An inspector in the National Intervention Unit in Durban applied for the post of a Platoon Commander in the same unit.   He was shortlisted and interviewed by a panel.    The panel found him suitable for appointment.   The panel recorded that he had scored the highest score, followed by Inspector N E Ntoyi and another candidate.   The panel recommended that the inspector be promoted to the rank of Captain in this post.   In accordance with the prescribed procedure the recommendation was submitted to a divisional panel.   This panel examined the recommendation, declined to follow it and recommended to the employer that Inspector Ntoyi be promoted to the post.

The inspector referred a dispute and the arbitrator noted that the issue to be decided was whether the employer’s conduct in failing to promote the inspector was unfair and constituted an unfair labour practice [LRA s 186(2)(a)] and decided that it was and promoted the inspector to the rank of Captain in the post.

On review the Labour Court set aside the award – South African Police Services v Zandberg [2010] 2 BLLR 194 (LC) per Pillay J.

The Labour Appeal Court upheld the LC judgment –   Zandberg v South African Police Services  unreported (LAC) case DA18/10 dated 23.03.2012 per Landman AJA (Patel & Ndlovu JJA concurring).

Extracts from the LAC judgment

[3] Mr S Van Vollenhoven, who appeared for the appellant, attacked the fairness of every stage of the process leading to the respondent’s decision not to appoint the appellant and also challenged the substantive fairness of the decision.   However, at the outset of the hearing, Mr Van Vollenhoven and Mr Krüger, who appeared for the respondent, agreed that:

(a) The respondent’s final decision was to be exercised in accordance with the provisions of the Employment Equity Act 55 of 1998 (“the Employment Equity Act).

(b) The respondent was not bound by the recommendations of the first and second selection panels.

(c) Affirmative action is a constitutional imperative.

(d) The respondent was obliged to implement the SAPS’s employment equity plan.

The effect of this agreement was to limit the main submissions of the appellant which, initially, were centred on the inapplicability of the injunctive to apply affirmative action.

[4] Counsel also agreed that the record was of such a standard that this Court could decide the appeal with reference to it.   Condonation was granted in respect of late filing of the record.

The determination (classification) of the post

[5] The appellant’s principal contention, one which engaged the attention of the arbitrator and the court a quo, relates to the respondent’s decision to determine (classify) the post and advertise it as it was done.

[6] The governing instrument is National Instruction 1/2004 (the National Instruction) which regulates the promotion process (including fast-track promotions) within defined career paths of employees up to salary level 12.   A Captain’s post is a salary level 8 post.

[7] Vacant posts are generally advertised on a quarterly basis (see clause 5(2) of the Instruction).

[8] Clause 5(3) provides for the advertisement of posts.   It reads:

‘The National Commissioner may determine that certain posts be advertised for the designated or non-designated group.   If posts are advertised as such, employees belonging to the non-designated group may only apply for the post advertised for the non-designated group, while employees of the designated group may apply for any of the post advertised for the designated or non-designated groups.   The non-designated group includes all white males.   The designated group includes all African males and females, Indian males and females, coloured males and females white females and persons with disabilities.’

[9] The purpose of clause 5(3) is to facilitate the goal of a representative police service which broadly reflects the demographics of the country.   In order to achieve this white males, who are predominant in the police services, are restricted from applying for posts which are advertised as designated posts.

[10] A shift in the way the National Instruction is implemented has taken place.   In order to reduce, eliminate or circumvent complaints levelled at the restriction of white males to applications for non-designated posts only, all posts are advertised without specifying whether they are designated or non-designated.   Vacant posts are simply advertised.   But, according to Director Van Rensburg, who testified at the arbitration, the concern with representivity remains unaltered.   Representivity remains an important consideration as regards each and every application for promotion.

[11] The appellant’s contention is that this approach is not authorised by the National Instruction and therefore constitutes a gross irregularity which renders the process unfair.   The motivation for this submission rests upon the belief that the intention of determining and advertising such a post as a non-designated post meant that affirmative action would not apply in the selection of the successful candidate for the post.

[12] The court a quo did not subscribe to this view.   Mr Van Vollenhoven has referred to a number of awards where the approach he contended for was adopted.   Arbitrators, who have adopted such an approach, have, in my view, done so by seeking to draw a logical inference from the National Instruction.   But clause 5(3) of the National Instruction must be interpreted against the broader background.   This background is set by:

(a) The Constitution of the Republic of South Africa, 1996 (“the Constitution”) which provides, as regards the public administration of this country, in section 195(1) that:

’Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:

(i) 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 to achieve broad representation…’ (My emphasis)

(b) The Bill of Rights, enshrined in the Constitution, which affirms the principles of equality and outlaws discrimination.   It, however, permits affirmative action in an attempt to address the inequalities of the past and to normalise our society.   Regard must be had to the observations of Moseneke J (as he then was) in Minister of Finance and Another v Van Heerden  2004 (6) SA 121 (CC) at para 28 [also reported at [2004] 12 BLLR 1181] where he said

‘A comprehensive understanding of the Constitution’s conception of equality requires a harmonious reading of the provisions of s 9.   Section 9(1) proclaims that everyone is equal before the law and has the right to equal protection and benefit of the law.   On the other hand, s 9(3) proscribes unfair discrimination by the State against anyone on any ground including those specified.   Section 9(5) renders discrimination on one or more of the listed grounds unfair unless its fairness is established.   However, s 9(2) provides for the achievement of full and equal enjoyment of all rights and freedoms and authorises legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination.   Restitutionary measures, sometimes referred to as “affirmative action”, may be taken to promote the achievement of equality.   The measures must be “designed” to protect or advance persons disadvantaged by unfair discrimination in order to advance the achievement of equality.’

(c) The Employment Equity Act which provides detailed rules for achieving these goals including the obligation to prepare and submit an employment equity plan.

[13] The National Instruction may not and, in my view, does not provide that affirmative action would not be applied in the event that a post was determined as a non-designated post.

[14] When a post is determined as a designated post, non-designated persons, i.e.   white males, are completely excluded from applying for the position.   This is a strict form of affirmative action.   The construction, which the appellant suggests is applicable to clause 5(3), ignores the first sentence of that sub-clause.   The determination, that certain posts be advertised for the designated group and others for the non-designated group, is a discretion entrusted to the respondent.   In exercising this discretion, in the way in which he has done, the respondent has widened, on the face of it, promotional opportunities for white males in the South African Police Services.   It prima facie benefits the appellant.

[15] The benefit is not an insubstantial one.   Depending upon the circumstances of the case, it may well be that a white officer may be promoted even where there is an oversupply of white officers in the category in question.

 Application of employment equity

[28] The Divisional Commissioner was vigorously cross-examined with a view of showing that his recommendations regarding other candidates conflicted with the available documentation regarding employment equity.   The Divisional Commissioner dealt with this by stating that he did not have the information at his disposal and pointed out that some comparisons raised by the appellant’s representative, were not based on the applicable documentation for the period in question.   I am unable to fault the Divisional Commissioner on the basis of his evidence.   In other instances the Divisional Commissioner agreed that affirmative action was not applied strictly so that more than one non-designated officer was preferred above designated officers.   But this, as the Divisional Commissioner pointed out, was where the analysis showed that the unit in question was broadly representative of the demographic profile of the country.   In the case of the appellant white males were so far in oversupply that affirmative action was necessary.


[34] The plain, unvarnished facts are that the appellant had been selected by the first panel on account of the scoring.   He was about a point ahead of Inspector Ntoyi.   The appellant has not shown that he should have outscored Inspector Ntoyi by more than this.   The first panel erred in stating that the appellant’s promotion would advance representivity in the unit.   When the Divisional Commissioner received this information he realised there was a mistake.   He took into account employment equity and concluded that he could not justify promoting the appellant and recommended the promotion of Inspector Ntoyi.   This result, as the court a quo found, was entirely reasonable.   The arbitrator’s decision to the contrary was not one to which a reasonable arbitrator could have come; based as it was on an error of interpretation.