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Monday, September 8, 2014

Affirmative Action is NOT Unfair or Unconstitutional: Heads of Argument in the Constitutional Court

by Vuyani Ngalwana


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

14.2.3                “record of previous experience” (80%).[18]

 

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

14.3.3                “record of previous experience” (76%).[20]

 

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