The union’s application for a declaratory order succeeded and the Minister’s Employment Equity Plan (EEP) for 2010-2014 was invalidated.  The Labour Court decided that the Minister had not breached s 195(1) of the Constitution nor s 27(2) of the South African Police Service Act 68 of 1995 in giving effect to the EEP.  But the Plan was invalid because:

  • it did not achieve substantive equality,
  • it provided for quotas and not numerical goals; and
  • all the factors in s 42 of the Employment Equity Act (EEA) were not properly considered.

The Labour Court declined to restrain the Minister from implementing the plan because it was held that it would not be appropriate ‘especially given the question mark that hangs over the extent to which it was implemented in practice’.

Solidarity v Minister of Safety and Security (J879/12) [2016] ZALCJHB 15 (26 January 2016) per Lagrange J.

Excerpts [footnotes omitted and references updated with links]

Relevant case law

[11]    At the time that the matter was argued, judgment was pending in the Constitutional Court case of Barnard.   Since that judgment was handed down there have been other matters in which the requirements of valid employment equity plans have been considered.  In this regard the cases of

are of interest. 

 

[12]    In Barnard, the Constitutional Court held that it was not dealing with a case in which the validity of the SAPS plan was being impugned, as the following passage from the majority judgment, per Moseneke ACJ, in the course of identifying where the SCA erred, makes clear:

“[51] With respect, that court misconceived the issue before it as well as the controlling law.  It was obliged to approach the equality claim through the prism of s 9(2) of the Constitution and s 6(2) of the Act.  This is because the employment equity plan was never impugned as unlawful and invalid.  It was not open to the court to employ the Harksen analysis of unfair discrimination, which presumed the application of the employment equity plan to be suspect and unfair.    At stake before that court was never whether the employment equity plan was assailable, but whether the decision the national commissioner made under it was open to challenge.

[52] The respondent readily accepted this position in this court.  She never pressed upon us to endorse the reasoning of the Supreme Court of Appeal.  Ms Barnard accepted that the employment equity plan in question was a valid affirmative action measure.  Equally, she did not impugn the validity of the instruction.  She never contended that either of the two were suspect and should have attracted a presumption of unfairness.  None of the parties contended otherwise nor can I find a valid reason to hold that the employment equity plan and the accompanying instruction are not affirmative action measures authorized by s 6(2) of the Act.

[53] Accordingly, there was no warrant for the Supreme Court of Appeal to burden the applicant police service with an onus to dispel a presumptively unfair discrimination claim and find that it had not discharged it.  The appeal in that court was therefore decided on the wrong principle.” (emphasis added).

[13]    Although it was not necessary for the Constitutional Court in Barnard to evaluate whether the SAPS plan in question was unfairly discriminatory, the court reiterated  some of the considerations which a proper approach to challenges of that kind entail:

“[30] Our 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 not 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.

[31] 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.

[35] An allied concern of our equality guarantee is the achievement of full and equal enjoyment of all rights and freedoms.  It permits legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination.   Restitution or affirmative measures are steps towards the attainment of substantive equality.  Steps so taken within the limits that the Constitution imposes are geared towards the advancement of equality.  Their purpose is to protect and develop those persons who suffered unfair discrimination because of past injustices.

[36] The test whether a restitution measure falls within the ambit of s 9(2) is threefold.  The measure must —

(a)   target a particular class of people who have been susceptible to unfair discrimination;

(b)   be designed to protect or advance those classes of persons; and

(c)   promote the achievement of equality.

[37] Once the measure in question passes the test, it is neither unfair nor presumed to be unfair.  This is so because the Constitution says so.  It says measures of this order may be taken.  Section 6(2) of the Act, whose object is to echo s 9(2) of the Constitution, is quite explicit that affirmative action measures are not unfair.” (footnotes omitted)

The principle that qualifying restitution measures to achieve substantive equality are not a diminution of the right to equality, was already established by the Constitutional Court in Minister of Finance & another v Van Heerden.

. . . . .

[17]    Like the matter before me, the complaint in the Correctional Services case was not that the employer had refused to deviate from the plan in particular instances, which was the underlying factual issue in Barnard, but that the equity plan itself made provision for transfers or promotions with reference to quotas strictly reflecting the national demographic representation of race and sex in the population.

. . . . . .

[25]    Although it was hoped that the decision in Barnard would clarify some of the issues important to this judgment because the focus of the Constitutional court was on the administrative review of the Commissioner’s specific decision not to appoint Captain Barnard to an advertised post, it shed little new light on the more difficult aspects of evaluating equity plans as such.  The LAC decision in Correctional Services is more useful in relation to the critical aspect of the applicant’s case, namely whether the plan erects barriers to the employment of persons from non-disadvantaged groups amounting to quotas. 

. . . . .

Evaluation

Compliance with the right to equality

[49]    There seems to be no dispute that the plan clearly satisfies the first two legs of the constitutional test that a remedial measure must meet to qualify under s9(2) of the Constitution, as laid down in Van Heerden. 

The only issue is whether it also met the third leg, namely whether the plan promoted the achievement of equality.  The LAC identified this as the most difficult part of the test, which entails determining if the plan does not impose disproportionate burdens or constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits, that our long-term constitutional goal would be threatened.  In Correctional Services the equity plan under consideration did satisfy the third requirement because of the existence of a deviation policy in the equity plan.

[50]    The third leg of the test is intimately bound up with the discussion of a deviation policy, which is dealt with below.  

Compliance of the plan with the EEA

The reliance on national demographic targets

[51]    It is clear from the provisions of section 42(a)(i) of the EEA and the regulations discussed that the intention of the EEA was that the comparator against which underrepresentation would be measured should be the ‘relevant’ national and provincial economically active population.  The first point to note is that it is perfectly legitimate to have regard to national demographics in terms of the EEA and s 195 of the Constitution, but it is not sufficient to simply rely on national census figures of the general population for the purposes of the EEA. 

Rather, it is the economically active portion of the population against which the composition of the workforce must be compared.  In so far as it is the economically active population that is under consideration, both the national and regional economically active population figures must be considered in terms of s 42(1)(a)(i).  Plainly, in relying only on the national population census estimates, SAPS plan did not consider either of these standards in identifying the numerical targets in its plan.  At least in these respects, the plan does not comply with the EEA.

. . . . . .

[62]    In this instance, unlike in the Correctional Services matter there is no provision in the SAPS plan setting out the circumstances in which a deviation from the plan would be acceptable.  Any member of SAPS management dealing with appointments or promotions would find no guidance in the plan as to when, or on what basis, it would be acceptable to make recommendations or decisions on employment or promotion that did not advance the numerical representation goals of the plan, and which also would not negatively affect their own performance assessment or possibly result in disciplinary action being taken against them.  The National Commissioner claims in her answering affidavit that the plan does not make race or gender decisive considerations in appointments and promotions, but  “… simply introduces them among the many factors to be taken into account when making employment decisions.”  

However, none of the provisions of the plan indicate when any of those other factors might legitimately permit  an appointment or promotion to be made which does not advance the pursuit of the numerical goals.  On the wording of the plan itself, it does not cater for exceptions. 

. . . . . .

[64]    Labelling a target ‘realistic’ does not in and of itself mean it is flexible when it comes to making a decision.  What is lacking in the plan is a provision that tells decision makers under what circumstances the pursuit of the targets can yield to other considerations when recommending or making an appointment.  

. . . . .

[68]    In this instance, though I am satisfied that, in conception, the numeric targets amount to quotas, the factual position does show the plan was not followed to the letter and that in practice, other factors did play a role in determining appointments.  In short, the plan itself was defective as a remedial measure in terms of s 9(2) of the constitution and did not satisfy all the requirements of the EEA, but was flexibly implemented despite the absence of provision for flexibility in the plan itself.