2 September 2014 marked the tipping point in South Africa's transformation trajectory. The Constitutional Court Justices unanimously (albeit seemingly to varying degrees of conviction) declared that Affirmative Action is NOT unfair.
It is also fitting that this seminal judgment should come at the dawn of the Spring season. Indeed, the Constitutional Court has finally breathed much needed life into what has hitherto been a floundering transformation project, curiously (and perhaps unwittingly) arrested by the seeming lack of political will by those who should be at the fore front of this necessary project.It is my sincere hope that the Constitutional Court's judgment in SAPS v Solidarity obo Barnard marks the turning of the tide in at least one aspect of the transformation debate. Preferential Procurement should be the next battle ground.
I reproduce hereunder my heads of argument in that Affirmative Action case in the hope that those who argue emotionally against this constitutional restitutionary measure may better understand the relevant considerations. The heads deal with what I consider to be the primary bases for Solidarity's attack.
IN THE
CONSTITUTIONAL COURT OF SOUTH AFRICA, BRAAMFONTEIN
CC CASE NUMBER:
01/2014
SCA CASE
NUMBER: 165/2013
In
the application of:
SOUTH AFRICAN POLICE SERVICE Applicant
and
SOLIDARITY
on behalf of BARNARD, R M Respondent
POLICE
AND PRISONS CIVIL RIGHTS UNION Amicus Curiae
WRITTEN
SUBMISSIONS ON BEHALF OF THE AMICUS
CURIAE
_____________________________________________________________________
A Introduction
1
The
Supreme Court of Appeal’s conception of what this Court terms “restitutionary measures”[1]
under the Employment Equity Act, 55 of 1998 (“the EEA”) is gravely mistaken.
2
The
respondent’s (“Solidarity”) self-serving
snatching at that bargain is tragic for the development of our equality
jurisprudence. This manifests in the
rather loose recourse to such emotive concepts as “quotas”, “gender and race
norming”, “race and gender
profiling” and “social engineering”. None of them are an accurate characterisation
of the restitutionary measures that the South African Police Service (“SAPS”) adopts through its employment
equity plan.
3
In
any event “gender and race norming”
and “race and gender profiling” are
concepts of American extraction. This
Court has cautioned against the importation of foreign concepts into our
equality jurisprudence. It said
“Our equality jurisprudence differs substantively
from the US approach to equality. Our
respective histories, social context and constitutional design differ markedly…
. We must therefore exercise great caution not
to import … inapt foreign equality jurisprudence which may inflict on our
nascent equality jurisprudence American notions of ‘suspect categories of State
action’, and of ‘strict scrutiny’.”[2]
4
Solidarity,
seeking to exploit the nation’s aversion to race and gender exclusionary
policies of our recent past by tugging at emotional strings in that regard,
does exactly that. This stratagem (which
drew the desired reaction from the Supreme Court of Appeal when it observed: “Dealing with race classifications, as is necessary
under the EEA, feels almost like a throw back to the grand apartheid design”[3]) is demonstrated by
Solidarity’s argument, invoking an inapposite Canadian Supreme Court dictum, that
“Reliance on race-norming and the use of quotas to justify the
non-appointment of the most appropriate candidate in the circumstances, cannot
be tolerated, because it amounts to ‘stereotypical reasoning and the
creation of legal distinctions which violate the dignity and freedom of the
individual, on the basis of some preconceived perception about the attributed
characteristics of a group rather than the true capacity, worth or
circumstances of the individual’.”[4]
(emphasis supplied)
5
Five
observations must be made in this regard:
5.1 The first is that the Canadian Supreme
Court was in that case dealing with the exclusion of unmarried partners
from accident benefits available to married partners. By contrast, the case before this Court does
not concern exclusion. It
concerns preferential treatment or restitutionary measures
intended for the achievement of equality in an employment setting. At the relevant period (2005 and 2006) there
were 8 white males and 6 white females at levels 9 and 10 of the National
Evaluation Services (“the NES”).[5] There was no SAPS policy of removing those
employees and replacing them with members from another group, and Solidarity
has not alleged otherwise.
5.2 The second observation is that references
by Solidarity to “stereotypical
reasoning” and “preconceived
perception about the attributed characteristics of a group” shows clearly
that its attack is aimed at perceived exclusion (of Barnard) on a specified
ground (race). The case before this
Court concerns neither. It concerns
restitutionary measures on grounds of over-representation or
under-representation at a specific post and salary level.
5.3 Thirdly, it is not clear what “preconceived perception about the
attributed characteristics of a group” Solidarity is referring to, and what
relevance this has to this case. This
case has never been argued on the basis of perceptions of the characteristics peculiar
to one group in comparison with those peculiar to another. Over-representation at a particular post and
salary level cuts both ways. While white
females as a group are over-represented at level 9 of the NES, African females as
a group are also over-represented at level 3.[6]
That is why there was no post allocation
in 2006 for African females (as a group) at level 3 and none for white females
(as a group) at level 9.[7]
5.4 Fourthly, the judgment of Justice O’Regan
through which Solidarity seeks to import American jurisprudence into our
equality jurisprudence is a minority judgment.
5.5 Fifthly, the excerpt of Justice O’Regan’s
judgment cited by Solidarity occurs at paragraph [93] not [92] as it mistakenly
claims.
6
The
misplaced importation of these American concepts into our equality jurisprudence
notwithstanding, we shall nevertheless show that the SAPS adoption of “numerical goals” is not an exercise in
“gender and race norming” or “social engineering” or “quotas” or “race and gender profiling” as Solidarity contends.
B Supplementary Record
7
As
the Supreme Court of Appeal said at paragraph [80] of its judgment, “the facts in this case determine the
outcome”. It is for that reason that
POPCRU contends that the full facts (including those that may not have been
included by either party in the record filed by them) must be placed before
this Court.
8
POPCRU
will seek to rely on some of the evidence that was given in the Labour Court in
order to show that the discrimination against Barnard was occasioned not
by race but by over-representation, and was in any event not unfair.[8] For that same purpose, POPCRU will seek to
rely also on some of SAPS documents that formed part of the record in the
Labour Appeal Court but have not been included by the parties in the main
record.
9
The
supplementary record that POPCRU proposes comprises only 10 pages. [9] POPCRU submits that it is in the interests of
justice to allow the filing of this short supplementary record, and for that
reason applies that the 10 pages be allowed into the record.
10
Neither
of the parties opposes the application to supplement the record as
proposed. The application was served on
them on Thursday 6 March 2014.
SAPS served its written submissions on 7 March 2014 and Solidarity its
written argument on 14 March 2014. Neither
party raises objection to the supplementation of the record in the manner
proposed by POPCRU.
C POPCRU’s LEGAL SUBMISSIONS
11
Solidarity’s
argument hinges precariously on two fundamental misconceptions on the facts of
this case. Both are fatal.
11.1 The first misconception is that the regime
of the SAPS employment equity plan “is
one of naked gender and race norming, no more and no less”.[10]
11.2
The
second is that Barnard was discriminated against on grounds of race.[11] The Supreme Court of Appeal makes the same
mistake.[12]
12
We
make three submissions of law.
12.1
The
first submission is that SAPS numerical goals do not constitute “quotas” or “gender and race norming” or “gender
and race profiling” or “social
engineering” as Solidarity contends.
12.2
The
second submission is that Barnard was discriminated against but not on
grounds of race or gender. The basis for
the discrimination against her was that she belongs to a category that is
over-represented in numerical terms at level 9 in circumstances where
the EEA, by constitutional mandate under s 9(2) of the Constitution of the
Republic of South Africa, 1996 (“the
Constitution”), seeks to achieve equity in the workplace by ensuring “equitable representation [of designated
groups] in all occupational categories and levels in the workforce”.[13] Because the basis for discrimination in this
case was over-representation in numerical terms, Barnard bears the onus
to show that she has been subjected to unfair discrimination. In the circumstances, the finding of the
Supreme Court of Appeal in favour of Solidarity on the basis that SAPS failed
to discharge an onus it did not have in law, constitutes a misdirection in law.
12.3
The
third submission, which is an alternative to the second, is that because
Solidarity concedes that “race
and gender are legitimate touchstones of employment equity”,[14]
the fact that the numerical goals of the SAPS employment equity plan are
informed by race and gender considerations is not in itself an affront to s
9(3) of the Constitution and s 6(1) of the EEA.
That means even if this Court should find that discrimination in this
case is grounded on race, and that SAPS bears the onus to show that the
discrimination is not unfair, considerations of race cannot by
themselves render the SAPS restitutionary measures inconsistent with s 6(1) of
the EEA and s 9(3) of the Constitution.
12.4
We
also submit that there is simply no merit in the suggestion that race was the only
consideration in this case. That
suggestion does not stand up to the evidence on record as we shall show.
(a)
First Submission: “Quotas”, “race
and gender norming”, “race and gender profiling” and “social engineering”
13
Solidarity
defines “quotas” as “a numerical norm by reference to which a
candidate succeeds or fails irrespective of merit”[15]. It does so not in abstract terms but within
what it terms the “context”
of this case.
14
On
Solidarity’s own definition of “quotas”,
the SAPS numerical goals do not constitute quotas. We say so for the following reasons and with
reference to the record. Barnard’s own
evidence in the Labour Court (which forms part of the proposed supplementary
record) demonstrates that she does not believe that the SAPS restitutionary
measures amount to “a numerical norm by
reference to which a candidate succeeds or fails irrespective of merit”.
14.1
Asked
whether she was disputing that Captain Mogadima[16]
(an African male) was a “suitably
qualified candidate” to fill the same post for which she was in contention,
Barnard’s response was: “He was indeed a
suitable candidate …[and has in fact] been appointed and promoted to the level
of superintendent”.[17]
14.2
Like
Barnard (85.33%) on the same assessment, Mogadima (78%) had obtained “above average” scores for
14.2.1
“competence based on the
inherent requirements of the job” (80%),
14.2.2
“prior learning training and
development”
(74%) and
14.3
Her
response was to similar effect in respect of Captain Ledwaba (an African male) who
was recommended as a third candidate after Mogadima. She said Ledwaba was a suitable candidate “according to the panel”.[19] Ledwaba, too, had obtained “above average” (74.6%) scores for
14.3.1
“competence based on the
inherent requirements of the job” (78%),
14.3.2
“prior learning training and
development”
(70%) and
14.4
Burger,
who chaired the panel that recommended Barnard as a first candidate and gave
evidence on her behalf at the Labour Court, confirmed that the appointment of
either Mogadima or Ledwaba would not have compromised service delivery. In other words, their appointment would have
been on merits.
14.5
Asked
whether it was the panel’s view “that if
the second recommended candidate Mogadima is appointed the service delivery
would not be enhanced”, Burger’s response was: “No M’Lord”.[21]
14.6
Asked
whether “service delivery [was] going to
be compromised if Ledwaba were appointed, according to the panel”, Burger
said: “No, it would not be compromised”.[22]
15
From
this evidence it is clear that the SAPS restitutionary measures do not fit
Solidarity’s definition of “quotas”. Merit does indeed count in the SAPS numerical
norm.
16
In
any event, Barnard’s own evidence is an admission that the SAPS employment
equity plan and its implementation seeks to “ensure the equitable representation of suitably qualified people
from designated groups” as s 15(2)(d)(i) of the EEA requires.
17
As
regards the other emotive concepts of “gender
and race norming”, “gender and race
profiling” employed by Solidarity we make the following submissions:
17.1
This
is a mischaracterisation of the SAPS employment equity plan. The American concept of “race or gender norming” (otherwise known as “within group norming”) has been defined as “the
process of statistically adjusting the scores of minority job applicants on job
qualification tests by rating each test taker’s score against the results of
others in his or her racial or ethnic [or gender] group”.[23]
17.2
In
the United States, an illustration of “race
norming” has been said to be
“a system in which a white
man gets a score of eighty on a test, an Hispanic gets a score of seventy and a
Negro a sixty, but after “Norming”, the white man has the lowest score and the
Negro the highest, so he gets the job.”[24]
17.3
“Gender
norming” has been defined in the United States as
“translat[ing] into a man having to
carry fifty pounds to qualify for the job, while a woman only needs to carry
twenty-five.”[25]
17.4
In
1991, opponents of affirmative action lobbied successfully to remove the
practice of “gender and race norming”
in the workplace by triggering the amendment of s 703 of the US Civil Rights
Act, 1964 (dealing with “Unlawful
Employment Practices”), by the inclusion of the following provision through
s 106 of the Civil Rights Act, 1991:
“(l) Prohibition of discriminatory use
of scores
It shall be an unlawful
employment practice for a respondent, in connection with the selection or
referral of applicants or candidates for employment or promotion, to adjust the
scores of, use different cutoff scores for, or otherwise alter the results of,
employment related tests on the basis of race, color, religion, sex, or
national origin.”
17.5
There
has been no suggestion in this case that the scores of Mogadima or Ledwaba or
Barnard herself were adjusted in order to favour Mogadima or Ledwaba or to
prejudice Barnard. None of this has
occurred in this case. Nowhere is any of
it alleged by Solidarity or Barnard, much less established. When regard is had both to the text of the
SAPS employment equity plan and to its practical implementation according to
the evidence of both Burger and Barnard herself, the exercise in which SAPS
employees engage when considering appointments hardly qualifies as “race norming” or “gender norming”.
17.6
In
any event, even the United States Supreme Court which places the kind of
strictures on affirmative action frowned upon by this Court,[26]
has approved of the sort of remedial or restitutionary measure with which we
are concerned here. In Johnson v Transportation Agency[27]
the Transportation Agency of Santa Clara County, California created an affirmative action plan to bring about fair
representation in its work force of women, minorities, and disabled people. The plan was intended to achieve a statistically measurable annual
improvement in hiring and promoting minorities and women in job classifications
where they were under-represented, and the long-term goal was to attain a
workforce whose composition reflects the proportion of minorities and women in
the area workforce.
17.7
The agency gave notice of a vacancy for the job of road
dispatcher. This was a craft-worker
position, a high-level and skilled job category. None of the 238 jobs in the agency’s craft-worker
category was held by a woman. Paul
Johnson and Diana Joyce were the leading candidates, among 12
applicants, for the vacant position. The
interviewers rated both Johnson (a male) and Joyce (a female) as well qualified. Johnson had obtained a higher job interview
score than Joyce, and so the selection panel recommended him for the position. Nevertheless, Joyce got the job.
17.8
Johnson complained
under the Federal Civil Rights Act of 1964. He claimed that he was denied the job because
of his gender as a male. The US Supreme Court upheld the agency’s
affirmative action plan. Justice William
Brennan (writing for the majority) found nothing wrong under Title VII of the
1964 Civil Rights Act to remedy imbalances of female and male representation in
a skilled job category. This affirmative
action plan was legal, Justice Brennan wrote, because it merely set goals but did not
establish quotas for hiring female employees. He found further that the plan recognized
gender as only one of several factors in decisions about hiring and promotion. He found that the plan was acceptable because
it was only a temporary means to overcome past discrimination against workers
based on gender.
17.9
Johnson’s case is
about alleged gender discrimination. In
another case dealing with alleged race discrimination, United
Steelworkers v Weber
[28],
the US Supreme Court upheld an employer affirmative action program that
reserved 50% of the openings in a training programme for black craft
workers. The court pointed out that the plan did
not thereby unnecessarily trammel the interests of the white employees. The plan did not require the discharge of
white workers and their replacement with new black workers. Nor did the plan create an absolute bar to the
advancement of white employees as half of those trained in the program would be
white. Moreover, the plan was a
temporary measure and was not intended to maintain racial balance but simply to
eliminate a manifest racial imbalance. The
court held that preferential selection of craft trainees at the Gramercy plant
would end as soon as the percentage of black skilled craft workers in the
Gramercy plant approximates the percentage of blacks in the local labour force.
17.10 In that case the adoption of the plan had
been prompted by the fact that only 5 of 273 (or 1.83%) of skilled craftworkers
at the plant were black, even though the workforce in the area was
approximately 39% black. Because of the
historical exclusion of blacks from craft positions, the employer had regarded
its former policy of hiring trained outsiders as inadequate to redress the
imbalance in its workforce.
17.11 The US Supreme Court upheld the employer’s
decision to select less senior black applicants over their white
counterparts. It found that taking race
into account was consistent with the Civil Rights Act objective of “break[ing] down old patterns of racial
segregation and hierarchy.” It observed
that “[i]t would be ironic indeed if a
law triggered by a Nation’s concern over centuries of racial injustice and
intended to improve the lot of those who had “been excluded from the American
dream for so long” constituted the first legislative prohibition of all
voluntary, private, race-conscious efforts to abolish traditional patterns of
racial segregation and hierarchy”.
17.12 That neither of the African
males (Mogadima and Ledwaba) recommended as second and third candidates after
Barnard was appointed to that specific post in fact debunks Solidarity’s
emotive charges of “race and gender
norming” and “quotas”. On Barnard’s own evidence in the Labour Court
on 18 November 2009, there seems nothing strange about the fact that they were
not appointed. She says they had both been
appointed to that level[29]
(Superintendent, albeit not in that same post).
So, it is reasonably possible that the reason for their non-appointment
may have been that they preferred to go elsewhere, as indeed they appear to
have done on Barnard’s evidence in the Labour Court.
17.13 The Supreme Court of Appeal’s
conjectural finding that the reason for their non-appointment must have been
that the SAPS Commissioner did not regard them as suitable[30]
is not consistent with Barnard’s own evidence in the Labour Court when she said
they were both suitable candidates[31],
and that they had in any event both been promoted to the level of
Superintendent elsewhere[32]. It also does not square with the objective
evidence of their evaluation scores,[33]
which are (like Barnard’s) “above
average”, and which no-one has challenged.
17.14 The concept of “race and gender profiling” is not far
removed from “gender norming”. It connotes taking into consideration the physical
characteristics or shortcomings ostensibly peculiar to a disadvantaged
race or gender for purposes of advancement or appointment in the workplace in
preference to the race or gender with ostensibly “superior” physical
characteristics. This case has nothing
to do with that. It has never been
suggested by any party, including Solidarity and Barnard.
18
The
charge of “social engineering” is
reminiscent of the “grand apartheid
design” of which the Supreme Court of Appeal writes at para [80] of its
judgment. It is, as we understand it, a
mechanism aimed at socialising people in a particular pre-determined way. Examples include
18.1
the
criminalisation of inter-racial marriages, thus socialising people to marry
intra-racially;
18.2
the
criminalisation of the sharing of ablution facilities by people of different
races, thus socialising people to relieve themselves only in the company of their
own race;
18.3
the
prohibition, by force of law, of inter-racial coital acts, thus socialising
people to have sex only with members of their own race;
18.4
the
prohibition of the sharing of public transport by people of different races,
thus socialising people to commute only with those of their own race.
19
That
is the sort of thing that “social
engineering” entails. A measure that
aims to achieve equity in the workplace by ensuring “the equitable representation of suitably qualified people from
designated groups” of all races, including white females, hardly
qualifies as “a throwback to the grand
apartheid design”. In fact the
comparison is deeply offensive to the many men and women of all races
who either lost their lives or sacrificed many years they could have spent with
their families (or in some instances both), so that the constitutional design
of equality can ultimately be achieved.
There is no “social engineering”.
20
For
all these reasons, Solidarity’s mischaracterisation of the SAPS restitutionary
measures ought to be dismissed out of hand.
(b)
Second Submission: The basis
for Discrimination and the instance of onus
21
SAPS
now deals with this aspect at some length in its written submissions.[34] It contends, as we understand its argument,
that where the basis for discrimination is restitutionary measures as
contemplated in the EEA, even when this implicates factors such as race and
gender (or any of the specified grounds), then the analysis falls to be done
under s 9(2) of the Constitution and not s 9(3) and s 9(5) thereof. As a result, SAPS argues, it is not
SAPS that bears the onus (pursuant to s 9(5) of the Constitution) to show that
discrimination occasioned by restitutionary measures is not unfair; it
is rather the party alleging discrimination (Solidarity and Barnard) that must
prove unfair discrimination.[35]
22
We
reach the same conclusion by a different route.
Our contention is that the basis for discrimination against Barnard on
the facts of this case was not race or gender or any of the specified
grounds in s 9(3) of the Constitution or s 6(1) of the EEA. We submit that the basis for discrimination
in this case was over-representation.
That Barnard happens to be white and female is merely co-incidental.
23
In
order to test this proposition one needs stray no farther than (1) the reasons
advanced by the SAPS Commissioner[36]
and (2) the representivity figures at the relevant period[37].
23.1
The
first reason advanced by the SAPS Commissioner is that the panel’s recommendation
would “not address representivity”. He did not say a white female can never be
appointed to that post because that would not address representivity. That it happens to be white females who are
over-represented at that level does not logically lead to the conclusion that
the basis for the SAPS Commissioner’s rejection of Barnard’s appointment is her
race and gender. This is illustrated by
the second factor that should be considered in testing our proposition.
23.2
The
second factor is this: like white females at level 9 of the NES, African
females in 2006 were over-represented at level 3 of the NES.[38] They were over-represented by 3. Like white females at level 9 of the NES,
that is why no posts were allocated for African females at level 3 of the NES
in 2006.[39] If no African female was appointed at that
level that would not constitute discrimination on grounds of race and gender
because the basis for discrimination would have been over-representation not
race or gender. The appointment of an
African female to level 3 of the NES in 2006 (just as the appointment of a
white female to level 9 of the NES) would also not have addressed
representivity. The fact that those
over-represented at level 3 happened to be African females would merely be co-incidental.
24
Thus,
the Supreme Court of Appeal is quite mistaken when it begins its analysis on
the premise that the respondent was discriminated against because of her race.[40] After all, white females fall under a
category of “designated group” to be
preferred in the implementation of restitutionary measures, just as much as are
black people in the generic sense. The
ultimate object of the EEA (taking its mandate from s 9(2) of the Constitution)
is to ensure “equitable
representation” of designated groups in all occupational categories and
levels in the workforce.
25
Thus,
the true and real basis for discriminating against Barnard (in much the
same way that African females at level 3 are discriminated against by not being
allocated a post at that level) is that she is a member of a “designated group” that is over-represented
at level 9 of the NES in the SAPS. Equitable
representation of all designated groups (including white females) would be
a pipe dream if people of an already over-represented designated group
at a particular occupational category and level were appointed at that category
and level. That the designated group in
question happens to be white females is co-incidental. A black female would have suffered the same
fate if black females were over-represented at that level.[41] This has never been in dispute.
26
The
significance of this point is that Barnard was not discriminated against on any
one of the grounds specified in section 9(3) of the Constitution. That being so, the onus does not rest on the
SAPS to prove that the discrimination is not unfair. It rests on the respondent to show that as a
member of an over-represented designated group she has been unfairly
discriminated against. There is no
reason to suppose that an African female who would challenge a failure to
appoint her at level 3 would not suffer the same fate because the basis for
such discrimination would not be her gender or race but over-representation.
27
The
finding of the Supreme Court of Appeal at paragraph [55] of its judgment that
it is SAPS that bears onus to prove the fairness of discriminating against
Barnard is thus a material factual and legal misdirection. A material misdirection of this sort is
sufficient ground for the setting aside of the judgment of the Supreme Court of
Appeal.[42] It is clear that the Supreme Court of Appeal
made its findings based on the mistaken view that SAPS bore the onus.[43] This is a material misdirection which no
reasonable Court would countenance.[44]
(c)
Third Submission: Effect of Solidarity’s
Concession that Race and Gender are Legitimate Factors
28
Solidarity
concedes that race and gender are “legitimate
touchstones of employment equity”.[45] Thus, even if this Court were to find that
the basis for discrimination against Barnard was her race and/or gender, that
fact would not render the discrimination automatically unfair
thus triggering a burden on the SAPS to prove it was not unfair. In short, on Solidarity’s own argument s 9(3)
and s 9(5) of the Constitution are not triggered here. We are in s 9(2) territory.
29
This
concession, in our respectful submission, effectively rips the gut out of the
entire judgment of the Supreme Court of Appeal the firm premise of which is
this: SAPS bears the onus to show the discrimination was not unfair; it failed
to show this; therefore the discrimination was unfair.[46] It acknowledges taking into consideration
race and gender in the implementation of restitutionary measures envisaged by
the EEA is a legitimate and constitutional endeavour. Such a concession does not sit comfortably
with the approach that the Supreme Court of Appeal took in this case. In this regard, the following excerpt from
the SCA judgment is instructive:
“In the present
case, having regard to all the circumstances and bearing in mind the onus that
rests on the SAPS, and for all the reasons set out earlier, it cannot in my
view be concluded that it has been established by the SAPS that the
discrimination complained of was fair.”[47]
30
But
the point of the concession is clearly that considerations of race and gender
in the employment equity context cannot give rise to automatic unfairness that
would saddle the SAPS with the onus to prove fairness. For that reason, the entire edifice of the
judgment of the Supreme Court of Appeal crumbles under the weight of
Solidarity’s concession.
31
But
then Solidarity immediately seems unsure of the position it wishes to advance
in this regard because, having made this weighty concession in paragraph 61, it
then seems to add three caveats in the next two paragraph. In our submission, the caveats do not detract
from the weight of the concession.
31.1
The
first caveat is that the EEA “does not
sanction race and gender profiling that seeks to create a demographically
representative workforce without regard to past discrimination”[48].
31.2
The
second caveat is that the “practical
effect” of the SAPS race and gender based model of restitution which is “aimed at the future” and not the past,
is that “preference is given to white
males” who are “manifestly not the
victims of past discrimination”[49].
31.3
The
third is that the redress of past discrimination that is envisaged by the EEA
targets individuals and not groups.[50]
32
As
regards the first caveat we made two submissions:
32.1
First,
in this case there is no evidence of “race
and gender profiling” as we understand the concept. We repeat the submissions we make in this
regard above in relation to this concept, “race
and gender norming” and “quotas”.
32.2
Second,
if a “demographically representative
workforce” is not to be the standard in an endeavour to redress past race
and gender discrimination in the workforce, it is difficult to imagine by what
other practical means Solidarity considers that race and gender may, as “legitimate touchstones of employment
equity”, be brought to bear on the constitutional imperative of “ensuring … equitable representation [of
designated groups] in all occupational categories and levels in the workforce”.
32.3
The
impression one gets is that Solidarity is content more with ostensibly
conciliatory platitudes in matters of restitutionary justice (hence the
concession) than with the harsh realities that restitution, by design, must
bring to bear on the previously advantaged.
As this Court has observed in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others[51],
“The measures
that bring about transformation will inevitably affect some members of the
society adversely, particularly those coming from the previously advantaged
communities”.
32.4
This
seems to be the harsh reality that Solidarity is not prepared to countenance.
33
The
second caveat with respect seems to lack all logic. While it is not clear how the practical
effect of the SAPS restitutionary measures is to give preference to white males
who are “manifestly not the victims of
past discrimination” (a proposition never before advanced by Solidarity),
it appears that for Solidarity the SAPS model will be true to its form only
when white males are immediately excluded from serving in the SAPS because
their inclusion, so seems the argument, does not square with the object of
redressing past discrimination in the workforce. If that is Solidarity’s argument as regards
white males, then it clearly does not understand what the “equitable representation” fuss is all about. This “all or nothing” approach is
unfortunate.
34
The
third caveat is addressed by SAPS in its written submissions[52]
and so we do not add to those submissions.
Suffice to say that Solidarity’s is a philosophical argument of which
Adam Smith would have been proud.[53]
35
In
the circumstances, Solidarity’s weighty concession disposes of the entire
judgment of the Supreme Court of Appeal.
The gloss that Solidarity seeks to put on that concession does not
detract from that effect.
D POPCRU’s MISCELLANEAOUS SUBMISSIONS
ON SCA FINDINGS
36
We
now address some of the glaring misdirections of the Supreme Court of Appeal.
36.1
Firstly, the Supreme Court of Appeal
criticises the SAPS for giving more weight to equitable representation than to
service delivery and competence. It
says:
“Failure to
appoint Barnard to a position which, in terms of the regulatory constitutional
and statutory framework must have been necessary leads ineluctably to the
conclusion that service delivery must have been affected.”
36.2
This
is both a factual and legal misdirection.
It is material. In her evidence, Barnard
could not point to any specific instance that service delivery had been
compromised by her non-appointment. On
the contrary, the chairperson of the panel that recommended her (Burger)
conceded that service delivery would not have been compromised if the promotion
was given to either of the other two black candidates.[54]
There is also no evidence that the
failure to appoint anyone resulted in service delivery being compromised.
36.3
Secondly, the Supreme Court of Appeal
adopted the wrong standard in asserting, as the Labour Court had done, that the
need for equitable representation in the workplace as required by the EEA “must be weighed up against the affected
individual’s rights to equality and a fair decision made”.[55]
In so asserting the Supreme Court of
Appeal with respect inverts the constitutional standard. In this regard, we make the following
submissions:
36.3.1
The
starting point is that everyone has a right to equal protection and benefit of
the law in terms of s 9(2) of the Constitution.
36.3.2
The
pursuit of “equitable representation”
in the workplace is a limitation measure of that right with a view to achieving
equality. In other words, “equitable representation” of designated
groups under the EEA is a measure by which the right to equality is justifiably
limited with a view to addressing the effects of unfair discrimination
of the past.
36.3.3
One
such effect is that white females are over-represented at salary
level 9 of the NES within SAPS, while Africa men and women are under-represented
at that level, although African females are over-represented at salary level 3
of the NES.
36.3.4
It
is wrong to suggest in these circumstances that the general right to
equality must trump the very constitutional measure by which that general right
is justifiably and constitutionally limited. It is the general right to equality that must
be weighed up against equitable representation in the workforce, not the
reverse.
36.3.5
That
done, it is clear that Barnard’s right to equality cannot validly and
constitutionally trump the constitutional injunction of redressing past
imbalances in the workplace that had been caused by unfair race and gender
discrimination.
36.3.6
Employment
equity plans are the law as
envisaged ultimately by the Constitution under section 9(2). They are a measure by which chapter 2 rights
are constitutionally limited with a view to achieving equitable representation
in the workforce.
36.4
Thirdly, the Supreme Court of Appeal
is quite mistaken, with respect, when it says, echoing the Labour Court, “where a post cannot be filled by an
applicant from an under-represented category because a suitable candidate from
that category cannot be found, promotion to that post should not ordinarily and
in the absence of a clear and satisfactory explanation be denied to a suitable
candidate from another group”.[56]
In so finding, the Court, with respect,
misconstrues the proper implementation of the constitutional standard in
general, and the basic premise of employment equity policy in particular.
36.4.1
First,
the employment equity plan itself constitutes “a clear and satisfactory explanation” for not appointing Barnard. That explanation is that she belongs to a designated
group that is over-represented at salary level 9 of the NES.
36.4.2
Second,
the Supreme Court of Appeal committed a material factual misdirection
when it says there were no suitable candidates from the under-represented
category. This is a basis for setting
aside a judgment of a lower Court. [57] Both Barnard[58]
and the chairperson of the panel that recommended her[59]
confirmed that Captain Ledwaba and Captain Mogadima were suitable candidates. After all, both had been recommended as
suitable candidates by the same panel that recommended Barnard and both were
from the under-represented category of “African males”. Barnard even went further to say they were
both subsequently promoted to the level of Superintendents (salary level 9)[60].
36.4.3
Third,
in any event the unavailability of a suitable candidate from the
under-represented designated group (which is not the case on the facts of this
case) does not necessitate the appointment of a candidate from the
over-represented designation group. Barnard
has herself conceded that the National Commissioner has a discretion in this
regard on authority of the National Instruction 1 of 2004[61]. The chairperson of the panel that recommended
her has also admitted this[62].
36.5
Fourthly, the Supreme Court of Appeal
considers that Barnard’s promotion to salary level 9 of the NES would have
improved equitable representation at level 8 of the NES.[63]
This is a quite irrelevant
consideration. The EEA requires
equitable representation “in all
occupational categories and levels”. The approach of the Supreme Court of Appeal in
this regard seems to suggest that equitable representation of black employees
at lower levels justifies the over-representation of white females at more
senior positions. This is wrong with
respect. It might even be considered as,
to quote the SCA, a “throwback to the grand
apartheid design”. Level 9 is the
only relevant occupational category and level for purposes of this case. Moreover, this consideration by the Court does
not take into account that Barnard’s appointment at level 9 would exacerbate
the over-representation of white females at that level, as the chairperson of
the panel that recommended her readily concedes.[64]
E Conclusion
37
In
the result, we submit that there is sufficient material on which
37.1
to
grant the application for leave to appeal;
37.2
to
grant POPCRU’s application to supplement the record with 10 pages; and
37.3
to
set aside the judgment of the Supreme Court of Appeal.
V NGALWANA
F KARACHI
Counsel for the Amicus Curiae
DUMA NOKWE
GROUP OF ADVOCATES
Chambers, Sandton
17 March 2014
[1] Minister of Finance and Another v Van Heerden 2004 (6) SA 121 (CC);
National Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others 1999 (1) SA 6 (CC)
[2] Minister of Finance and Another v Van Heerden 2004 (6) SA 121 (CC) at
para [29], 135F-H
[3] SCA Judgment at para [80]; record
77/80
[4] Solidarity’s written argument,
para 74
[5] See record 35/34
[6] See record 222.
[7] See supplementary record 318A.
[8] As POPCRU contends in its
application to be admitted as amicus
curiae (at paras 20 & 21 of the supporting affidavit), it is Solidarity
that bears the onus to establish that Barnard was unfairly discriminated
against
[9] In this regard we note that
supplementary record page 318H is already in record page 249. We also do not rely on the following pages of
the proposed supplementary record in these written submissions: 318B, 318C,
318D, 318I, 318M, 318O, 318P and 318Q.
This means the proposed supplementary record now comprises 10 pages
which we annex for ease of reference.
They are 318A, 318E, 318F, 318G, 318J, 318K, 318L, 318N, 318R and 318S.
[10] Solidarity’s written argument, para
36.2. See also paras 19, 62, 64, 68, 71,
74
[11] Solidarity’s written argument, paras
11, 12, 28, 31.
[12] SCA Judgment paras [28] & [55];
record 33/28 & 68/55
[13] s 2 of the EEA
[14] Solidarity’s written argument, paras
13 & 61
[15] Solidarity’s written argument, para
64
[16] Capt Mogadima obtained a score of
78% and was recommended second to Barnard (who scored 85.33%). Both had scored “above average”
[17] Supplementary record, 318S/2-22
& 318R/16-17
[18] Supplementary record, 318F
[19] Supplementary record, 318R/18-19
[20] Supplementary record, 318E
[21] Supplementary record, 318G/6-8
[22] Supplementary record, 318G/18-20
[24] Deceived: Corrupt Leadership and
the American Empire, Marlin Creasote,
books.google.co.za/books?isbn=0971093806, at chapter 1 page 5
[25] Ibid.
[26] Minister
of Finance and Another v Van Heerden 2004 (6) SA 121 (CC) at para [29]
[27] 480 U.S. 616 (1987)
[28] 443 U.S. 193
(1979)
[29] Supplementary record, 318S
[30] SCA Judgment para [66]; record 72/66
[31] Supplementary record 318S/2-22 &
318R/16-19
[32] Supplementary record, 318S/19-22
[33] Supplementary record, 318E &
318F
[34] SAPS written submissions, paras
55-68
[35] SAPS written submissions, paras 55
& 56
[36] Record at 238
[37] Record at 222
[38] Record at 222
[39] Supplementary record, 318A
[40] SCA Judgment paras [52] & [55];
record 67/52 & 68/55
[41] In fact, they do at level 3 of the
NES
[42] Bertha and Others v BTR Sarmcol 1998 (3) SA 349 (SCA) at 370F-I (and the
authorities referred to therein) and 373B
[43] SCA Judgment, para [76]; record
76/76
[44] Commissioner for Inland Revenue v Strathmore
Consolidated Investments Ltd 1959 (1) SA 469 (A) at 476E-F, 477C, 479D-G,
480E-F; Goodrick v Commissioner for Inland Revenue 1959 (3) SA 523 (A) at
528E-G
[45] Solidarity’s written argument, paras
13 & 61
[46] SCA Judgment, paras [55], [76] & [79]; record 68/55, 76/76 &
77/79
[47] SCA Judgment, para [79]; record
77/79
[48] Solidarity’s written argument, para
62
[49] Ibid.
[50] Solidarity’s written argument, para
63
[51] 2004 (4) SA 490 (CC) at paras [75]-[76]
[52] SAPS written submissions, para 53 et
seq
[53] “In competition, individual ambition
serves the common good” – Adam Smith (1723 – 1790)
[54] Supplementary record, 318G/6-20
[55] SCA Judgment, para [41]; record
39/41
[56] SCA Judgment para [41]; record 39/41
[57] Bertha and Others v BTR Sarmcol 1998 (3) SA 349 (SCA) at 370F-I (and the
authorities referred to therein) and 373B
[58] Supplementary record 318S/2-22 &
318R/16-19
[59] Supplementary record 318G/675
[60] Supplementary record 318S/19-22
[61] Supplementary record 318N/1-9
[62] Supplementary record 318J/8-18
[63] SCA Judgment para [64]; record 71/64
[64] Supplementary record 318K/18 to
318L/6
