1

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Reportable

Of interest to other judges

Case no: JS 523/2014

In the matter between

Solidarity obo JL Pretorius APPLICANT

and

City of Tshwane Metropolitan Municipality Minister of Labour

FIRST RESPONDENT

SECOND RESPONDENT

Heard: 7 and 8 March 2016

Delivered: 12 April 2016

Summary: Affirmative action – exclusion of an applicant on the basis of a staffing policy in the absence of an employment equity plan - in the absence of an employment equity plan or employment equity targets, goals and objectives exclusion is unfair – whether a staffing policy without employment equity targets, goals and objectives qualifies as an

employment equity or affirmative action measure to render discrimination on the basis of race and gender fair.

_____________________________________________________________

JUDGMENT

_____________________________________________________________

COETZEE, AJ

Introduction

[1] The applicant is Solidarity who represents and in this matter acts on

behalf of its member Mr JL Pretorius and in its own interest. In this

judgment, I refer to Mr Pretorius as the employee or the applicant.

[2] The City of Tshwane Metropolitan Municipality is the first respondent

and the employer of Mr Pretorius. In this judgment, I refer to the first

respondent as the employer.

[3] The employee is a white male employed in the position of Water Audit

Officer, Department Water and Sanitation and who applied for the

position of Foreman: Trades within the Department Services

Infrastructure, Division: Water and Sanitation and more particularly in

the section: Water Consumer Management ("the post").

The factual matrix

[4] The employee applied for the post prior to the closing date for

applications on 7 September 2012.

[5] He was shortlisted and interviewed on or about 15 March 2013 and

learned during July 2013 that the post was to be re-advertised. He

again applied but was not short listed. The shortlist for the first

advertisement was approved on 4 December 2012.

[6] The shortlisting was accompanied by a motivation from his

department that he as a person from the non-designated group be

included in the shortlisting for the reasons set out in the motivation.

[7] It is common cause that it was the practice to submit a motivation of

this nature when appropriate.

[8] The motivation was not available during the trial.

[9] The recruitment process afterwards was declared null and void as

conveyed in a letter dated 31 May 2013.

[10] The employer nullified the recruitment process on the basis that prior

to the interviews Mr Ratsiane, the Acting Executive Director: Human

Resource Management, conditionally approved the shortlist

(containing the name of the employee) subject to the following

condition:

'Only candidates from designated group should be shortlisted and

interviewed'.

[11] Mr Ratsiane's evidence was that he made the comment or set the

condition solely on the basis of workplace profile statistics reflected on

the form submitted to him for approval and on which he had made the

comment.

[12] His only consideration was the numbers in a table on the form. Those

numbers gave him the impression that there were "too many" white

males reflected in the group.

[13] He conceded that there were no numbers or numerical targets against

which he could compare the white male representation.

[14] He did not consider the motivation for the inclusion of white males in

the shortlist. The motivation accompanied the form submitted for his

approval on which he made the comment. He could not recollect

whether he saw the motivation at all. He did not consider any targets

and he did not consider whether the position required a scarce skill.

He was unaware that the position required certification as a plumber.

[15] Mr Ratsiane did not give any consideration as to whether the broader

representativity was relevant to the shortlisting of candidates for this

position in this specific department.

[16] The employer is a designated employer for purposes of the

Employment Equity Act, Act 55 of 1988 (the "EEA")

[17] The employer adopted its new Employment Equity Plan on 8 May

2013 '… retrospectively to 1 July 2012'.

[18] For the period 1 July 2012 to 8 May 2013, it had no Employment

Equity Plan in place. It initially submitted that the subsequent plan of 8

May 2013 was adopted retrospectively and that it covered the relevant

period.

[19] The employer, prior to 2012, had in place an employment equity plan

that had expired in June 2011. According to the representativity

figures, in the occupational category "skilled technical", there were

1098 white males employed at "skilled technical" level with a target to

be reached by 30 June 2013 set to be 1102 white males.

[20] This plan, at the time of the shortlisting of Mr Pretorius, had already

expired. The information, however, was still relevant with regard to the

representativity within this occupational category and suggested that

there was room to appoint white males. This information was not

considered by Mr Ratsiane. He took into consideration the

representation only of Foreman within the Division: Water and

Sanitation Department.

[21] The applicant and Mr Cassel testified that the Water and Sanitation

Department needed and still needs a Foreman to ensure service

delivery to the public. The applicant from time to time had to act in this

position. Mr Viljoen, his senior, also from time to time had to attend to

the duties of the Foreman which detracted from his own duties and

focus in overseeing the functions and duties of the Department as a

whole.

[22] The post is still vacant. The employer has not presented any evidence

that the post has been frozen or that there is no provision made for it

in the budget.

[23] In addition, it would have meant promotion to the employee to be

appointed to the position of Foreman.

[24] The employer had in place a Staffing Policy contained in a collective

agreement to which Imatu was a signatory. The employee is and was

a member of IMATU.

[25] Mr. Ratsiane relied on the provisions of the Staffing Policy to exclude

the employee from the process and to nullify the selection process.

Analysis and discussion

[26] The employee claims relief on the basis of unfair discrimination. It is

the employee's case that he was excluded from competing for the

vacant position on the basis of his race and gender.

[27] The decision of Mr Ratsiane to make the note, or impose the condition

as he explained in evidence, to exclude persons from the non-

designated groups from the shortlist and subsequently to declare the

process null and void was based solely on the gender and race of the

employee.

[28] The employer maintains that the employee should never even have

been shortlisted in terms of its Staffing Policy and therefore the

employer has not discriminated against the employee. In its view, the

employee could only have been a suitable candidate if he was a

member of a designated group.

[29] The employer, in fact, raises two defences: firstly that the employee

was a member of IMATU who is a party to the collective agreement

containing the Staffing Policy. That being the case, the employee is

bound by the provisions of the collective agreement (and the Staffing

Policy) to which IMATU is a party. Because in terms of the Staffing

Policy, he was excluded as a suitable candidate; he should not have

been interviewed and thus cannot complain as he was bound by the

collective agreement. This of course presupposes that the Staffing

Policy lawfully and fairly excluded him as a suitable person.

[30] Secondly, the employer initially defended itself by saying that it acted

in terms of its Employment Equity Plan for the period July 2012 to

June 2017. Its second defence in the hearing, however, changed from

reliance on the Employment Equity Plan to reliance on the Staffing

Policy.

[31] In argument, it abandoned its position that the plan applied

retrospectively and conceded that for the period 1 July 2012 to 8 May

2013, it had no plan in place. It was during this period that the

employee participated in the recruitment process.

[32] The employee in its statement of case asks for the Employment

Equity Plan adopted on 8 May 2013 to be set aside. This relief has

since been abandoned as the employer during February 2016

rescinded the plan (that did not apply from 1 July 2012 to 8 May 2013)

and replaced it with a new plan which is not before Court.

[33] The employer did not submit that the declaration of nullity of 31 May

2013, after the adoption of the Employment Equity Plan ("the plan") on

8 May 2013, was done in terms of the plan or that it could rely on the

plan for this conduct.

[34] The employer finally, and rightly so, conceded that in the absence of

justification, it discriminated against the employee. The employer

defended the alleged discrimination in terms of the Staffing Policy

which it submitted was and is an affirmative action measure as

contemplated in s 15 of the EEA.

[35] Having conceded that it discriminated against the employee, it carried

the onus to justify the discrimination as fair. If the employer can show

that it acted in accordance with an affirmative action measure then of

course it's conduct cannot be unfair.

[36] The main issue for determination in this matter is whether the Staffing

Policy is an affirmative action measure as contemplated in s 15 of the

EEA. If it is not, then that is the end of the matter. If it is, the second

question is whether the policy was applied fairly to the employee.

[37] In support of its submission that the Staffing Policy is an affirmative

action measure, the employer referred to and relied upon a number of

provisions of the policy itself. For convenience, the following relevant

parts (not all relied upon by the employer) are extracted from the

policy.

37.1 In the “Statement of Intent” three bullet points are relevant.

'(1) Consistent practices are applied and monitored to ensure

compliance with the staffing principles and the code of good

practice, the Constitution of the RSA, the relevant legislation,

the CoT's conditions of service and related Council

resolutions.

(2) Anyone applying for a position in the CoT is entitled to be

treated in a fair, objectives and transparent manner in the

evaluation of their application' and

(3) The Staffing Policy must be read in conjunction with the

collective agreements and any other relevant policies, and

national legislation that promote representivity.’

Clause 1.1:

'Employees are to be recruited, selected, appointed, transferred,

seconded, redeployed and promoted on the basis of fairness and

non-discrimination in line with the Employment Equity Act, 1998 (Act

and 55 of 1998) and the Employment Equity Policy of the City of

Tshwane Metropolitan Municipality (CoT), as well as any other

applicable legislation and CoT policies and applicable collective

agreements.'

Clause 1.5:

'Care must be taken that equal and similar selection processes apply

to all candidates and that no exception is made that is to the

advantage or disadvantage of any candidate.'

Clause 2.1:

'The objective of recruiting and selecting candidates is to invite

individuals to apply, and to appoint the applicant, who is suitable for

a position, subject to collective agreement, Employment Equity Policy

and any applicable legislation.'

Clause 2.2:

'The CoT is an equal opportunity employer that aims to eliminate all

forms of unfair discrimination in the recruitment and selection of staff.'

Clause 3.1:

'Affirmative action means measures designed to ensure that suitably

qualified people from designated groups have equal opportunities

and are equitably represented in all occupational categories and

levels of the workforce of the CoT.'

Clause 3.10:

'Department means the Department of the City of Tshwane

Metropolitan Municipality consisted of Divisions.'

Clause 3.17:

'Fair discrimination means consistent and just differentiation between

employees (applicants where applicable) for employment, e.g. to (a)

take affirmative action measure is consistent with the purpose of the

Employment Equity Act, 1998 (Act 55 of 1998) and (b) distinguish,

exclude or prefer any person on the basis of an inherent requirement

of a job.'

Clause 3.45:

'Suitably qualified candidate means a person contemplated in section

20 (3) and (4) of the Employment Equity.'

Clause 5.1.1:

'Selection is conducted in accordance with this Staffing Policy, as

amended from time to time and applicable at the time of selection, as

well as with all applicable Bargaining Council resolutions, collective

agreements and national legislation.'

Clause 5.2.1:

'Selection criteria must be based on the key performance areas and

inherent requirements of the position and must be applied

consistently.'

Clause 5.3.2:

'The relevant Department and the Strategic Human Resources

Division (Staffing Services and Management Section) evaluate all

applications received for a specific position against the actual job

requirements of the position as reflected in the person specification,

such as qualifications, experience and skills.'

Clause 5.3.3:

'Candidates from designated and non-designated groups who applied

for advertised posts may be excluded from the shortlisting process if

it can be proved that their candidature will not promote representation

in their Departments, taking into consideration the representation in

the occupational categories.'

Clause 5.3.6:

'Preference in shortlisting is to be given to employees or candidates

for whom the advertised position is a promotion.'

37.2 In terms of clause 5.3.7 the shortlist of candidates must be

presented to amongst others the Executive Director: Strategic

Human Resources and must be signed by all officials were

involved in the shortlisting session.

Clause 5.3.9:

'Before the shortlisting is conducted, the relevant Department must

ensure that the most recent employment equity plan or profiles or the

employment equity statistics is on the table, as well as the approved

organisational structure of the Department that shows Division,

Section and the post in question. These documents must be sent to

the Strategic Human resources Division. They will be attached to the

interview documents.'

Clause 5.6.2:

'General consensus must be reached before the interview panel can

make a recommendation.'

37.3 In terms of clause 5.6.4, the interview panel must make a

decision in determining the successful candidate and may also

identify a suitable backup candidate.

37.4 In terms of clause 5.7.8, a recognised trade union which is

dissatisfied with the selection process must raise its objections

before the interview panel adjourns and must submit it in

writing within two working days.

Clause 8.1.1:

'No person may be appointed in the CoT unless the recruitment

process described in this document has been followed, and the

process and the appointment have been fair, transparent and

reasonable.'

[38] What is also relevant is that on 8 May 2013, a motivation was

submitted to the Mayoral Committee for the approval of the revised

CoT's Employment Equity Plan and Strategy for the period 2012 to

2017.

[39] In this motivation, the following is stated:

'However, the Employment Equity Plan should not be read in

isolation but should be read in conjunction and the broader

understanding of the Employment Equity Policy, all human resources

policies, Employment Equity Strategy and Disability Policy.'

It is important to note that no mention is made of the Staffing Policy

unless it is included under '… all human resources policies'.

[40] The motivation further records that the

'… plan also seeks to address affirmative action measures has built

objectives to be achieved for each year of the plan as required by

section 20 (2) (a) and (b) of the Act.'

[41] In the same motivation, it is said that the Employment Equity Strategy

has been developed for the city to fulfil its mission through the

development of the Employment Equity Strategy, using the

Employment Equity Plan, Employment Equity Policy, Disability Policy

and Staffing Policy as key drivers of the strategy.

[42] Thus, the Staffing Policy is included in a basket of measures to

achieve an employment equity strategy.

The statutory framework

[43] In order to determine if the Staffing Policy is an affirmative action

measure and reliance thereon is justified, the discrimination as fair

regard must be had to the statutory framework.

[44] The touchstone by which any measures dealing with the promotion of

equality must ultimately accord with is s 9 of the Constitution, which

states:

'9 Equality

(1) Everyone is equal before the law and has the right to equal

protection and benefit of the law.

(2) Equality includes the full an equal enjoyment of all rights and

freedoms. To promote the achievement of equality, legislative

and other measures designed to protect or advance persons,

or categories of persons, disadvantaged by unfair

discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly

against anyone on one or more grounds, including race,

gender, sex, pregnancy, marital status, ethnic or social origin,

colour, sexual orientation, age, disability, religion, conscience,

belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly

against anyone on one or more grounds in terms of

subsection (3). National legislation must be enacted to

prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection

(3) is unfair unless it is established that the discrimination is

fair.'

[45] The EEA is intended to give effect to the right to equality. It is trite law

that

'A litigant cannot circumvent legislation enacted to give effect to a

constitutional right by attempting to rely directly on the constitutional

right.’1

[46] Amongst other things, it stipulates the requirements and governs the

implementation, of affirmative action measures pursuant to the

objective of substantive equality expressed in s 9(2) of the Bill of

Rights. The pertinent provisions of the EEA for the purposes of this

matter are sections 2,5,6,15,20 and 42, which read:

'2 Purpose of this Act

The purpose of this Act is to achieve equity in the workplace by-

(a) promoting equal opportunity and fair treatment in employment

through the elimination of unfair discrimination; and

(b 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.

….

5 Elimination of unfair discrimination

Every employer must take steps to promote equal opportunity in the

workplace by eliminating unfair discrimination in any employment

policy or practice.

6 Prohibition of unfair discrimination

(1) No person may unfairly discriminate, directly or indirectly,

against an employee, in any employment policy or practice,

on one or more grounds, including race, gender, sex,

pregnancy, marital status, family responsibility, ethnic or

social origin, colour, sexual orientation, age, disability,

1 MEC for Education: KwaZulu Natal v Pillay 2008 1 SA 474 (CC)at para [40]

religion, HIV status, conscience, belief, political opinion,

culture, language and birth.

(2) It is not unfair discrimination to-

(a) take affirmative action measures consistent with the

purpose of this Act;

15 Affirmative action measures

(1) 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.

(2) Affirmative action measures implemented by a designated

employer must include-

(a) measures to identify and eliminate employment

barriers, including unfair discrimination, which

adversely affect people from designated groups;

(b) measures designed to further diversity in the

workplace based on equal dignity and respect of all

people;

(c) making reasonable accommodation for people from

designated groups in order to ensure that they enjoy

equal opportunities and are equitably represented in

the workforce of a designated employer;

(d) subject to subsection (3), measures to-

(i) ensure the equitable representation of suitably

qualified people from designated groups in all

occupational categories and levels in the

workforce; and

(ii) retain and develop people from designated

groups and to implement appropriate training

measures, including measures in terms of an

Act of Parliament providing for skills

development.

(3) The measures referred to in subsection (2) (d) include

preferential treatment and numerical goals, but exclude

quotas.

(4) Subject to section 42, nothing in this section requires a

designated employer to take any decision concerning an

employment policy or practice that would establish an

absolute barrier to the prospective or continued employment

or advancement of people who are not from designated

groups.

….

20 Employment equity plan

(1) A designated employer must prepare and implement an

employment equity plan which will achieve reasonable

progress towards employment equity in that employer's

workforce.

(2) An employment equity plan prepared in terms of subsection

(1) must state-

(a) the objectives to be achieved for each year of the

plan;

(b) the affirmative action measures to be implemented as

required by section 15 (2);

(c) where underrepresentation of people from designated

groups has been identified by the analysis, the

numerical goals to achieve the equitable

representation of suitably qualified people from

designated groups within each occupational category

and level in the workforce, the timetable within which

this is to be achieved, and the strategies intended to

achieve those goals;

(d) the timetable for each year of the plan for the

achievement of goals and objectives other than

numerical goals;

(e) the duration of the plan, which may not be shorter

than one year or longer than five years;

(f) the procedures that will be used to monitor and

evaluate the implementation of the plan and whether

reasonable progress is being made towards

implementing employment equity;

(g) the internal procedures to resolve any dispute about

the interpretation or implementation of the plan;

(h) the persons in the workforce, including senior

managers, responsible for monitoring and

implementing the plan; and

(i) any other prescribed matter.

(3) For purposes of this Act, a person may be suitably qualified

for a job as a result of any one of, or any combination of that

person's-

(a) formal qualifications;

(b) prior learning;

(c) relevant experience; or

(d) capacity to acquire, within a reasonable time, the

ability to do the job.

(4) When determining whether a person is suitably qualified for a

job, an employer must-

(a) review all the factors listed in subsection (3); and

(b) determine whether that person has the ability to do the

job in terms of any one of, or any combination of those

factors.

(5) In making a determination under subsection (4), an employer

may not unfairly discriminate against a person solely on the

grounds of that person's lack of relevant experience.

(6) An employment equity plan may contain any other measures

that are consistent with the purposes of this Act.

….

42 Assessment of compliance

In determining whether a designated employer is implementing

employment equity in compliance with this Act, the Director-General

or any person or body applying this Act must2, in addition to the

factors stated in section 15, take into account all of the following:

(a) The extent to which suitably qualified people from and

amongst the different designated groups are equitably

represented within each occupational category and level in

that employer's workforce in relation to the-

(i) demographic profile of the national and regional

economically active population;

(ii) pool of suitably qualified people from designated

groups from which the employer may reasonably be

expected to promote or appoint employees;

(iii) economic and financial factors relevant to the sector in

which the employer operates;

(iv) present and anticipated economic and financial

circumstances of the employer; and

(v) the number of present and planned vacancies that

exist in the various categories and levels, and the

employer's labour turnover;

(b) progress made in implementing employment equity by other

designated employers operating under comparable

circumstances and within the same sector;

2 The word “must” was replaced with “may” by the Employment Equity Amendment Act 47 of 2013, with effect from 1 August 2014.

(c) reasonable efforts made by a designated employer to

implement its employment equity plan;

(d) the extent to which the designated employer has made

progress in eliminating employment barriers that adversely

affect people from designated groups; and

(e) any other prescribed factor.'

Analysis of the legal framework

[47] The Act contemplates, as an affirmative action measure, a plan based

on prescribed information setting out numerical goals and the time

period within which those numerical goals may be achieved.

[48] In the absence of a plan, an employer in making an appointment or

granting promotion must have regard to the factors set out in s 15 and

s 42.

[49] The Act further contemplates that the affirmative action measure must

be such that it is capable of measurement and being monitored. The

Department of Labour must be in a position to ensure compliance with

the plan in terms of sections 15 and 42.

[50] The mere fact that the Staffing Policy is contained in a collective

agreement does not shield it from scrutiny. The Labour Court in

Department of the Premier, Western Cape v Plaatjies NO and Others3

confirmed and followed a Labour Appeal Court decision as follows:

'… A collective agreement may not override statutory provisions; and

… Where the effect of an agreed provision was to unfairly

discriminate, its origin in a collective agreement would not constitute

a justification'.

3 (2013) 34 ILJ 2876 (LC) at para 41.

[51] Although it was not necessary for the Constitutional Court in South

African Police Service v Solidarity obo Barnard4 to evaluate whether

the SAPS plan in question, in that case, was unfairly discriminatory.

The court reiterated some of the considerations which a proper

approach to challenges of that kind entail. Those considerations are

equally relevant to determine whether the Staffing Policy qualifies as

an appropriate affirmative action measure and if so, that it does not

unfairly discriminate against members of the designated or non-

designated groups. These considerations give direction to which

measures qualify in terms of the Employment Equity Act:

'[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

4 (2014) 35 ILJ 2981 (CC).

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.'5

[52] Equality presupposes a measurable result. Simply relying on numbers

without a measurable goal can only be described as a subjective

barrier or form of quota to the exclusion of persons from the

designated or non-designated group.

[53] Also, after noting that the respondent in Barnard had abandoned an

attack on the plan and the national instruction, the Constitutional

Court observed, in passing, that:

'[42] A designated employer is required to implement several

measures in pursuit of affirmative action. They must identify

and eliminate employment barriers, further diversify the

workforce 'based on equal dignity and respect of all people'

and 'retain and develop people' as well as 'implement

appropriate training measures'. Section 15(3) contains a vital

proviso that the measures directed at affirmative action may

5 Ibid at paras 30-37.

include preferential treatment and numerical goals but must

exclude 'quotas'. Curiously, the statute does not furnish a

definition of 'quotas'. This not being an appropriate case, it

would be unwise to give meaning to the term. Let it suffice to

observe that s 15(4) 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 policy or practice that would

establish an absolute barrier to the future or continued

employment or promotion of people who are not from

designated groups.6'

[54] The Court in Solidarity v Minister of Safety and Security and Others,7

summarised the cases prior to and after Barnard as follows:

‘[15] Before either of the judgments in Correctional Services or

Public Servants Association were handed down,

Tlhotlhalemaje, AJ handed down judgment in Solidarity and

Others v SA Police Services and Others (JS 469/12).

(Footnote omitted) In that matter, the court had to determine if

a collective agreement concluded between the SAPS and

other unions, but not Solidarity, was a valid affirmative action

measure. For the purposes of that judgment, the Labour

Court accepted that the SAPS plan was valid, as set out in

the following passages:

“[33] The Collective Agreement is an affirmative action

measure as conceded by Solidarity. For the purposes

of these proceedings, I did not understand Solidarity’s

case to be that it challenged the Employment Equity

Plan as adopted in the Collective Agreement in its

form, nor were the numerical targets set out in that

Plan challenged. It is common cause that Solidarity

has since lodged an application in this Court under

case number J879/12 to seek an order setting aside

the SAPS’ current Employment Equity Plan on the 6 Ibid at para 42. 7 (J879/12) [2016] ZALCJHB 15 (26 January 2016) at paras 15-25.

basis that it does not comply with the Constitution and

other various statutory enactments. That matter is

pending before this Court. Furthermore, Solidarity’s

application in this Court under case number: J

2145/14 to seek an order that it be consulted at the

level of the SSSBC in respect of the design of the

Employment Equity Plan itself was dismissed, and an

appeal has since been lodged in that regard.

[34] For the purposes of this application, and since it was

accepted by Moseneke ACJ in Barnard that the

validity of the SAPS Employment Equity Plan (A

collective agreement) nor its fairness was placed in

question, the Plan is indeed a valid affirmative action

measure authorized by section 6(2) of the

Employment Equity Act. (Footnote omitted) Equally

more important is that the Plan passes the three-

pronged test laid out in Van Heerden and Barnard. In

this regard, Van der Westhuizen in a separate but

concurring judgment in Barnard held that:

“The constitutional validity of the Act was not

attacked. Section 6(2) of the Act specifically

states that affirmative measures do not

constitute unfair discrimination. The

Employment Equity Plan as a measure (with

its accompanying guidelines) passes the first

two prongs. It identifies and targets categories

of persons previously disadvantaged by unfair

discrimination and categorises them in

designated groups which must be advanced

and promoted according to numerical targets'

(Footnote omitted)

and,

'Therefore the implementation of the measure

satisfies the third leg of the Van Heerden

enquiry in that it promotes the achievement of

equality….”

[35] The fact that the Employment Equity Plan is a valid

affirmative action measure, or that it passed the Van

Heerden test does not however necessarily imply the

same with the Collective Agreement impugned despite

it being accepted as an affirmative action measure.

This is so in that unlike the Plan, which normally has a

lifespan of five years, the Agreement was put in place

for a particular purpose, and as a once-off measure or

process, to populate the ranks as per the new

structure over a period of 24 months. Although in

implementing the Agreement numerical targets set out

in the Plan were adapted, the Agreement has its own

unique features, which as I understand Solidarity’s

arguments are on their own or as implemented with

the Plan, objectionable.”

[16] The Correctional Services judgment of the LAC dealt with a

factual scenario which raised issues of law and principle,

which in important respects are indistinguishable from the

ones in this matter. That case concerned a number of

individual coloured Correctional Service employees who

believed they had been unfairly denied the opportunity of

appointment or promotion because, in particular, the

Correctional Services employment equity plan had failed to

take account of the particular regional demographics of the

Western Cape, where colourds comprise a higher proportion

(approximately 50%) of the regional population than they do

nationally (approximately 8.8 %).

[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. (Footnote omitted)

[18] In Van Heerden, the constitutional court (per Moseneke, J as

he then was) set out, in summary, the three requirements of

demonstrating that an affirmative action measure meets the

constitutional standards set out in s 9(2) of the Constitution:

'It seems to me that to determine whether a measure

falls within s 9 (2) the enquiry is threefold. The first

yardstick relates to whether the measure targets

persons or categories of persons who have been

disadvantaged by unfair discrimination; the second is

whether the measure is designed to protect or

advance such persons or categories of persons; and

the third requirement is whether the measure

promotes the achievement of equality.' (Footnote

omitted)

[19] In Correctional Services, the LAC reiterated the constitutional

requirements of restitutionary measures mentioned in Van

Heerden with reference to the facts before it:

“[51] Because Barnard was concerned with the decision by

the National Commissioner not to appoint Captain

Barnard to an advertised position, the court in that

case did not have to examine the equity plan. It

follows that the test set out in Van Heerden was not

strictly applicable to the determination thereof. But in

this case, the three criteria which the court in Van

Heerden isolated in s 9(2) to test restitutionary

measures are directly relevant. To recapitulate: the

measure should target a category of beneficiaries

disadvantaged by unfair discrimination. This is

reflected in the very nature of the DCS plan. Secondly,

the measure must be 'designed to protect or to

advance such persons or categories of persons, and

must be reasonably capable of obtaining the desired

outcome'. In terms of the plan, there is a provision for

deviations, which can be implemented in the event

that a rigid implementation of a plan would

compromise service delivery or where it would not be

possible to appoint suitably qualified people from

designated groups to the relevant occupational

categories and levels in the workforce. If rationally

implemented, these deviations ensure that the plan

does not have to be implemented in a rigid fashion, in

which case the plan is reasonably capable of

obtaining its desired outcome of a representative

workforce which is suitably qualified and achieves

service delivery. Thirdly, the court in Van Heerden

held that the measure must promote 'the achievement

of equality'. Hence, the test is concerned to ensure

that 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'. It is here that the rights of

persons who are not part of the designated category

can be protected. That this protection must pass

through the prism of the substantive nature of the right

to equality makes this the most difficult part of the

enquiry.

[52] It is clear from the testimony of Mr Magagula and Mr

Bonani that this was the objective which the DCS had

in mind when it developed its plan to ensure

substantive equality for those who suffered the most

egregious forms of discrimination under apartheid. In

the light of our observation regarding the third leg of

the enquiry, there is a further important consideration

which adds weight to the respondents' case; that is

that the EEA must be read through the prism of s 9(2).

Inevitably, on the reading we have given to s 9(2),

weight is accorded in the balancing act to the position

of the individual appellants even though there cannot

be a blanket deference to a decision to promote

disadvantaged groups. The EEA however recognises

a need for balance. In the first place, a person

appointed from a designated group must be suitably

qualified for the position. Secondly, where an

individual applicant possesses scarce or unique skills

which are relevant to the organisational needs of the

designated employer, these must be taken into

account; hence the prohibition against an absolute bar

to employment. Thirdly, for reasons which will become

apparent presently, a consideration of regional

demographics in terms of s 42 of the EEA may well

come to the aid of categories of applicants who

otherwise were unduly burdened by the

implementation of the plan.' (Footnote omitted)

(Emphasis added)

[20] The PSA matter, like Correctional Services concerned alleged

unfair discrimination against a specific individual from a

designated group, in that instance an Indian male. One of the

issues the court had to decide was whether the SAPS equity

plan at that time (2000) was in line with the EEA. Once again,

the LAC emphasised the primacy of the three pronged test for

testing whether a restitution measure is compatible with what

the Constitutional Court first described in detail in Van

Heerden and mentioned again in Barnard. (Footnote omitted)

[21] On the facts of the case in PSA, the court found that the plan

passed the first requirement of targeting a class of persons

who had been susceptible to unfair discrimination and was

designed to protect and advance the employment of

applicants from that class. In dealing with the last prong of the

test, the court found that the complainant had not been

unfairly discriminated against for two reasons. Firstly, at all

levels of the organisation, Africans were “hopelessly under-

represented” and the plan was trying to ensure restitution

took place “…in order that a broadly non-racial police force

could emerge in Kwazulu-Natal, one that was not predicated

on previous historical patterns”. Secondly, the difference in

scores between the successful African candidate and the

complainant was insignificant and the African candidate had

the necessary ability to serve in the post with distinction.

(Footnote omitted) Thus, having regard to the specific

demographics in the province and the racial profile of the

workforce with reference to the targets in the plan together

with the ordinary selection criteria the balance struck between

employment equity imperatives and operational needs was

achieved relatively easily.

[22] In Naidoo’s case, the LAC found that the court a quo had

erred in dealing with the validity of the plan because that had

not been in issue before it. (Footnote omitted) Consequently,

this judgment is of limited relevance to the current matter.

[23] In Correctional Services, the LAC concluded that the

Department had failed to take account of regional

demographics, which at the time was a mandatory

requirement in terms of s 42(a)(i) of the EEA:

“[59] In summary, the respondents failed to take account of

the particular regional demographics of the Western

Cape which was a mandatory requirement at the time

that the plan was conceived. The failure to do so could

result in a large-scale reduction in the workforce of

members of the designated group, who themselves

had suffered egregious discrimination as a result of

apartheid. Even if the word 'may' is employed in this

enquiry, it is our view that, given South African history,

the failure to take account of the impact of regional

demographics on the nature and purpose of the plan

adversely reduces the contribution of restitution

towards substantive equality and hence the attempt to

achieve the effective goal of developing a non-racial

and non-sexist society. This complete failure to

examine the region in which the plan is conceived,

constitutes a sufficient legal obstacle against the plan

being held to be in compliance with the EEA.”

(Footnote omitted) (Emphasis added)

[24] Clearly, a feature of that case which had a material bearing

on the LAC decision was that the complainants belonged to a

designated group of previously disadvantaged persons and a

primary objective of their challenge was to assert a claim to

improve their position relative to other previously

disadvantaged groups in line with their demographic profile in

the economically active population in the Western Cape. In

this case, the plan is attacked not with reference to the

prejudice allegedly suffered by a particular group of individual

employees. Rather, the applicants contend that the very

schema of the plan is such that it establishes absolute

barriers to appointment or promotion the effect of which are

indistinguishable from the operation of quotas.

[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.’

[55] In the Solidarity-case (supra), the Court tested a SAPS employment

equity plan against the legal framework and Constitutional

requirements. In the same vein, the Staffing Policy also needs to meet

these requirements in principle to qualify as an acceptable affirmative

action measure.

[56] Firstly the affirmative action measure needs to have numerical goals

'… as underrepresentation can only be determined against some kind

of numerical norm.'8

[57] In this regard, the Code of Good Practice on the preparation,

implementation and monitoring of equity plans states that:

'Numerical goals should be developed for the appointment and

promotion of people from designated groups. The purpose of these

goals would be to increase the representation of people from

designated groups in each occupational category and level in the

employer’s workforce where underrepresentation has been identified

and to make the workforce reflective of the relevant demographics as

provided for in form EEA8.' (My emphasis)

[58] Regulation 2(5) of the EEA General Administrative Regulations of

2009 states among other things that when a designated employer

conducts the analysis required by section 19(1) of the EEA, the

employer may refer to form EEA 8. The analysis in question is the

analysis a designated employer must conduct of its employment

policies, practices, procedures and working environment in order to

identify employment barriers adversely affecting people from

designated groups. Section 19(2) of the EEA requires the employer to

include a profile of its workforce within each occupational category

and level to determine the degree of underrepresentation of people

from designated groups in the workforce. Obviously,

‘underrepresentation’ can only be determined against some kind of

numerical norm.9

(Own emphasis)

[59] Form EEA 8, entitled ‘Annexure 1: Demographic Data’ reads:

8 Solidarity v Minister of Safety and Security and Others (supra) at para 43 9 Ibid at para 43

‘Demographic Profile of the National and Regional Economically

Active Population

WHAT IS THE PURPOSE OF THE DEMOCRATIC PROFILE OF

THE NATIONAL AND REGIONAL ECONOMICALLY ACTIVE

POPULATION AND WHERE TO FIND THEM?

Statistics South Africa provides demographic data using Labour

Force Surveys from time to time. The Labour Force Surveys (LFS)

that is normally released quarterly provides statistics on the national

and provincial Economically Active Population (EAP) in terms of race

and gender. Employers can access this information directly from

Statistics South Africa. This information must be used by employers

when consulting with employees, conducting an analysis and when

preparing and implementing Employment Equity Plans.’

[60] There seems to be no dispute that the Staffing Policy may satisfy the

first two legs of the constitutional test that a remedial measure must

meet to qualify under s 9(2) of the Constitution, as laid down in

Minister of Finance and Another v Van Heerden.10 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.'11

[61] The third leg of the test is intimately bound up with the discussion of a

deviation policy, which is dealt with below.

10 2004 (6) SA 121 (CC). 11 Solidarity v Minister of Safety and Security and Others (supra) at para 49

[62] The City of Tshwane in this case submitted that not only an

Employment Equity Plan constitutes an affirmative action measure as

contemplated in the EEA and submitted that its Staffing Policy

amongst others is an affirmative action measure in itself. Is that true?

Compliance of the Staffing Policy with the EEA

[63] 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. 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 figures reflected on the form submitted

to Mr Ratsiane without reference to the economically active population

Mr Ratsiane did not consider either of these standards. The Staffing

Policy also does not assist Mr Ratsiane as it does not have regard to

numerical goals set in accordance with the economically active

population. The Staffing Policy in this regard does not comply with the

EEA.

[64] It has been submitted by the applicant does not provide for a flexible

implementation.

[65] In Solidarity and Others v Department of Correctional Services and

Others (Police and Prisons Civil Rights Union as Amicus Curiae),12

the LAC addressed the question of when numerical employment

12 (2015) 36 ILJ 1848 (LAC) at paras 40-41.

targets used in an employment equity plan could be construed as

quotas prohibited by section 15(3):

‘Evaluation of appellants' argument

[40] A 'quota' is defined in The Concise Oxford Dictionary, to the

extent that it is relevant to this dispute, as 'a fixed number of a

group allowed to do something e.g. Immigrants entering the

country'.

[41] Much of the debate before this court turned on the distinction

between a quota, which in terms of the EEA, is an

impermissible mechanism, and the permissible concept of

numerical targets. The key distinguishing factor between

these two concepts turns, it appears, on the flexibility of the

mechanism. An inflexible set of numbers with which the

designated employer is required to comply 'come what may'

constitutes a quota and would therefore be in breach of s

15(3) of the EEA. By contrast, a plan based on designated

groups filling specified percentages of the workforce, but

which allowed for deviations therefrom so that there was no

absolute bar to present or continued employment or

advancement of people who do not fall within a designated

group (s 15(4)) would pass legal muster. Similarly, a plan

which provides that the numbers provided for in the plan

constitute a goal to be achieved over a defined period would

be congruent with the EEA. Of course, even in this case, a

target may be designed to achieve a defined goal in a

specified period, after which, absent some room for flexibility,

the target could become a quota. If the plan is inflexible, then

it must be struck down. See in this connection SA

Restructuring & Insolvency Practitioners Association v

Minister of Justice and Constitutional Development and

Others (2015 WCC case no 4314/2014).’(Emphasis added)

[66] The Staffing Policy in the first place does not provide for numerical

targets. Secondly, it does not make provision for a flexible

implementation. This resulted in Mr. Ratsiane adopting an inflexible

approach and blindly adopting the representivity figures before him as

the only information he had to consider.

[67] The LAC found that the Department of Correctional Services equity

plan did provide for deviations from the attainment of numerical goals

when making appointments or promotions or promotions in certain

circumstances. This was sufficient not only to avoid the conclusion

that the Correctional services plan did not establish quotas but was

also sufficient for the plan to pass constitutional muster in terms of the

third prong of the test set out in Van Heerden for evaluating remedial

measures under s 9(2) of the Constitution:

‘In terms of the plan, there is a provision for deviations, which can be

implemented in the event that a rigid implementation of a plan would

compromise service delivery or where it would not be possible to

appoint suitably qualified people from designated groups to the

relevant occupational categories and levels in the workforce.’13

and

‘As indicated, we do not consider that a deviation plan that focuses

exclusively on organisational need and the consequent assessment

of skills, experience and the ability of an individual applicant to fulfil

these defined needs renders such a plan unconstitutional.’14

[68] The Staffing Policy, in this regard, does not comply with the EEA. To

the extent that it provides for a motivation to deviate from applying

affirmative action measures, Mr. Ratsiane ignored the memorandum

that accompanied the recommendation of shortlisted applicants

submitted to him for his approval.

[69] In this instance, unlike in the Correctional Services matter (supra),

there is no provision in the Staffing Policy setting out the

circumstances in which a deviation from the Staffing Policy would be

acceptable. Any member of management dealing with appointments

13 Van Heerden at para 51. 14 Ibid at para 70.

or promotions would find no guidance in the Staffing Policy 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 goals

set out in the Staffing Policy and which also would not negatively

affect their own performance assessment or possibly result in

disciplinary action being taken against them. On the wording of the

Staffing Policy itself, it does not cater for exceptions. The Staffing

Policy clearly relies upon other information for decision making.

[70] What is lacking in the Staffing Policy is a provision that tells decision

makers under what circumstances can the pursuit of the figures put

on the table (in the absence of a plan) yield to other considerations

when recommending or making an appointment. Clause 5.3.9 that

requires that '… the most recent employment equity plan or profiles or

the employment equity statistics is on the table' (own emphasis) does

not meet the requirements of the EEA to provide for a flexible

approach and to achieve equity. It is impossible for any decision

maker to recommend or make an appointment based simply on the

statistics or simply on the employment profile without having regard to

the numerical goals and an endeavour to achieve equity.

[71] The City of Tshwane, in this case, in support of its submission that not

only an Employment Equity Plan constitutes an affirmative action

measure as contemplated in the EEA relied upon a number of other

authorities for its proposition that its Staffing Policy, amongst others, is

an affirmative action measure in itself.

[72] The first is Willemse v Patelia N.O.and Others15 wherein the Labour

Court has said that:

'An Employment Equity Plan is helpful as a framework within which

to determine the fairness of an employer's discriminatory decisions

when it purports to make appointments, or refuses to make them, in

furtherance of the employer's employment equity objectives'. 15 (2007) 28 ILJ 428 (LC) at para 34.

[73] In this case, the Court, however, further held that it was satisfied that

the fact that the employer did not have an Employment Equity Plan as

required does not in and by itself render the refusal to promote the

employee unfair.

[74] It is, however, important to note that the court also said the following:

'Whilst the DEAT did not have a formal employment equity plan at

the time the acting director-general refused the recommendation to

promote Dr Willemse, the evidence before the arbitrator did disclose

that the DEAT was operating within a framework of policy statements

as well as targets with reference to its employment equity goals and

objectives.'16 (Own emphasis)

[75] The second authority is that of NEHAWU obo Manyana and Another v

Masege N.O. and Others:17

'In any event, and as a matter of law, the absence of an Employment

equity Plan cannot stand in the way of the employer nonetheless

applying considerations relating to employment equity when deciding

whether to make appointments, which, in casu, and on the reasoning

provided by the Third Respondent at the time, related to the

underrepresentation of black females.'

[76] This remark, however, was made in a judgment reviewing an

arbitration award and did not in any detail examine the validity of an

affirmative action measure as such. The Commissioner in the award

held that the alleged unfair promotion claim of the applicants in the

matter could not succeed:

76.1 They applied for the promotional posts but were not appointed

as nobody was appointed.

76.2 The evidence was that the posts were frozen.

16 Ibid. 17 (Case No JR 363/2012) 2014 ZALCJHB 124 (8 April 2014) at para 53.

76.3 A black female applied for a similar post in another province

and was successful. The employer's justification for this

appointment was that for affirmative action reasons she was

the best candidate. The appointment was made prior to the

posts being frozen.

[77] The Judge agreed with the observation that in the absence of an

employment equity plan, employers are entitled, for employment

equity considerations, to select the best candidate. The employer in

question (as in this case) had a Human Resources policy in place.

The policy recorded that the employer supports and practices

employment equity by affording preferential treatment to suitably

qualified applicants from designated groups and giving special

attention to under-represented designated groups. This, however, was

an obiter finding in the context of the review application as the

Commissioner held that the post were in any event frozen.

Further evaluation of the Staffing Policy

[78] The test for an affirmative action measure in compliance with the Act

was restated in the Barnard-case and has been followed in the Labour

Court.

[79] Applying the test to the Staffing Policy, it is evident that sections of the

Staffing Policy are designed and intended to target a particular class

of people who have been susceptible to unfair discrimination; (b)

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

promote the achievement of equality as required by the test.

[80] The employer did not show that in relying on the policy, other than

what was the position in the Willemse-case, that the city of

Tshwane:18

18 Fn 27

'… was operating within a framework of policy statements as well as targets

with reference to its employment equity goals and objectives'.

[81] It may well be that the employer may have had in place other policies

and codes employment equity targets, numerical goals and objectives

as contemplated in the EEA and in the Willemse-case. This is not

what the employer pleaded. The employer also did not present any

evidence of any existing targets, numerical goals and objectives. The

only reference to is to be found in the motivation that accompanied

the Employment Equity Plan when presented to the employer for

approval. It is clear from the motivation that the other pillars of the

Employment Equity Strategy had expired.’

[82] The Staffing Policy also fell short of compliance with the EEA in that it

clearly does not contain the results of the investigation that an

employer must conduct for purposes of designing and implementing

affirmative action measures.

[83] The EEA clearly envisages a structured approach to the

implementation of affirmative action measures. The measures must

be such that, amongst others, there are targets, numerical goals and

objectives that can be monitored and measured. The Staffing Policy

lacks this.

[84] In the absence of measurable numerical targets and properly

formulated measures, it would be impossible for an applicant who is

excluded from promotion or an appointment to challenge the process

and to uphold his or her human dignity.

[85] Mr Ratsiane's reliance on clause 5.3.3 for the exclusion of the

employee from the shortlist is also misplaced. This clause clearly

requires something more. It requires proof that the employee's

candidature would not promote representation in his Department,

taking into consideration also representation in the occupational

categories.

[86] The policy does not define occupational categories. Logically, these

can only be the six occupational categories or levels envisaged by the

Act. It was incumbent upon Mr Ratsiane to have regard to the broader

representivity issues including targets, numerical goals and

objectives.

[87] He failed to do so because the Staffing Policy was one of a basket of

measures upon which he should have relied. The absence of a plan at

the time made that virtually impossible.

[88] It is safe to assume that when the collective agreement containing the

Staffing Policy was entered into, it was done on the understanding

that the employer would have, as it is obliged to do, an employment

equity plan in place. The employer is a designated employer and

obliged to submit and act in accordance with an employment equity

plan. Because of a prior merger with two other municipalities, the plan

for the period 2012-2017 was delayed.

[89] It is also evident that the employer had more than a Staffing Policy. It

normally operates within the confines of an Employment Equity Plan,

an Employment Equity Strategy and its own Code. The Staffing Policy

is one pillar of its affirmative action strategy and measures.

[90] The employer did not plead justification for the exclusion of the

employee on the basis of race and gender other than in terms of the

then non-existent employment equity plan and its Staffing Policy. It

then failed to present evidence on the targets, numerical goals or any

objectives other than what was contained in the policy. The Staffing

Policy primarily contains objectives in principle.

[91] Mr Ratsiane's fixation with those figures that he saw on the form that

he had to approve caused him to close his mind to the fact that:

[91.1] There was a motivation in support of including a candidate from

a non-designated group (flexibility), and

[91.2] There were broader considerations of equity to be considered.

[92] The employer, therefore, has failed to prove that the candidature of

the employee would not promote representation in the occupational

categories. In this sense, it did not comply with its own policy. I have

already indicated that the policy, in my view, in itself does not

constitute an affirmative action measure as contemplated by the EEA.

[93] There is no basis in law for Mr Ratsiane to have excluded suitable

candidates from the interview process. The design of the EEA is to

allow "suitable", as defined, candidates from the designated groups to

compete with those suitable candidates from the non-designated

group and to ensure that they benefit from the affirmative action

measures.

Relief

[94] The interview panel recommended the employee for appointment to

the post. The only objection, according to Mr Ratsiane, was after the

interviews from the union based on employment equity

considerations. Such an objection in the absence of targets, numerical

goals or any objectives is unsustainable. Save for the objection based

on affirmative action considerations after the interviews, there was no

objection against the employee being the best suitable candidate for

the post.

[95] But for the disqualification of the employee by Mr Ratsiane on the

basis of race and gender on the workforce profile figures for that

section, the employer has not shown that there was any bar to the

appointment of the employee.

[96] The evidence that service delivery has been and is suffering as long

as the post remains vacant was not disputed by the employer other

than in cross-examination. The employer denied that that was the

position but did not present any evidence contradicting that of the

applicant or Mr Cassel.

[97] This court is empowered to provide appropriate relief to the employee.

This may include payment of compensation or appointment to the

position with or without payment of compensation.

[98] The employee has been subjected to the interview process. When Mr

Ratsiane nullified the process and thereby the recommendation that

he acted upon his belief that he lawfully and fairly had excluded the

employee from the shortlist. That, however, is not the case. The

recruitment process and the recommendation should stand.

[99] The employer has not presented any evidence to show that in terms

of its current employment equity plan for the period 2012-2017, the

appointment of the employee at this point in time would adversely

affect its employment equity targets, goals and objectives either.

[100] The City of Tshwane is directed to appoint Mr JL Pretorius with effect

from 1 May 2016 to the position that he was recommended for, that is,

the position Foreman: Trades.

[101] The employer provided the employee with the outcome of his

grievance in respect of the non-appointment on 8 October 2013. The

outcome is based upon Mr Ratsiane's understanding of his powers

and duties in terms of the Staffing Policy. The date of 8 October 2013

is close enough to the date when the employer would have appointed

the employee had the grievance been successful.

[102] It is fair to the employer and the employee for the employer to

compensate the employee for the period 8 October 2013 to 30 April

2016. The compensation should be equal to the difference between

what the employee earned and what the employee would have

earned in the post had he been appointed on 8 October 2013.

[103] Both parties have argued in favour of a cost order. I can see no

reason why I should not make a cost order in accordance with what

the parties wanted. There is no reason to disregard their arguments.

[104] The Court has been asked to order the City of Tshwane in future not

to exclude candidates from shortlisting for employment equity

considerations.

[105] This case is about the position of Mr Pretorius. The relief is directed at

Mr Pretorius.

[106] I make the following order:

1. The first respondent is ordered to appoint Mr JL Pretorius to

the position of Foreman: Trades in the Department of Water

and Sanitation in the City of Tshwane with effect from 1 May

2016.

2. The first respondent is ordered to pay compensation to Mr JL

Pretorius equal to the difference between what he has earned

and what he would have earned in the post of Foreman:

Trades during the period 8 October 2013 to 30 April 2016.

3. The first respondent is ordered to pay the applicant's costs.

___________

Coetzee AJ

Acting Judge of the Labour Court

Appearances:

For the applicant: Advocate M J Engelbrecht

Instructed by: Serfontein Viljoen & Swart

For the First Respondent: Advocate Wilhelm P Bekker

Instructed by: Gildenhuys Malatji Inc