v Department of Health, KwaZulu-Natal [2008] 11 BLLR 1023 (SCA).

Transcribed from the PDF. Please check against, and see footnotes in, the original.

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