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

_______________________________________________________________

2

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

1

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.

2

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.

3

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.

4

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.

5

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.

6

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.

7

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.

8

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.

9

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.

10

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.

11

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.

12

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.

13

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.

14

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.

15

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.

16

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)

17

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.

18

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.

19

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.

20

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

21

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.

22

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.

23

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.

24

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.

25

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.

26

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.

27

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.

28

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.

29

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].

30

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".

32

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).

34

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.

35

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.

36

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.

37

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.

38

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.

39

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.

40

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.

41

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.

42

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.

43

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].

44

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

46

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