IN THE LABOUR APPEAL COURT (JOHANNESBURG) CASE NUMBER: J24/2010

POLICE AND PRISONS CIVIL RIGHTS UNION Applicant

Re: Application for admission as Amicus Curiae

In the matter between:

SOUTH AFRICAN POLICE SERVICE Appellant

and

SOLIDARITY on behalf of BARNARD, R M Respondent

POLICE AND PRISONS CIVIL RIGHTS UNION Applicant

Re: Application for admission as Amicus Curiae

In the matter between:

SOUTH AFRICAN POLICE SERVICE Appellant

and

SOLIDARITY on behalf of BARNARD, R M Respondent

POPCRU'S PRINCIPAL SUBMISSIONS AS AMICUS CURIAE

A Introduction

This case does not concern a philosophical debate about the virtues or vices of affirmative action in the workplace. It is not an enquiry into the legal and moral rectitude of that government policy. That debate was put to bed when the Constitution of the Republic of South Africa, 1996, Act 108 of 1996 ("the Constitution") came into effect on 4 February 1997, containing among its provisions section 9(2).

2 This case is rather about the proper approach of implementing affirmative action in the workplace. The Court a quo says the approach adopted by SAPS is ‘too rigid". That finding is rooted in what the Court a quo terms "general principles ". It lists five. Each of them demonstrates, with respect, the Court's lack of appreciation for the basic ideal by which affirmative action in the workplace is informed: the achievement of equality by ensuring equitable representation of designated groups in all occupational categories and levels in the workplace.

3 I intend demonstrating this by

3.1 setting out the legislative and regulatory topography from which affirmative action in the workplace springs, and

3.2 with reference to that topography, debunicing the "general principles" by which the decision of the Court a quo is informed.

4 It is respectfully submitted that once the soft under-belly of these genera] principles has been exposed, the entire edifice of the Court a quo's decision crumbles.

B Legislative and Regulatory Topography

5 By section 9(2) of the Constitution the multi-party Constitutional Assembly (which adopted the final draft of the Constitution) and the Constitutional Court (which certified its provisions as being in compliance with all 34 constitutional principles) acknowledged that equality is an ideal whose achievement must be promoted through "legislative and other measures" if the South African nation is to live by the constitutional values of human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism, non- sexism, the supremacy of the Constitution and the rule of law.2

6 While the Constitution accords everyone equality before the law (which includes the full and equal enjoyment of all rights and freedoms) and the right to equal protection and benefit of the law, it also allows for preferential treatment by law of persons or categories of persons who have been disadvantaged by unfair discrimination of the relatively recent past. That measure finds expression in section 9(2) of the Constitution in these terms:

"To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken."

7 That is the fons er origo of government's affirmative action policy. The legislative measure contemplated in the section is the Employment Equity Act, 55 of 1998 ("the EEA") whose express purpose is  "to achieve equity in the workplace by ... promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and ... implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable rej,resentation in all occupational categories and levels in the workforce."
(emphasis supplied)

8 The respondent ("Captain Barnard") is a member of a "designated group" within the meaning of the EEA: women. SAPS is a "designated employer" and so the provisions of the EEA apply to it.

9 Chapter 3 of the EEA deals with affirmative action, and section 15 in that chapter deals specifically with the "affirmative action measures" contemplated in section 2. It defines them as "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." (emphasis supplied)

10 The section then sets out what must be included in these measures. Among them are measures designed to "ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce.

11 Section 20 then requires each designated employer to prepare and implement an employment equity plan in which it must state, among other things,

11.1 the affirmative action measures to be implemented,

11.2 the employment equity objectives to be achieved each year, and

11.3 where under-representation of people from designated groups has been identified by the analysis, the numerical goals set with a view to achieving the equitable representation of suitably qualified people from designated groups within each occupational category and level in the workforce, the timetable within which this is to be achieved, and the strategies intended to achieve those goals.

12 One of the measures adopted by SAPS with a view to achieving equity in the workplace is the National Instruction 1 of 2004. This is a regulation issued pursuant to the EEA. Its express purpose is to regulate the promotion process (including fast track promotions) within defined career paths of employees up to sakay level 12". Some of its more felicitous provisions for purposes of this case are the following:

12.1 The fact that a promotion candidate obtains the highest rating or marks in comparison to the other candidates, or has been recommended for Record 116 promotion, does not establish any right or legitimate expectation to be promoted.5

12.2 On account of lack of equitable representation that cannot be addressed through normal promotion processes, or on account of the employment equity objectives, the National Commissioner may reserve any vacant post that has been advertised for promotion purposes.6

12.3 The National Commissioner is under no obligation to fill an advertised post.7

12.4 The selection of a candidate for promotion must be based on, among other things, competence, suitability and employment equity considerations in line with the SAPS employment equity plan.8

12.5 The National Commissioner may, in his discretion, either direct that a post be re-advertised or promote a candidate from the preference list other than the recommended candidate.9

13 The advertisement of the level 9 post in the National Evaluation Service ("the NES") invited only those "who qualify to be considered for promotion in terms of the requirements for promotion as contained in National Instruction 1 of 2004". Those requirements, as set out in the National Instruction, include equitable representation and employment equity considerations.

14 Pursuant to section 20, SAPS prepared an employment equity plan." POPCRU participated in its preparation as a stakeholder.'2 Solidarity did not. It was not sufficiently representative of workers.13 But the plan binds all SAPS employees whether they are Solidarity members or not.'4 It was adopted as a bargaining council agreement, the Safety and Security Sectoral Bargaining Council.15

15 The plan set numerical goals for up to five years for the period 1 October 2001 to 31 December 2006.16 For the years in question (2005 and 2006) the goal was that representation at all occupational categories and levels should be "in line with the National Demographics". To that end, numerical goals for level 9 of the NES were that by the end of 2006

15.1 10 African males and 6 African females must be on level 9 of the NES,

15.2 1 white male and 1 white female must be on level 9 of the NES.'8

16 In order to achieve these numerical goals,

16.1 8 level 9 posts were made available for the promotion of African males,

16.2 6 level 9 posts were made available for the promotion of African females,

16.3 No posts wcrc made available for the promotion of white males and females.'

17 Captain Barnard knew this as she served on the "equity forum" of the NES that was tasked with monitoring and evaluating employment equity.

18 I pause here to point out that there is a rational basis for these allocations of promotional posts and it is this: African males were under-represented by as much as 8 according to national demographics analysis. African females were under-represented by as much as 6. On the other hand, white males were over- represented by as much as 6, while white females were over-represented by as much as 52I In the words of the Court a quo, Captain Barnard's promotion to level 9 of the NES in these circumstances would have "aggravated this overrepresentivity (sic) of white males and females and, it follows, the underrepresentivity (sic) of black males and females " at level 9 of the NES.

19 That finding, recognising as it does the legitimate governmental (and constitutional) purpose of achieving equality in the workplace by ensuring equitable representation of designated groups in all occupational categories and levels at SAPS, should have meant the end of Captain Barnard's challenge. Instead, the Court a quo found succour from the harsh realities of constitutional redress in a possibly incidental result of Captain Barnard's promotion to level 9, namely, the ostensible improvement of equitable representation at level 8 when Captain Barnard vacates her captaincy and moves up to superintendent at level

20 This is the high-water mark of the Court a quo's justification for stepping into the National Commissioner's shoes and ordering the promotion of Captain Barnard to level 9 of the NES. It is at best speculative because another white woman could turn up and advance a case similar to that advanced by Captain Barnard and say her promotion to level 8 would improve equitable representation at level 7, and so the absurdity will continue. Quite contrary to the assumption of the Court a quo, there is no guarantee that the vacancy left by Captain Barnard at level 8 will be filled by a candidate from one of the under- represented groups.

21 The other high-water mark of the Court's justification is that where none of the other recommended black candidates (who comprise the under-represented group at that level) have been promoted, it was unfair not to then promote Captain Barnard (who comes from the over-represented group) who is "a member of a designated group and ... and the best candidate for the job. But the Court a quo seems to have missed this basic tenet of the affirmative action policy as articulated in the EEA: being a member of a designated group does not by itself confer an inalienable right to preferential treatment in terms of the EEA.

For example, even though African females are part of a designated group, they would not by reason of that status alone be entitled to promotion from level 2 to level 3 because they are over-represented by 3 at level 3?

22 The plan requires each business unit within SAPS to monitor and evaluate progress in the achievement of equitable representation of designated groups in all categories and levels.26 Captain Barnard served in what she terms the "equity forum" of the NES that performed this task. Because of her role, she says she is ‘fully aware" of the plan and "what it entails Surely, that means she knew that that the post was available only to candidates who would promote equitable representation at level 9 of the NES, as the advertisement itself says?8

C Debunking the Court a quo's General Principles

23 The five general principles by which the Court a quo says its decision is informed are, with respect, far off the mark. These are

23.1 Equitable representation must be weighed up against the right to

23.2 The extent to which the implementation of employment equity plans may discriminate is limited by law.30

23.3 Where a suitable candidate from the under-represented group cannot be found to fill a post, that post should not be denied to a suitable candidate from an over-represented group without a clear and satisfactory explanation.3'

23.4 There must be a rational connection between the provisions of the employment equity plan and the measures adopted to implement it.32

23.5 Service delivery is a relevant factor in the implementation of the employment equity plan.

24 1 deal with each in turn.

(a) The First General Principle: The need for equitable representation must be weighed up against the right to equality

25 With respect, the Court a quo adopted the wrong standard in this regard so much so that in so asserting the Court with respect inverted the applicable constitutional standard. The starting point is that everyone has the right to equal protection and benefit of the law. That is the point of departure. Equitable representation in the workplace is a limitation measure of that right with a view to achieving equality. In other words, equitable representation of designated groups pursuant to the EEA is a measure by which the right to equality is justifiably limited with a view to addressing the effects of unfair discrimination of the recent apaitheid past. One such effect is that white females are over- represented at salary level 9 of the NES within SAPS, while black people are grossly under-represented. It is wrong to suggest in these circumstances that the general right to equality must trump the very constitutional measure by which that general right is justifiably and constitutionally limited. It is the general right to equality that must be weighed up against equitable representation in the workforce, not the reverse. The SAPS plan is an embodiment of that weighing up exercise.

26 The Court a quo's formulation, with respect, conjures up images of the tail wagging the dog. The SAPS employment equity plan which gives effect to the EEA, which in turn gives content to the constitutional redress principle in section 9(2) of the Constitution, has already "weighed up" the equality rights of affected individuals. The SAPS plan is in fact a measure that is intended to
achieve equality in the workplace by ensuring equitable representation. The suggestion that the plan must in turn be weighed up against the equality right (that has already been taken into consideration) is a gratuitous exercise that defeats the entire constitutional commitment to achieving equality and remedying the consequences of past discrimination.

27 The "legislative and other measures" contemplated in section 9(2) of the Constitution as a means for remedying the consequences of past discrimination (such as affirmative action in general and employment equity in particular) will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities, namely, white men and women. That is what has happened in this case and, in this vein, the Constitutional Court has said that "other considerations may have to yield In favour of achieving the [transformational] goal we fashioned for ourselves in the Constitution In other words, the transformational goal trumps the immediate right to equality.

28 Understood in this context, Bato Star is clearly not authority for the proposition advanced by the Court a quo under this general principle. That case in fact fortifies the constiuction of section 9(2) of the Constitution for which POPCRU contends. It is useful to quote in full the relevant excerpts on which the Court a quo relies.

"[72] The Constitution is now the supreme law in our country.... It is therefore the starting point in interpreting any legislation Indeed, every court ‘must promote the spirit, purport and objects of the Bill of Rights' when interpreting any legislation. That is the command of s 39(2). Implicit in this command are two propositions: first, the interpretation that is placed upon a statute must, where possible, be one that would advance at least an identifiable value enshrined in the Bill of Rights; and second the statute must be reasonably capable of such interpretation. This flows from the fact that the Bill of Rights ‘is a cornerstone of [our constitutional] democracy'.... it affirms the democratic values of human dignity, equality and freedom ‘.... But what are these values?

[73] South Africa is a country in transition. It is a transition from a society based on inequality to one based on equality. This transition was introduced by the interim Constitution, which was designed
‘to create a new order.. . [based on equality] in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms'....

This commitment to the transformation of our society was affirmed and reinforced in 1997, when the Constitution came into force. The Preamble to the Constitution ‘recognises the injustices of our past' and makes a commitment to establishing ‘a society based on democratic values, social justice and fundamental human rights'. This society is to be built on the foundation of the values entrenched in the very first provision of the Constitution. These values include human dignity, the achievement of equality and the advancement of human rights andfreedoms....

[74] The achievement of equality is one of the fundamental goals that we have fashioned for ourselves in the Constitution. Our constitutional order is committed to the transformation of our society from a grossly unequal society to one ‘in which there is equality between men and women and people of all races'.... In this fundamental way, our Constitution differs from other Constitutions which assume that all are equal and in so doing simply entrench existing inequalities.... Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated Without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it. This point was made in

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others .... where this Court observed:

7t is insufficient for the Constitution merely to ensure, through its Bill of Rights, that statutory provisions which have caused such unfair discrimination in the past are eliminated Past unfair discrimination frequently has ongoing negative consequences, the continuation of which is not halted immediately when the initial causes thereof are eliminated, and unless remedied may continue for a substantial time and even indefinitely. Like justice, equality delayed Is equality denied....'

[75] The commitment to achieving equality and remedying the consequences of past discrimination is immediately apparent in s 9(2) of the Constitution.... That provision makes it clear that under our Constitution ‘(e)quality includes the full and equal enjoyment of all rights and freedoms'. And more importantly for present purposes, it permits ‘legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination These measures may be taken ‘(t)o promote the achievement of equality'

[76] But transformation is a process. There are profound difficulties that will be confronted in giving effect to the constitutional commitment of achieving equality. We must not underestimate them. The measures that bring about transformation will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities. It may well be that other considerations may have to yield in favour of achieving the goal we fashioned for ourselves in the Constitution. What is required though, is that the process of transformation must be carried out in accordance with the Constitution. As was recognised in Bel Porto School Governing Body and
Others v Premier, Western Cape, and Another...:

‘The difficulties confronting us as a nation in giving effect to these commitments are profound and must not be underestimated The process of transformation must be carried Out in accordance with the provisions of the Constitution and its Bill of Rights. Yet, in order to achieve the goals set in the Constitution what has to be done in the process of transformation will at times inevitably weigh more heavily on some members of the community than others.'

[77] It is against this constitutional commitment to achieving equality that the Act must be understood and construed (underlining supplied; footnotes omitted)

29 Bato Star does not support the Court a quo's finding. It calls it into question.

(b) The Second General Principle: Employment equity is limited by law

30 This is an extension of the first general principle. Its premise is that employment equity measures are subject to the right to equality. But viewed in its proper context as envisaged in section 9(2) of the Constitution and the relevant provisions of the EEA referred to above, it is in fact the right to equality that is subject to employment equity measures. The Court a quo is with respect mistaken in inverting the hierarchical order of these two constitutional principles.

31 Moreover, by this general principle the Court a quo seems to express the view that the employment equity policy is not law, otherwise why would it be "limited by law"? The SAPS employment equity plan was prepared pursuant to section 20 of the EEA to give content to the constitutional injunction of promoting the achievement of equality in the workplace. It is thus a constitutional measure.

(c) The Third General Principle: Absent a suitable candidate from the under- represented group, a post must be given to a suitable candidate from the over-represented group unless a clear and satisfactory explanation can be given

32 The very basis of this general principle is founded in fact. First, there were two other suitable candidates from the under-represented group, Captain Ledwaba and Captain Mogadima. Secondly, even Captain Barnard conceded that Captains Ledwaba and Mogadima were suitable candidates.

33 In any event the granting of a designated post to a candidate from the over- represented group misses the whole philosophical underpinnings of the employment equity policy. The rationale for employment equity is to promote the achievement of equality by ensuring equitable representation of designated groups in all occupational categories and levels in the workplace. By this general principle the Court a quo proposes the exact opposite of that. In so doing, the Court a quo encourages wanton disregard for a perfectly legitimate measure that has constitutional underpinnings. Even Captain Barnard acknowledges it as such. But then she seems to misconstrue the very thesis she claims to understand when she complains that she was not promoted despite obtaining the highest score, getting favourable comment from the panel and the divisional commissioner, having a clean record and doing her job.

34 The Court a quo requires a "clear and satisfacto,y explanation" for not appointing a candidate from an over-represented group. But the employment equity plan itself constitutes such explanation. To require a further explanation is to require the explanation of an explanation. This is with respect patently unreasonable. It is not the standard required by the Constitution.

(d) The Fourth Genera! Principle: There must be a rational connection between the provisions of the employment equity plan and the measures adopted to implement it

35 In positing this principle, the Court a quo asked and answered the wrong question. The question is rather whether there is a rational connection between the transformational goal of promoting the achievement of equality by ensuring equitable representation of designated groups in all occupational categories and levels of SAPS, on the one hand, and the means used to achieve that goal on the other. In other words, is the SAPS employment equity plan reasonably justified by the goal it seeks to achieve? That is the relevant question.

36 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. That enquiry would have been relevant only if Captain Barnard had challenged the constitutional validity of chapter 3 of the EEA dealing with affirmative action and of the plan itself. She does not. In these circumstances, the rational connection between the plan and its implementation is irrelevant.

37 In any event, the SAPS employment equity plan 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.

38 It is not a measure that is designed to prefer black persons for the sake only of their blackness. One of the criteria for promotion is "suitability" which is defined in the National Instruction 1 of 2004 as meaning the ability to function effectively at the next higher post level, having no previous misconduct and criminal convictions and having no pending misconduct or criminal investigations. Thus, the plan does not countenance the promotion of mediocrity or incompetence over competence.

39 The chairman of the interview panel testified that service delivery would not have been compromised by the promotion of either Captain Ledwaba (an "African male") or Captain Mogadima (an "African male") over Captain Barnard (a while female).

43 The fact that neither of the African males, along with Captain Barnard, was promoted proves rather than bring into question the reasonableness of this promotion process and what it seeks to achieve. The National Commissioner, as Captain Barnard herself concedes, is under no legal obligation to fill a promotion position after advertising it. He has given a rational explanation for that. The appointment of Captain Barnard would not promote equitable representation of designated groups at salary level 9 of the NES. Perhaps the National Commissioner was looking for a black woman to fill that position. Thus, his explanation for not appointing either of the black males does not readily lend itself to irrationality as the Court a quo charges. In the context of the transformational goal, the legislative and regulatory topography, his is a rational and reasonable explanation.

(e) The Fifth General Principle: Service delivery is a relevant factor in the implementation of the employment equity plan

40 This is axiomatic in the affirmative action and employment equity context. POPCRU does not contend that an incompetent black candidate should be appointed in preference to a competent white woman. In fact National Instruction 1 of 2004 says one of the criteria for promotion is that the candidate must be suitable, and that means he or she must be able to function effectively at the higher post level to which promotion is sought.

41 But the Court a quo expressed the view that service delivery in this case is "not a decisive consideration" and that it would have reached the same conclusion without it.' Nevertheless, the evidence is that the fact that Captain Barnard was not promoted did not compromise service delivery. Her evidence seems to relate generally to the inspectorate being inundated with complaints against the police. Nowhere does she say the failure to promote her has compromised service delivery. The evidence of Superintendent Ramathoka remains undisputed in this regard. Captain Barnard has not pointed to a single instance evincing that service delivery has been compromised by her non-promotion.

D Conclusion

42 It is respectfully submitted that none of the general principles invoked by the Court a quo support the conclusion at which it arrived. The Constitutional Court authority on which it relies in fact supports the construction contended for by POPCRU.

43 In the circumstances, the decision of the Court a quo falls to be set aside.

V NGALWANA

Counsel for the Amicus Curiae
Duma Nokwe Group of Advocates
West Court Chambers

30 March 2011

LIST OF AUTHORITIES

1. Sections 1 and 9 of the Constitution of the Republic of South Africa, 1996, Act 108 of 1996

2. Preamble of the Employment Equity Act 5.5 of 1998

3. Section 1 of the Employment Equity Act 55 of 1998: Definitions on "designated employer" and "designated groups"

4. Section 2 of the Employment Equity Act 55 of 1998

5. Chapter 3 of the Employment Equity Act 55 of 1998

6. Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC)

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

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