IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO.: JS1097/09
In the matter between:
SOLIDARITY - First Applicant
EMIL JOHAN OOSTHUIZEN - Second Applicant
MARTHA MAGDALENA OOSTHUIZEN - Third Applicant
and
S A POLICE SERVICE First Respondent
THE MINISTER OF SAFETY & SECURITY N.O. - Second Respondent
THE NATIONAL COMMISSIONER OF THE SA POLICE SERVICE N.O. - Third Respondent
APPLICANTS' STATEMENT OF CLAIM IN TERMS OF RULE 6 OF THE RULES OF THE LABOUR COURT
1. The Applicant will accept notices and service of all documents in this matter at the following address:
C/O Eendracht & D.F. Malan Avenue
P.O. Box 11760 Kloofsig
Centurion, 0046
Fax No (012) 664 1101
Telephone No (012) 644 4300
2. Any of the Respondents who intends opposing the matter must deliver a response within 10 days of service of this statement in terms of sub-rule 6(3) of the Rules of the above Honourable Court, failing which the matter may be heard in that party's absence and an order for costs may be made against that party.
Details of the parties
3.1 The First Applicant is Solidarity, a trade union duly registered in terms of the Labour Relations Act No 66 of 1995 (hereinafter referred to as "the Act") with principal office situated at do DF Malan Avenue and Eendracht Street, Kloofsig, Pretoria.
3.2 In launching this application Solidarity acts on behalf of Mr. and Mrs's Oosthuizen, both being paid - up member of Solidarity, in terms of section 200 of the Labour Relations Act.
3.3 The First Respondent is the South African Police Service established in terms of the South African Police Service Act, an employer as defined in the Labour Relations Act 66 of 1995, Pretoria and headed by the Minister of Safety and Security with the following particulars:
231 Pretorius street
Thibault Arcade
Pretoria
0001
Private Bag X94
Tel.: (012) 393 7034 Fax: (012) 393 7159
3.4 The Second Respondent is the Minister of Safety and Security EN Mthetwa, cited in his official capacity and represented by the offices of the State Attorney with particulars as follows.
8 Floor
Old Mutual Centre
167 Andries Street
Pretoria
0001
Private Bag X91
Pretoria
0001
3.5 The Third Respondent is the National Commissioner of the South African Police Service Mr. B. Cele cited in is official capacity and represented herein by the offices of the State Attorney, with particulars as stated above.
4. The abovementioned Honourable Court has jurisdiction to hear this matter by virtue of Section 6 of the Employment Equity Act.
Statement of the facts that will be relied on:
SECOND APPLICANT
5.1 The Second Applicant, is a white male previously employed by the SA Police Service (SAPS) from the 1st of January 1990 up and till the 30 of September 2006 when he resigned.
5.2 The Second Applicant was employed by the First Respondent in the rank of Inspector, as a fingerprint expert in the Local Criminal Record Centre.
5.3 During July 2008 the Second Applicant made an appointment with Superintendent Frost from the Local Criminal Record Centre and requested information regarding the procedures for re-enlistment, after which the Second Applicant approached the Local Criminal Record Centre Johannesburg were Senior Superintendent van Vuuren provided the Second Applicant with a letter of recommendation for re-enlistment. The Applicant accordingly applied for re-enlistment on the 18th of August 2008 at the Local Criminal Record Centre Johannesburg, Kempton Park and Springs for positions as fingerprint expert, as well as position advertised in the Sunday newspaper Rapport for Krugersdorp.
5.4 At the time there was a critical shortage of qualified personnel in the specialised tasks synonymous with LCRC activities, which shortage persists to this day
5.5 On a letter dated the 31st of March 2009, the Second Applicant was informed that his profile will unfortunately not enhance/improve the current status with regards to employment equity and therefore his application could not be approved.
5.6 On the 10 of July 2009, the Second Applicant again applied for 20 different positions in the SAPS which were advertised in the Sunday newspaper the Rapport and further indicated that he is also willing to accept positions at the Tokoza, Kwa-Thema and Tsakane stations. Up and till the filing of the Statement of Claim the Second Applicant had no response to his application.
5.7 The Second Applicant remains willing and able to assume the position, in which he would be immediately effective.
5.8 The Applicant referred a dispute to the CCMA and on the 9th of September 2009, Commissioner Radebe issued a certificate that the dispute remained unresolved and accordingly referred it to the Labour Court for adjudication.
THIRD APPLICANT
5.9 The Third Applicant, is a white female previously employed by the SA Police Service (SAPS) from the 1st of March 1990 up and till the 31st of March 2006 when she resigned.
5.10 The Third Applicant was employed by the First Respondent in the rank of Inspector, as a fingerprint expert in the Local Criminal Record Centre.
5.11 During July 2008 the Third Applicant made an appointment with Superintendent Frost from the Local Criminal Record Centre and requested information regarding the procedures for re-enlistment, after which the Third Applicant approached the Local Criminal Record Centre Springs were Senior Superintendent Roos provided the Third Applicant with a letter of recommendation for re-enlistment. The Applicant accordingly applied for re-enlistment on the 18th of August 2008 at the Local Criminal Record Centre Springs, Germiston and Kempton Park for positions of fingerprint expert as well as position advertised in the Sunday newspaper, Rapport for position in Krugersdorp.
5.12 At the time there was a critical shortage of qualified personnel in the specialised tasks synonymous with LCRC activities, which shortage persists to this day.
5.13 The Third Applicant received no reasons why he application was denied and it is submitted and it will be argued at the hearing of this matter that the reasons were the same as for the Second Applicant, namely that the Third Applicant's profile will not enhance/improve the current status with regards to employment equity and therefore her application could not be approved.
5.14 On the 1O of July 2009, the Third Applicant again applied for 20 different positions in the SAPS which were advertised in the Sunday newspaper the Rapport, and indicated that she is willing to accept positions at the Tokoza, Kwa-Thema and Tsakane stations. The Third Respondent has however not received any information/reasons from the Respondent for her request for re-enlistment.
5.15 The Third Applicant remains willing and able to assume the position, in which she would be immediately effective.
5.16 The Applicant referred a dispute to the CCMA and on the 9th of September
2009, Commissioner Radebe issued a certificate that the dispute remained unresolved and accordingly referred it to the Labour Court for adjudication.
The legal issues that arise from the above facts:
6.1 whether the Second and Third Applicants were directly discriminated against on the basis of race:
6.2 whether, if the Second and Third Applicants were discriminated against, such discrimination was unfair;
6.3 whether the Respondents are entitled in the circumstances to raise equity targets as a defence to the claim of unfair discrimination, more particularly in circumstances where there were no (qualified) designated candidates and the post was never filled;
6.4 whether the Respondents were required by law to consider the merits of the Applicant's application and, if so, whether they did so;
6.5 whether the Respondents acted arbitrarily, capriciously and/or according to a• wrong principle by refusing to consider the Applicant's appointment solely because it would not "enhance" employment equity targets;
6.6 whether the decision not to appoint the Applicants was taken in terms of an equity plan or policy and, if so, whether that plan or policy was complied with;
6.7 whether, by not appointing the Applicants, the Respondents breached their constitutional obligation to prevent, combat and investigate crime in the most efficient manner possible;
6.8 whether, by not appointing the Applicants, the Respondents have promoted the goal of employment equity in the manner and for the purposes contemplated by the Employment Equity Act 55 of 1998 ("the EEA") and the Constitution;
6.9 whether, if the Respondents are found to have complied with the requirements of the EEA, that Act is constitutionally compliant;
6.10 whether the Applicants is entitled to relief.
Relief sought
7.1 An order declaring that the Respondents' failure/refusal to appoint the Second and Third Applicants to one of the vacant position in the Local Criminal Record Centre constituted unfair discrimination.
7.2 An order directing the Respondents to appoint the Second and Third Applicants in one if the position at the Local Criminal Record Centre with retrospective effect to the date of 1st March 2009.
ALTERNATIVELY
An order directing the Respondents to pay the Second and Third Applicants compensation in the amount that the Court deems fit to grant.
7.3 Directing the Respondent to take steps to prevent the same unfair discrimination or a similar practice occurring in future in respect of other white applicants.
7.4 Publication of the Court's order in the event of the Applicant being successful.
7.5 Such further and/or alternative relief as the Honourable Court deems fit to grant.
Schedule of documents
9. Attached is a schedule of documents, which are material and relevant to the issue.
SIGNED AND DATED AT CENTURION ON THIS 21ST DAY OF OCTOBER 2009
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