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The main purpose of affirmative action is to redress the effects of past discrimination and end discrimination and thus promote equality and transformation in the workplace. There is however, slow progression towards the implementation of affirmative action measures in the workplace. A further concern is that our courts provide conflicting

decisions on the interpretation and application of affirmative action legislation.

The applicable affirmative action legislation will be discussed below.

The Constitution of the Republic of South Africa 108 of 1996 (“The Constitution”)

The Constitution lays the foundation for an open society based on democratic values, social justice, fundamental human rights and equality.

Affirmative Action has its roots firmly embedded in section 9(2) of the Constitution also termed the “equality clause” which focuses on unfair discrimination:

“Equality includes the full and 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.”

In Minister of Finance v van Heerden[2004] 12 BLLR 1181 (CC),a case culminating in the Constitutional Court, held that the test for whether an affirmative measure falls within section 9(2) of the Constitution is to ask: (1) whether the measure targets persons or categories of persons who have been disadvantaged by unfair discrimination; (2) whether the measure is designed to protect or advance such persons; and (3) whether the measure promotes the achievement of equality.

The Employment Equity Act 55 of 1998 (“The EEA”)

As a result of apartheid and historical discriminatory legislation there are imbalances in employment, occupation and income within the national labour market. The EEA was designed to promote fairness in designated groups: black people, women and disabled persons (note: black people is a“generic” term defined as African, Indian and Coloured in terms of section 1 of the EEA. This definition was further extended to include Chinese people who became South African citizens before 1994 see Chinese Association of South Africa and others v Minister of Labour and Others No59251/2007 18/06/2007 TPD).

A designated employer is defined in the EEA as follows: (a) a person who employs 50 or more employees; (b) a person that employs fewer than 50 employees but has an annual turnover equal to or above the annual turnover of a small business in terms of Schedule 4 of the EEA; (c) a municipality; (d) an organ of state but excluding local spheres of government, National Defence Force, National Intelligence Agency and the South African Secret Service and (d) an employer bound by a collective agreement.

Section 6of the EEA prohibits unfair discrimination with a similar objective to section 9 of the Constitution. However, it clearly prescribes that it is not unfair to discriminate in the following circumstances: (a) to promote affirmative action measures consistent with the purpose of EEA or; (b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job. According to section 11 of the EEA whenever unfair discrimination is alleged in terms of the EEA the employer against whom the allegation is made must establish that it is fair.

Section 15 of the EEA defines affirmative action measures as follows:

(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.”

Section 20 of the EEA obliges that a designated employer must prepare and implement an employment equity plan which will achieve reasonable progress towards addressing employment equity in the workplace. An employment equity plan prepared by a designated employer must provide for affirmative action measures to be implemented in terms of section 15(2) of the EEA. Importantly, where under-representation of employees from designated groups have been identified by analysis, the numerical goals to achieve the equitable representation of suitably qualified people from designated groups within each occupational category and level in the workplace needs to be included in the employment equity plan. Section 20(3)of the EEA provides that for the purposes of the EEA a person may be “suitable qualified” for a job as a result of any one of or 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.

It has been almost 17 years since the enactment of the Constitution and almost 15 years since the enactment of the EEA. What is of concern is the inconsistency in relation to the application of affirmation action legislation in the workplace when appointing candidates for a vacant position. This emerges from judgements that will be discussed below.

Cases That Have Come Before the Courts

Recent Developments

In Solidarity obo Barnard v SA Police Services[2010] 5 BLLR 561 (LC), the Labour Court held that Barnard an employee of the South African Polices Services (“SAPS”) had been unfairly discriminated against on the basis of her race in that had she not been of the white race group, she would have been appointed to the position that she applied for in two successive promotional phases as she received the highest assessment score during both interview processes.

The following principles emerged when the Labour Court made an analysis of all the evidence in the above case: (a) the provisions of the EEA and an equity plan must be fairly applied and with due regard to the affected individual’s right to equality and dignity; (b) the extent to which affirmative action may be used to discriminate against individuals is limited by law; (c) affirmative action must be applied rationally and fairly (there must be a rational connection between the provisions of an employment equity plan and the measures adopted to implement it); (d) where a post cannot be filled by an applicant from an under-represented group because a suitable candidate cannot be found promotion should not ordinarily be denied to a member of an over-represented group without clear and satisfactory explanation; and (d) the efficient operation of the public service.

This decision of the Labour Court was taken on appeal to the Labour Appeal Court inSA Police Services v Solidarity obo Barnard [2013] 1 BLLR 1 (LAC)the appellant contended that the Labour Court erred by finding that Barnard had been discriminated against. Their proposition was that the reason why she was not appointed was that there was an over-representation of white females and her appointment would not enhance representivity at her promotional level. The appellant further contended that the proper implementation of affirmative action entails disregarding entirely the right of members of particular groups to compete for vacant posts until demographic targets are reached and that the National Commissioner (“NC”) possessed unfettered authority to decide whether and when exceptions should be permitted. The Labour Appeal Court found that the Labour Court misconstrued the purpose of affirmative action measures by decreeing that their implementation was subject to an individual’s right to equality and dignity. Malambo JP, held further that the over-representivity of white males and females is a powerful demonstration of the insidious consequences of South Africa’s unhappy past. White people were favoured over other races especially in the public service. This advantage was perpetuated by the transfer of skills, some critical, to the same white race group to the exclusion of others, especially blacks. The over-representivity of whites for the position that Barnard applied is a stark reminder of our past and indeed the present and yet another wake up call to break decisively from these practices. These are practices that can be effectively broken by embracing the restitutionary spirit of the Constitution.

The Supreme Court of Appeal granted Solidarity special leave to appeal the decision of the Labour Appeal Court and this matter will be heard before the SCA in due course (see Solidarity obo Mrs RM Barnard and SAPS unreported: 906/2012, 7 February 2013 (SCA).

In the case of Solidarity obo MPN De Sampaio v City of Tshwane Metropolitan Municipality unreported JS950/11, 17 November 2011 (LC) it was ruled that employment equity should not have been applied in filling the Tshwane Municipality’s Deputy Director position. De Sampaio, a white male applied four times for the position in which he had been acting in a temporary capacity for three years. He was never considered for the position due to the municipality’s implementation of affirmative action. The position was left vacant and no suitable candidates were interviewed. De Sampaio approached the Labour Court alleging that the municipality’s actions amounted to unfair discrimination on the grounds of race and he further argued that the municipality’s affirmative action policy was not in line with the EEA. The Labour Court, ruled in favour of De Sampaio. The municipality was ordered to shortlist De Sampaio for the vacant position. In addition, the municipality was ordered to invite De Sampaio for an interview with the interview process to be conducted in a fair and consistent manner taking into account De Sampaio’s qualifications, experience, suitability, but excluding equity considerations. Should it not appoint De Sampaio to the position, it had to provide Solidarity Union with reasons for its decision in writing.

Previous Developments

It is interesting to compare the above recent cases with a few earlier decisions.

In Stoman v Minister of Safety and Security and Others (2002) 23 ILJ 1020 (T) an application was made to the Transvaal High Court (“HC”) to review and set aside a decision by the SAPS not to promote Stoman, a white male who was awarded the highest score from all applicants who applied for the position. This case consideredthe constitutional recognition of affirmative action measures designed to protect and advance previously disadvantaged people or categories of persons. The HC held that the black population group had been disadvantaged by unfair discrimination and concluded that the aim is not to reward the black candidate, Sethlare, who was appointed to the position applied for, as an individual but to advance the category of persons to which he belongs and to achieve substantive equality in the SAPS as an important component in South African society. Similarly, the HCheld the aim is not to punish or otherwise prejudice the applicant as an individual, but to diminish the over-representation which his group had been enjoying as a result of previous unfair discrimination.

In the case of Harmse v City of Cape Town (2003) 24 ILJ 1130 LC an employee, Harmse, from a designated group alleged that he was discriminated against in that he was not shortlisted for a number of positions advertised by the City of Cape Town because of his race, political beliefs and because of his lack of experience even though he was a suitably qualified employee from a designated group. The respondent appointed two white males to three of the vacant positions that were advertised. The Labour Court, came to the conclusion that affirmative action was a “right” in the hands of an employee from a designated group and further contended that when an employer adopts an employment equity plan that regulates appointments and promotions, then the employees may have a legitimate expectation that the employer will act in accordance with the employment equity plan.

In the case of Alexandre v Provincial Administration of the Western Cape Department of Health (2005) 6 BLLR 539 (LC)the applicant, Alexandre, a white male engineer applied unsuccessfully for a promotion to a higher position and a Coloured male, Mathys, was appointed. The applicant contended that he was unfairly discriminated against on the ground of race and he further claimed that the successful candidate was far less qualified then he was and he was given the impression that he would be “preferentially promoted”. The Labour Court held that the appointment of a Coloured male would achieve a preferable affirmative action outcome and regardless of whether his race was primary or secondary consideration his appointment redresses the disadvantage he experienced in the employment context as a result of being classified as Coloured under the previous apartheid dispensation.

From the above cases, one can easily see that there is inconsistency in the application and interpretation of affirmative action measures by our courts. Accordingly, the judges in some instances have adopted the approach that affirmative action measures and race should not be the only criteria for appointments in the workplace. In other instances, the judges have adopted the approach that employers must ensure that affirmative action measures override the entire recruitment or promotional process as this serves a national objective of rectifying the past imbalances in the workplace.

Is Affirmative Action Creating Discriminatory Barriers within Designated Groups?

Even more alarming is what has emerged a recent trend that demonstrates a possible shift from“inter-racial” inequality to “intra-racial” inequality even within the designated groups.

A case in point is Naidoo v Minister of Safety and Security JS 566/2011, 15 February 2013 (LAC) the applicant, Naidoo, an Indian female applied for a senior position as Cluster Commander with the South African Police Services (SAPS). Naidoo, was placed second on the shortlist and the candidate that scored the highest results, Motlhala, an African male, was recommended for another position. This then meant that Naidoo was automatically placed first on the shortlist. Her appointment would have enhanced employment equity as she was part of a previously disadvantaged group. The SAPS appointed another African male, Maswanganyi (who scored the fourth highest result), to the position as they were of the view his appointment would address the under-representation of Africans taking into account the national demographics. In this particular case, the SAPS had designed an employment equity plan that was not promoting equitable representation within each occupational level. It was contended that the very purpose of employment equity is to redress the effects of past discrimination suffered by members of the designated group. Its purpose is not to create new de facto barriers of employment. The fact that the barrier is created and results in a person from a designated group suffering discrimination both on grounds of race and gender is perverse. The LAC ordered the SAPS to promote Naidoo and it was found that she was discriminated against on the grounds of her race and gender

A current case before the Cape Town Labour Court is February and Others v Department of Correctional Services (DCS) 368/2012 May 2012 (LC)which has sparked public protest and media coverage. In this case, February, a Coloured male who was acting in a position of Senior State Accountant for extensive periods of time was nominated as the best candidate for the particular position by an interviewing panel, the DCS, on the grounds of its affirmative action plan, refused to appoint, February, because an African candidate had to be appointed. February, contended the only reason he was found unsuited for the position was the fact that he was a Coloured male. The DCS admitted applying the national demographics in the Western Cape and stated that Coloured males were over-represented.February, is currently arguing that the DCS’s employment equity plan differentiates between members of designated groups on the basis of their race, and sets targets that, properly analysed constitute nothing but a compendium of absolute quotas. The Labour Court has not handed down judgement in this case.

The EEA certainly does not provide for disparate treatment of members from a designated group on the basis of degrees of disadvantaged suffered in the past within and between designated groups.

What is required is a decision from the Constitutional Court on how to apply affirmative action measures in the workplace.

Olivia Eleanor Timothy is a HRD Practitioner at Werksmans Attorneys.

LLB (University of Kwa-Zulu Natal) and LLM Labour Law (University of South Africa).