MAKING SENSE OF AFFIRMATIVE ACTION CASES Shamima Gaibie Cheadle Thompson & Haysom Inc.

1. MAKING SENSE OF AFFIRMATIVE ACTION CASES Shamima GaibieCheadle Thompson & Haysom Inc.

2. INTRODUCTION • Three of the four cases dealt with by the Labour Court during the last year concern competing claims by employees who fall within the definition of designated groups. • The pertinent issue in the three cases was whether affirmative action measures may legitimately differentiate between persons within a particular designated group? • Put another way, can an employer, in its employment equity plan (EEP) indicate affirmative action measures for members of the designated group by classifying them into categories of relative disadvantage vis-a vis each other? • In Minister of Finance v Van Heerden 2004 (6) SA 121 (CC), the Constitutional Court raised the issue, and flagged it as ‘a more difficult problem’ and a matter for future consideration. 2

3. THE APPROACH IN PREVIOUS JUDGMENTS • The issue was however raised, outside the employment context, in circumstances that concerned certain quotas that applied to the admission of students to the Medical School of the University of Natal: Motala v University of Natal 1995 (3) BCLR 374 (D). • Motala, an Indian female, was refused entry into the Medical School because the University had decided that only 40 Indian students would be admitted annually, and that the requisite number had been reached. • The University had adopted a policy to admit more African students in order to redress the educational disadvantages that they suffered under apartheid. In order to facilitate the implementation of this policy, the University accepted that the school results of the African students would be lower than those of other applicants, like Motala, who would not be admitted. 3

4. Motalacontended that this policy unfairly discriminated against her. The High Court rejected this contention and held as follows: “The contention by counsel for the applicants appears to be based upon the premise that there were no degrees of ‘disadvantage’. While there is no doubt whatsoever that the Indian Group was decidedly disadvantaged by the apartheid system, the evidence before me establishes clearly that the degree of disadvantage to which African pupils were subjected under the {apartheid} system of education was significantly greater than that suffered by their Indian counterparts. I do not consider that a selection system which compensates for this discrepancy runs counter to the provisions of {the equality provision of the Interim Constitution}” – pg 383C. 4

5. As indicated above, this issue has not been dealt with by the Constitutional Court, but Sachs J indicated in Van Heerden that the distinction or differentiation between persons in a particular disadvantaged group would require not only legal, but also historical and social evidence (para 149). • Implicitly Sachs J was referring to the importance of evidence relating to the levels of disadvantage suffered by the different groups. • The question is whether this is an appropriate basis upon which a distinction can be made between persons who fall within the designated groups? • The Motala approach also found favour in the earlier judgments of the Labour Court: • In McInnes v Technikon Natal(2000) 21 ILJ 1138 (LC) at 1148, the LC recorded this paragraph from the Technikon’s affirmative action policy, and confirmed that it met the legislative requirements: 5

6. “The technikon defines affirmative action as the upliftment and advancement of all previously disadvantaged communities by seeking to redress the imbalances of the past. The first disadvantaged community to be considered at Technikon Natal is the African community..” • In Fourie v Provincial Commissioner of the SA Police (North West Province) (2004) 25 ILJ 1716 (LC) at 1735 the court described the relative disadvantage suffered by white women as opposed to other persons in the designated group: “I do not believe that it can be disputed that Black people were discriminated against under apartheid. African people in particular were severely discriminated against. They were treated as fourth class citizens. I accept that white women were discriminated against under apartheid but not to the same extent as Black people and in particular African people.......” 6

7. In Henn v SA Technical (Pty) Ltd (2006) 27 ILJ 2617 (LC) at 2623, the court stated as follows: “The Motala case was not decided in the employment context. The relevant principle that one derives from the judgment is that it should be recognized that there are different degrees of discrimination to which people were subjected. The question then is whether the same principle can be applied in the employment context. The principle was acknowledged to be applicable in McInnes v Technikon Natal .......................” • These decisions raise complex issues about whether this is the appropriate measure for differentiating between individuals who are from the designated groups, and how that translates into targets in an employment equity plan. 7

8. It is not clear from the Motala judgment precisely what sort of statistical evidence was before the court in order to demonstrate the degrees of disadvantage. What is clear is that the judge refers to the evidence in relation to African pupils under the apartheid system of education. It does not appear from that judgment that the statistical evidence was intended to demonstrate the degrees of disadvantage between the different races in the general sense. On a factual basis therefore, the reliance on that information in the employment context by the above decisions is misplaced. • More significantly however, the question is whether the EEA sanctions the Motala approach in the employment context. • Before we examine the EEA, it is useful to assess the recent cases on the topics. 8

9. RECENT CASES • SAPS v Solidarity obo Barnard • (2013) 34 ILJ 590 (LAC) Background • Barnard is a white female. She commenced employment with the SAPS in 1989. In 1997 she was promoted to the rank of captain. She served as branch commander, detective services at the Hartebeespoort Station and was after some years, transferred to the National Evaluation Service (NES) within the SAPS. First advertisement • In 2005, SAPS advertised a non-designated post of ‘superintendent’ at a salary level 9 in the NES. 9

10. Barnard was a captain at salary level 8. She applied for the post, was shortlisted and interviewed together with 6 other candidates. The relevant applicants for the post were rated as follows: • Barnard: 86.67%. • Two white males: 74.17% and 72.92% respectively. • Four black male candidates: the best was Captain Shibambu who received a rating of 69.17%. • Recommendation of the interview panel: • the difference between the ratings of Barnard and Shibambu were too vast to recommend Shibambu because that would compromise service delivery, whereas Barnard’s appointment would ‘definitely enhance service delivery’. 10

11. .Decision of the Divisional Commissioner: • Post will not be filled; • Appointing the first 3 candidates will aggravate the representivity status of the already underrepresented sub-section; Second advertisement • On 11 May 2006, the SAPS advertised the post again. Barnard applied again. This time she received a rating of 85.33%. 11

12. Two black male candidates followed with ratings of 78% and 74.67%, respectively. • Recommendation of the interview panel: Barnard should be appointed. • The recommendation was supported by the divisional panel which included the Divisional Commissioner. • The divisional panel sent the following recommendation to the national commissioner: “.......................[Barnard] is recommended as the panel’s first choice candidate for the post. She has proven competence and extensive experience at national level in the CORE functions of the post and was rated the highest by promotion panel ....... The appointment will not enhance representativity on salary level 9 but it will not aggravate the current divisional representativity figures as she is already part thereof. Appointing the candidate on salary level 9 will however create an opportunity to enhance representativity on salary level 8 in respect of the overall representation of white females on that level ........” 12

13. What did the national commissioner do? • He did not approve the recommendation on the basis that: • it did not address representativity; • the post was not critical, and indicated that the non-filling of the post would not affect service delivery. • He did not make any appointment and called on the Divisional Commissioner to re-advertise the post in the next recruitment round with an emphasis on ensuring that all efforts will be made to address representativity when advertising and interviewing for the post. 13

14. LC Judgment • In summary, the LC court held that: • The failure to promote Barnard was a decision based on her race, it was therefore unfairly discriminatory; • SAPS relied on the principal consideration of the numerical targets at salary level 9 (as dictated by its EEP) with no consideration of how her appointment would have alleviated under representation at salary level 8; • No consideration was given to her right to equality and dignity, to her personal work history, and circumstances. 14

15. The above findings were based on the following principles: • The EEA and the EEP must be applied rationally, in accordance with fairness and with due regard to the individual’s right to equality and dignity; • It is not appropriate to apply the numerical goals of an EEP mechanically because it is too rigid; • Where a post cannot be filled due to the paucity of candidates from an under- represented category, promotion to a post should not ‘ordinarily and in the absence of a clear and satisfactory explanation be denied to a suitable candidate from another group’; • There must be a rational connection between the provisions of the EEP and the measures adopted to implement that plan; 15

16. Service delivery was a relevant factor to be taken into account in the implementation of EEPs. • The LC’s application of the principles to the facts: • Having decided not to appoint either of the 2 black candidates, it was unfair and irrational in those circumstances not to appoint Barnard who was the best candidate; • There was no evidence to show that Barnard’s right to equality was taken into account or that her personal employment history was considered by the commissioner; • Failure to appoint her was also unfair because service delivery was compromised. 16

17. Judgment of the LAC Did Barnard’s non-appointment amount to discrimination? • LAC says that when an employee talks about ‘discrimination’, the employee must allege that a differentiation of some sort has taken place. • In this case no person was appointed, and therefore on the facts there was no differentiation. • The discriminatory conduct that the LC talked about is not of the conventional type. It is the omission not to appoint her because she is a white person. The question is whether such discrimination was unfair in terms of section 6 of the EEA. 17

18. Section 6(2) of the EEA provides as follows: “It is not unfair discrimination to – • take affirmative action measures consistent with the purpose of the Act; or • distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.” • It is incorrect to render the implementation of restitutionary measures subject to an individual’s right to equality. A contrary approach would defeat the purpose of such restitutionary measures, because such measures will inevitably always adversely affect employees from non-designated groups. 18

19. S20 of the EEA gives a designated employer the power to use its EEP to adopt recruitment measures that seek to bring equity in the ranks of its employees and to redress under-representativity of certain categories of employees in the workplace. • SAPS had adopted an EEP, the numerical goals for level 9 of the NES, was that by 2006, there should be 10 African males and 6 African females, one white male and one white female. • The plan made provision for eight and six level 9 posts to be made available for the appointment or promotion of African males and black candidates respectively. Rigid or not, these targets represent a rational programme aimed at achieving the required demographic representativity required by the plan. • Appointment of Barnard would not have advanced representativity in level 9, it would have aggravated the over-representativity of white employees in level 9, and would have constituted a step back and in direct violation of a clear constitutional objective. 19

20. Discriminating against Barnard was justifiable in these circumstances. Was the EEP rational? • To answer this question, the LAC looked at the EEP and concluded that: • The EEP does not seek the appointment of black candidates irrespective of other criteria; • One of the criteria in the plan is the suitability of candidates, which indicated to the court that an unsuitable black candidate would not be appointed; • The EEP does not sanction mediocrity or incompetence; • The plan was drafted with due consideration of rationality and reasonableness. It identifies the gaps requiring attention, as well as provides a programme of action within a specified time period. 20

21. Was service delivery compromised by her non-appointment? • The LAC held that the LC’s conclusion that service delivery was compromised, was incorrect. According to the LAC: • The national commissioner is the accounting officer of SAPS and is the only person answerable in respect of service delivery matters; • He is the only person well-placed to determine if service delivery would be compromised by the non-appointment of Barnard; • It is not open to a court to 2nd guess his decision. 21

22. Comment • This matter did not deal with competing claims between individuals within the designated group. It was limited to the non-appointment of a white female employee. The LC judgment is clearly incorrect and whilst the judgment suggests that an affected complainant’s employment history and circumstances must be taken into account when affirmative action measures are implemented it does not go so far as to indicate how such circumstances will impact on the implementation process. Naidoo v Minister of Safety and Security 2013 (3) 486 (LC) Background • This matter concerned a challenge to the SAPS EEP for the period January 2007 to December 2010. 22

23. The EEP • The EEP provided, amongst other things, the following: • Targets were formulated on the basis of the national race demographics: 79% African; 9,6% white; 8,9% coloured and 2.5% Indian (formulated on the basis of the 2001 census report); • Gender targets were set in the following ratio: 70% male and 30% female – (not clear how these ratios were developed, given that the 2001 census report indicated that women constituted 51% of the population). • The 30% target for women is applied to women as a designated group in their race group. So for instance, if there are 10 posts to fill, 80 posts must be filled by Africans (79%), and of those 8 posts (30%) are to be filled by women. So 2 of the 8 will be filled by women. 23

24. The post and process of non-appointment • On 14 April 2009, the SAPS advertised several posts including 5 positions for cluster commander in the Gauteng region; • Naidoo applied for the position of ‘cluster commander: Krugersdorp’, a level 14 post. She was shortlisted and interviewed and was given a rating of 74,2%, the 2nd highest score. • The candidate with the highest score was recommended for another post. The provincial selection panel recommended the appointment of Naidoo because it would address gender equity. Maswanganyi was recommended as the second preferred candidate (4th highest score) and du Bruin as the third candidate. 24

25. On 24 July 2009, the national panel did not appoint Naidoo because it would not enhance employment equity and would not be consistent with service delivery objectives. Instead, they appointed Maswanganyi. Nature of the dispute • Naidoo alleged that she suffered unfair discrimination because the EEP constituted an absolute barrier to her appointment, and that the targets are essentially arbitrary. • The barrier is demonstrated by the following mathematics: • There were 19 positions on level 14; • To calculate how many of these posts would be given to Africans, the following calculation was applied: 19 x 79% = 15 posts; 25

26. A similar calculation was applied to Indians: 19 x 2.5% = 0,475 posts. To calculate how many of these would be occupied by Indian females: 0,5 x 30% = 0,1 which was rounded off to 0%; • The calculation in relation to Coloureds would be as follows: 19 x 8.9% = 1.69 posts; and in relation to Whites would be 19 x 9.6% = 1.82 posts; • In other words there was no provision made for the appointment of Indian females, despite the fact that they shortlisted, interviewed and recommended Naidoo’s appointment. • The net effect of the gender targets is that, in the lower grades of levels where there are many more jobs, the 2,5% ratio allows for some Indian representation, whereas in the middle or top levels, where the posts are few, Indians cannot be employed. According to a strict application of the demographics, Whites received more posts than Coloureds or Indians. 26

27. LC judgment • The court said the following about the targets: • Its practical effect is to set a race and gender based preference, in which Indian females fall at the end of the designated groups; • Its second effect is that it creates degrees of disadvantage within the designated groups. That means that women as the majority of the designated group will continue to suffer underrepresentation. • The EEP undermines the constitutional objective of equality. Instead of promoting non-racialism, it promotes race rivalry, and instead of embracing non-sexism it proffers tokenism. 27

28. The numeric targets present themselves as a barrier and quota rather than a target. The quota provides that no Indian females may be appointed. • The object of the EEA is to create a workforce that was broadly representative of the South African community. Section 42(a)(i) which refers to the ‘demographic profile of the national and regional economically active population, is at variance with section 15(1) of the EEA that states: “Affirmative action measures are designed to ensure that suitably qualified people from designated groups have equal opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer. Section 42(a)(i) provides: In determining whether a designated employer is implementing employment equity in compliance with the Act, the DG .... must ... take into account ..... (i) demographic profile of the national and regional economically active population. 28

29. In its criticism of the employer’s reliance on the national race demographics, the court attempted to propose an alternative model, but had great difficulty in articulating it clearly. In this regard, the court stated the following: • It may well be that to achieve substantive equality and ‘equitable representation’, a group within the designated group is advanced, while another is disadvantaged. The disadvantage to be endured by the latter group is incidental to the purpose of promoting substantive equality. The disadvantage suffered is in pursuit of a higher purpose and, to the extent that the higher purpose is realised, the disadvantaged group also benefits. Thus advantage and disadvantage cannot be seen in a narrow context bound by the moment. A situation-sensitive approach is required - para [160]; 29

30. Our jurisprudence and laws call for ‘equitable representation’ and this requires a concrete, contextualised approach. We eschew a formulaic, mechanistic approach – para [165]; • In section 42 of the Equity Act, the factors to be considered in assessing compliance are circumscribed, and within the designated group there is no ranking order or preference for favour. It may well be that one or another group at particular moments in time warrants special attention on account of the fact that they are simply not represented or sufficiently represented to a degree ‘equitable’. 30

31. Comment • On a strict application of the meaning of ‘equitable representation’ the outcome of this decision is wrong. • Whilst the court spent a lot of time assessing the effect of these targets, it did not indicate the basis on which targets must be determined for the purposes of an EEP. Instead it proposed an extremely flexible approach which will effectively be determined by the circumstances – a ‘situation-sensitive approach’. • This approach is clearly undesirable because the court doesn’t establish the parameters of such an approach, and any affirmative action appointment will be challengeable on the basis that it did not determine the matter sensitively enough. This approach is much like the approach proposed by the Labour Court in the Barnard matter. 31

32. Munsamy v The Minister of Safety and Security – Case no:D253-03 – 3 April 2013 Background • In 2000 there were 195 vacant posts at the level of superintendent in KZN. M applied for posts 459, 463 and 493. • M was recommended for post 459 but was not appointed because Indian males were over-represented and African males were under-represented at that level. A white female was appointed to post 463, and a black male to post 493. • In terms of a collective agreement concluded in Jun 1997, it was agreed that – • the employer will strive to attain a minimum of 50% black people and 30% women at management levels by 2000; • the employer would use the statistics from the 1996 census report; 32

33. an EEP would be drafted and a committee will be constituted for this purpose. • In early 2000, the promotion process began and the national office directed that the criteria for selection must include ‘representivity’ and that the numerical targets of 70% black, 30% white and 50% women must be achieved as far as possible, taking into consideration the composition of the provinces. • A provincial selection panel in KZN considered the applications and made recommendations to a national selection panel. Each candidate was scored on expertise and experience and then on representivity. Indian males and white males were given a score of 5.5, while African males were given a score of 8. • M was shortlisted for posts 459 and 493. 33

34. Their recommendations achieved the following target: 73.85% black; 26.15 white in relation to the 195 posts. This achieved the 50% / 50% ratio set out in the collective agreement and the 70% / 30% ratio in the national office directive. • The recommendations were not approved by the national panel. They required the provinces to review their recommendations in accordance with different statistics. The demographics supplied by the 1996 census report was to be used as a guideline. • In terms thereof, 192 of the 195 posts were allocated to Africans; Indian male incumbency was to be reduced by 17 posts, and Indian female incumbency to be reduced to 7. • The province’s recommendation of M’s appointment was substituted with a recommendation that one Captain Zakwe be promoted in his stead. 34

35. LC Judgment • The point system applied by the provincial panel to score applicants was not indicated or permitted by any EEP, and the employer was unable to explain how such a point system was established. This system was arbitrary and lacked any rational basis – para [32]; • The main measure that led to M’s de-selection, was the instruction from the national panel and an interim EEP submitted in 2000. This EEP was not the subject of consultations. • Of the 195 posts, 192 was allocated to Africans, effectively awarding that category 100% of the posts – para [35]; • The potential effect of this allocation was that Indian males would have to migrate to other provinces for the purposes of seeking promotion – para [38]; . 35

36. The targets effectively operated as quotas. • In the circumstances, the employer failed to prove that the discrimination against M was in line with an EEP that had been the subject of proper consultation and that the measures relied upon to de-select M were permitted in terms of such a plan – para [54]; • The application of national demographics in circumstances where 30% of the positions were allocated to whites a non-designated group, and 3% to Indians a designated group, lacked rationality – para [55]; • In any event, the employer relied on the demographics of the general population as opposed to the demographics of the economically active population – para [57]; 36

37. The document produced by the employer showed that in 1996, 9.2% of the Indian population were economically active, whereas M’s document established that the percentage was at 15.2% - para [59]; • In terms of the national demographics relied upon, the percentage that should have been applied to each of the designated groups was as follows: • African - 76.7% = 101.7 posts • Coloured - 8.9% = 11.8 posts • Indian - 2.6% = 3.5 posts • In the circumstances, 90 more posts than anticipated in terms of the above figures was allocated to African posts – paras [60 – 62]. 37

38. It is not possible to say that but for these errors M would have been appointed given the employer’s claim of over-representivity at that level. But the court concluded that the application of affirmative action measures which resulted in M being denied promotion to post 459 was not in line with a defensible employment equity plan and the employer’s conduct was unfairly discriminatory against him. Comment • The outcome of this decision was correct. • The court hinted that the application of national demographics lacked rationality because the consequence is that a non-designated group is effectively allocated a larger share of posts than some of the designated groups, but the court did not proffer an alternative. 38

39. There is however a fundamental problem in determining a rational solution to how posts should be allocated within the designated group and whether or what criteria should be applied in determining competing claims within the designated group. • Some of the applicable provisions of the legislation that impacts on this issue are the following: • Section 195(1)(i) of the Constitution says: Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past and to achieve broad representation. 39

40. Section 15(1) defines affirmative action measures 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.” • Section 42(a)(i) – “.... demographic profile of the national and regional economically active population”. • Both the Act and the Good Practice Guidelines don’t provide a definition of ‘equitable representation’ but they do provide indicators of what the term might mean: • Section 19(2) requires a designated employer, before developing an EEA, to determine the degree of under-representation of people from designated groups in various levels at the workplace. This is done with reference to demographic data [item 7.3.2(b) of the Code]; 40

41. The demographic data may be regional, provincial or national depending on the level of responsibility and the degree of specialisation of the job (this might mean that the more specialised the job, the bigger the recruitment area); • The ultimate goal is to make the workforce reflective of the demographics – [item 8.4.1]; • The one option is to determine the matter on ‘degrees of disadvantage’ like the earlier decisions have done. This method is in my view extremely unscientific and generally unobjective, and insensitive to peoples experiences. But more importantly the EEA does not indicate that such matters can be determined on this basis. 41

42. A second option is to determine the matter on the statistics obtained from the most recent census report, which will in general allocate posts in order of the following preference: Africans, whites, coloureds, Indians and the disabled (and to cater for the female component within each group). If national population demographics are use, whites will be allocated more posts than the designated groups. Given that the purpose of affirmative action measures is intended to redress the imbalances of the past, a strict application of the national demographics simply does not achieve this purpose. Minister of Safety & Security v Govender [2012] 1 BLLR 55 (LC) • In this case, on the authority of Dudley v City of Cape Town & another (2008) 29 ILJ 2685 (LAC), the Labour Court held that – • where an employee’s unfair discrimination claim relies on a right to enforce an employer’s employment equity plan, such a claim is not one that an individual employee can make in the wake of the LAC decision; 42

43. it is not competent to pursue an individual claim of unfair discrimination on account of the employer’s failure to adhere to an employment equity plan until the enforcement provisions provided in Chapter V of the EEA have been exhausted. Comment • This case simply restates existing principle. The real problem in this area is the lack of enforcement mechanisms in relation to affirmative action measures which are contained in EEPs. END. 43