The South African Police Services (SAPS) yesterday agreed to an out of court settlement with four chemical analysts at the SAPS forensic laboratories after the four challenged a decision not to promote them to the rank of Captain, despite the fact that the post were left vacant because no suitably qualified black candidates could be found. As part of the settlement they have all been promoted and this promotion was back-dated to the time when the promotion was denied.
The SAPS argued that it kept the posts vacant as part of an affirmative action strategy but after employing real lawyers to advise them on the case, they suddenly settled the case (perhaps to avoid a precedent setting judgment on the matter?) and this settlement was made an order of court.
The case clearly demonstrates how affirmative action should not be handled and how the state often uses affirmative action unlawfully to block the appointment or promotion of white candidates – embracing a view of transformation that is clearly not in line with constitutional jurisprudence and the ethos of non-racialism so movingly espoused by President Zuma just a few days ago (although the SAPS approach might well be in line with the views espoused by some Judicial Services Commission (JSC) members in recent interviews).
In Minister of Finance v Van Heerden the Constitutional Court – in a ground-breaking judgment by Deputy Chief Justice Dikgang Moseneke – dealt comprehensively with the requirements for any constitutionally valid corrective measures, whether in the labour field or in any other field, and made it clear that such measures (also called “affirmative action”) would not easily be declared unconstitutional. At the same time the Court emphasised that not all measures taken in the name of affirmative action would be constitutionally valid.
As I interpret it, the Court set out four requirements which had to be met by affirmative action measures to past constitutional muster. First, the different treatment had to form part of a broader plan or programme to correct the consequences of past unfair discrimination. Ad hoc, nepotistic or piecemeal measures taken on the spur of the moment to benefit a family member or friend of the Minister, say, would not do. I will assume that in this case the SAPS left the posts vacant as part of a broader programme to correct for past racial discrimination and oppression and that the first requirement was therefore met.
Second, the programme mentioned above was required to be “designed to protect and advance a disadvantaged class”. The overwhelming majority of those targeted for advancement by the programme had to belong to a group previously disadvantaged by unfair discrimination. This means a programme could target a group because of their race, gender, sexual orientation, disability or HIV status and as long as the overwhelming majority of those benefiting from the programme belonged to the group disadvantaged in the past by unfair discrimination, the second requirement would have been met. Here only blacks – broadly defined- benefited from the programme (in as much as anyone really benefited from it) so I will assume that this requirement was also met.
Third, the measures had to be “designed to protect or advance” those disadvantaged by unfair discrimination in the past. Although it was difficult to predict whether measures would achieve their goal, the court said the measures had to “be reasonably capable of attaining the desired outcome. If the remedial measures are arbitrary, capricious or display naked preference they could hardly be said to be designed to achieve the constitutionally authorised end. Moreover, if it is clear that they are not reasonably likely to achieve the end of advancing or benefiting the interests of those who have been disadvantaged by unfair discrimination, they would not constitute measures contemplated by” the Constitution.
In this case, the third requirement was clearly not met. There was no link between leaving posts vacant and correcting for past racial discrimination in the SAPS. Leaving posts vacant would just hamper the fight against crime without correcting for anything. The measures also seem arbitrary and capricious, given the fact that it in effect placed a complete ban on the promotion of suitably qualified white members of the SAPS and could therefore be interpreted as no more than reflecting a spiteful need to punish white members of the SAPS for being white.
Lastly, the measures were required to promote “the achievement of equality”. Determining whether a measure will in the long run promote the achievement of equality requires an appreciation of the effect of the measure in the context of our broader society. Although it had to be accepted that the achievement of this goal may often come at a price for those who were previously advantaged, it was also clear that the long-term goal of our society is a non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity.
Central to this vision is the recognition that ours is a diverse society, comprised of people of different races, different language groups, different religions and both sexes. This diversity, and our equality as citizens within it, is something our Constitution celebrates and protects. In assessing therefore whether a measure will in the long-term promote equality, we must bear in mind this constitutional vision. In particular, a measure should not 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 this case, this last requirement was clearly also not met as it imposed a substantial and undue harm on white SAPS members, made them feel unwelcome in the Police and thus made them feel less worthy of equal concern and respect. Because the police in effect applied the affirmative action policy in such a way as to completely exclude whites from promotion, it far overstepped the boundary of constitutionally permissible corrective measures and had clearly acted unconstitutionally (and, it must be said, in contravention of the Employment Equity Act).
It is a pity that the case was settled. This means no new precedent was set by the legal action taken by the four SAPS members. State institutions may therefore well continue to discriminate unfairly against white applicants for posts or for promotion. It is clear that those who design and enforce affirmative action policies do not always understand that the Constitution prohibits displays of naked racial preference and that the laudable goals of transformation must be achieved within the disciplining framework of section 9 of the Constitution.
Next time just provisionally ABANDON the vacant post!
I also think that had the chemical analysts elected to run their suit, it might have set an important precedent.
I certainly think that corrective measures which are implemented with a view to addressing the results of unfairly discriminatory practices are worthy – if somewhat regrettably tough on some people.
But if those decision makers who purport to implement such measures are not held to constitutional dictates, then regardless of how worthy the implementation of corrective measures may be at the heart of it, our solution would, as Moseneke DCJ eloquently expressed, merely imperil the ultimate object which it is supposed to help realise. And that would not be very helpful at all.
So while I am glad that the analysts are able to enjoy the relief which they sought, I think we as a society have missed out on an opportunity.
Leigh // Aug 19, 2009 at 1:42 pm
“I think we as a society have missed out on an opportunity.”
It is such a pity south africa is so obssessed with racism because clearly no one is winning here. The mentioned case with the SAPS just proves it.
One wonders now of the judiciary
“in effect applied the affirmative action policy in such a way as to completely exclude whites from promotion, it far overstepped the boundary of constitutionally permissible corrective measures and had clearly acted unconstitutionally (and, it must be said, in contravention of the Employment Equity Act).”
we witnessed major attacks in the interviews with a lesbian and a one arm bandit and whites and one accused of being affliated in the pass to another party and so on. Is the JSC not in danger of over stepping its constitutional boundary on permissible corrective measures with regards to its drive on transformation?
Chris, I think that some of the lines of questioning observed at the interviews for judicial appointments do suggest that the JSC could be in danger of breaching constitutional boundaries.
I shall add to that disquieting possibility by saying that the JSC’s apparent aversion to transparency seems to further sustain that view.
And to complete the admittedly bleak picture which I have made out, let me just say that perhaps the truly alarming point as regards the JSC is that apparently we cannot even count on prominent lawyers to honour the Constitution’s content.
So even though at this rate I will probably never see a comprehensive definition of transformation, I am pretty sure that transformation ought to at least observe the provisions of the Constitution. And it appears that we see precious little of that.
Affirmative Action has lost its essence. It has been subject to scathing abuse. I do think, however, its objective has not been achieved albeit coming at the pain of the other race group.
Leigh // Aug 19, 2009 at 2:28 pm
Ill agree i wont be surprised if many white females or white males wouldnt even be bothered to go through the interview process, in fear of being attacked and there name dragged through the mud all because of a color of skin?
since we on about race and equality this week, I think the government and its party and its parties buddies is actually very lost on transformation.
We have cosatu now who is challenging Zillie in court I think on the 28th of August this may be a procedural issues meeting at first but they challenging a “Woman” not a man but a woman on eqaulity esp on her choice of cabinet?
maybe not lost but lost on implamenting it
we are still far from realising the ideals that affirmative set to achieve, as those who have economic power continue show resistance to the application of this noble societal goal which epitomizes equality.
Mphahlele, I would happily concede that the realisation of societal equality is a noble object. But that being said, I do hope you can acknowledge that there may be a host of factors that impede the realisation of corrective justice – not just the possible resistance of economic power players.
The argument isn’t about whether AA has achieved what it was
established for (“the achievement of equality”), but merely that its use must not be abused in order to create new hegemonies.
Wasn’t precedence already set in Coetzer& others V Min of Safety and Security ….?
The inner managerial core of the S.A.P.S. is the “vrotkol”.
I mention two instances: In basically 100% of all investigations leading to prosecution there is an arrest. As if it is an inherent part of policing or detective work. But in 50% of the cases it is not necessary. The suspect could be warned to appear in Court and would. These arrests result in a clogging of the Courts – and in Courts set aside just to do bail applications. But the real reason for those arrests is the police promotion system and employee evaluation systems. Their internal “labour relations” system: The more arrests you made, the better cop you are and the better the chances of promotion. So they must arrest, to notch up figures, to qualify for promotion or incentives. Never mind the unnecessary loss of freedom, the atrocities that happen in holding cells or the effect on the criminal justice system and the Courts. (But vide the groundbreaking Full Bench decision in Le Roux vs Minister of Safety 2009(4) SA 491 (NPD) by Judges Msimang and Madondo).
And their crime statistics. What a national furore over it. They try to get it lower. For politicians to prove the crime situation is improving. Now you get the situation that the statistics at stations are “cooked” to portray a better picture (for the sake of the politicians, and their superiors). And it seems they also pick not to attend to crime scenes so not to have another statistic on the books. But rather they should give statistics of how much (more) crime scenes they attended, and how much (more) investigations they concluded. Not to prove that the crime situation got worse, but to show (statistically) how they are doing their job. The public don’t want to hear that crime is down – they want to hear (statistically proven) the police are all the more and better doing the job.
In a conversation with a Senior Magistrate lately (she specialises in crime) she told me that she (and she sits in one of the biggest townships in the country) is not nearly under such pressure (workload) as ten years ago. She actually has free time during the court days. A laid-back job. And she attributes it to what she calls “under policing”. Crime waves outside the Court, but the cases don’t reach the court room.
?
my view is based on the current prevailing cognitive dissension amongst white people as to whether black people are capable or not?? of which a segement still believes that we are not. what i want to find out from my fellow white counterparts is, since we all recognise the noble intentions of the system, how do we implement it??
This was published in FinWeek,20 Aug,pg 7:
“Anglo (American) doesn’t struggle to attract black talent but it loses them quickly. That’s not because of Anglo, it’s because they’re hopelessly incompetent.”
Can someone lucidly explain this pessimistic understanding of our competence as black people?
Mphahlele is surely right. The so-called absence of “suitably qualified” black applicants is an excuse for racist affirmation of whites.
Apartheid education may have been bad. But was it really SO bad that it produced an actual shortage of senior forensics specialists, or, for that matter, of doctors, lawyers, pilots, neurosurgeons, actuaries, etc?
Also: So-called “standards” are but flimsy pretext for black exclusion. After all, a “standard” is only a social construct. And everyone knows that the concept of “merit” lies at the very heart of the indeterminate discourse of oppressive hierarchy. .
The debate re chemical analysts at SAPS labs is a good example. Why should a democratic police service confine itself to Western “scientific” methodologies, as imposed upon Africa by colonialism? And what is wrong with traditional methods of forensic investigation?
There is a heated debate going on in the room below this one … “On Amnesty and its consequences”.
One of the biggest mistakes (and there are many) our country made was to allow the institution of the Police Service to essentially remain after 1994. It had the worst reputation (only upstaged in the rankings by the Gestapo and KGB) and yet we continued to let it take a significant role within the new South Africa.
Attitudes and Perceptions within (and outside) persist and can be said to have caused these state of affairs (mentioned above).
The Scorpions was truly a leading light in not only the fight again crime but getting South Africans for almost the first time had belief in a credible law enforcement agency. Now we still stuck with the “BOERE” and songs from “FOKOF POLISIEKAR”.
Henri, with respect, I am not sure what your post has to do with the issue of constitutionally impermissible implementation of corrective measures.
But I shall pick up, if I may, on what I read as being a fairly central message in your post: alleged offences are not effectively investigated.
You may have a point. But let me admit that the true reason as to why I have latched on to your point – even though I respectfully think that it departs somewhat from the core theme of this post – is that I think the criminal justice system is forced to operate under circumstances which I expect make the procurement of justice more difficult than it should be.
In case you are interested, I recently spoke to a friend who earns a living in the courts as a prosecutor. And I have it from my friend that prosecutors may be called on to try three or four cases in a day.
Now I do not care how gifted a lawyer the prosecutor may be. Trying so many cases in such quick succession would be far too much for even a team that comprised Sydney Kentridge as lead counsel with Harold Hanson returning from the grave to graciously act as his number two.
So while would enjoy looking at your views on what appears to me to be the central cut of this post, I thank you for sharing your views on a general topic which strikes a cord with me too.
“Can someone lucidly explain this pessimistic understanding of our competence as black people?”
As our Bok Coach said after making his Black/White Mechanic analogy …
“That’s the way it is in this country”.
But what i can say is that we will never begin to fathom the true effects that colonialism and later Apartheid did to our society.
Chris
Good advice, let them stay clean and not apply for postions in the bench. Let us also forget that people were members of Consevative Party and we were all not aware of apartheid govt activities.
This is a new S.A and the playfield is level. You can be anything u want black or white. Whites will sell stakes of their companies to elite blacks and hire others in non core positions. We the 10% will employ and suprvise you the 80% and sustain others via our taxes. You can be incharge of government and parastatals but nothing else. We control procurement in the private sector but we will not allow to you use preferential procurement in public sector, just 10% bee.
You try and have BEE and AA and we will punch holes in it until it is deflated and we hope you will stop trying.
We will find faults at everything you because we know how to do things best. Let us also keep the springbok clean and Smith is doing both the coaching & captaining.
We have stoped calling u names and sit with u inside the bakkie. We will scare people that you cannot be trusted with the constituion. By virtue of our race we will be better at anything we do.
That is the new South Africa that will be good for all of us. Everyone has an opportunity, Yeehaa!!!!!!!!
Amen.
Mabitsela, let me assure mate that whoever communicated the sentiment which you quote is probably hopelessly narrow minded – and a right bigot to boot.
But I do have a question for you and, if you are at all interested in considering it, I hope you will forgive me for taking a bit of time to build towards it.
I have met many talented people from a great many backgrounds. And my experinece in this regard makes it difficult for me to see how the muppet that you quotes could seriously relate the sentiment in question.
But I would ask you this: if it is true to say that most corporate environments are overpoweringly eurocentric, and that some very competent black professionals are so uncomfortable in such environments that they find it difficult to acquit themselves as well as they undoubtedly could, what are the possible solutions to that problem?
Is ass-kissing an option?
mphahlele // Aug 19, 2009 at 3:39 pm
“since we all recognise the noble intentions of the system, how do we implement it??”
That is the question and that is what we need to start exploring.
am afriad being sarcastic like Gwebecimele really doesnt help.
Mabitsela // Aug 19, 2009 at 3:43 pm
Can someone lucidly explain this pessimistic understanding of our competence as black people
black people are extremely competent look at the world and see what black people have achieved with regards to Civil movements right up to even joining there white counterparts into space.
I also do think south africa in general is to hard on its self.
@ Harold
some have taken the ass-licking route, whether it works for them i dnt know.
@ Leigh
What sort of factors imepede the realasation of this goal?
Harold, I was hoping to elicit solutions aimed at remedying two sorts of problems – and no, ass-kissing should not be an option given that it is a feeble approach which gives rise to fresh difficulties.
The first type of problem is what many might label systemic difficuties. But in truth I am not all that interested in solution thereto for present purposes given that there may well be a limit on the extent to which individual employees could effect systemic change.
I am far more interested in what bloggers could offer as regards ways in which individuals could effectively tackle very distressing difficulties in the work place.
Let me sketch out a scenario: a black professional faces peers who doubt her competence. She is bright but finds that the additional concern of having to refute the assumption of incompetence makes it difficult for her to bring a positive attitude to her work. Her performance and general well being both suffer.
What might she do? Does she knuckle down and hope to win over her peers?
Does she calmly but firmly approach either her peers or employers with a view to outlining her perception of her treatment in order to draw their attention to the problem? And if she opts for this approach, how might she prepare herself to do so? And should she write a letter to get her message across or do so in person?
My suggestions are hardly groundbreaking – I would be the first to acknowledge that. Rather my aim here is to encourage bloggers to offer any insightful solutions which they may have so that their fellows can potentially benefit.
Mphahlele, thank you for getting back to me. I do not think you and I have had an exchange oh this blog and if my memory does not betray me on that score, let’s try to make this a good one
I think that, given the content of your initial post in this discussion, I am quite justified in framing your question to me as follows: what factors apart from resistance from economic power players might impede the realisation of constitutionally contemplated corrective justice?
I would proffer three further obstructing factors. For the first, I shall offer a statement of a core message in the Professor’s post: arbitrary or irrational implementations of corrective measures serve as impediments inasmuch as they are counterproductive.
Secondly, a concomitant (although potentially distinguishable factor) is that influential people may simply not understand certain important qualities that corrective measures ought to reflect.
And thirdly, I tend to think that people may fail to identify sufficiently innovative (but still effective) means to transfer skills in cost effective ways. That is, I wonder if the powers that be are working hard enough to identify the right questions.
The reality is that we are all digging our heels either is the push for or resistance to transformation. In doing so, we might actually be breaking the law.
There are a number of cases in the public sector where precendent has been set by courts in the implementation of affirmative action and the limits of what is allowed as per EEA. These cases have shown that there is not much wrong with the law, only its implementation tby those who are either ignorant of the law or arrogant as to go beyond the scope of the law.
In the private sector, companies continue to stiffle the progress of black people. This is done in many ways and sadly those on the receiving side of this injustice are often unable or unwilling to take up cases. Those at the receiving end of such injustice do not black the laws but understand that some of their white colleagues, are just refusing to respect the rule of law. Added to this is a general misperception by a number of whites that black are incompetent. However the competency of whites is never questiond even if there is evidence of whites being incompetent. When one listens to some whites argue on important issues of the country, one wonders how they can claim to be competent in their jobs as some can hardly make logical and informed arguments.
But in the end and by any means necessary, the inequalities of the past will diminish, race will not be a determinant of one’s opportunities and progress and our country will prosper.
@ Leigh: In one of the blogs l made mention of a fact that White people need change their impossible attitude. When they will be able to do that is for anyone to speculate. I am certain that you are conversant of the fact that mainstream corporate world of SA is monopolised by Whites. As a result when Black attempt entering the market they make it difficult for them.
Mabitsela – if you insist on labelling all white people as having an impossible attitude, no matter how hard some of us try to dispel thay myth, then guess what – that’s what you’ll get…it’s generalisation based on your perceptions of a skin colour, also called racism.
Collosomo – your argument on standards is ignorant, forgive my bluntness. I tell you what – you are going for a medical operation, which is high risk. Would you like a doctor who graduated from a university with “standards” to operate on you, or would you be willing to have a doctor who had read a medical textbook and bought a certificate online to operate on you? I for one would prefer a doctor who I knew had adhered to a particular internationally recognised set of standards, and had been able to satisfy them.
Standards are not an excuse – look at the civil service. Standards are routinely overlooked in favour of politically correct appointees. Off you go to Home Affairs and see how much fun you have there.
As for “western” forensics, please tell me how a traditional African forensic investigation would differ from a “Western” one? Would we bring in a sangoma? As I recall, Shaka had a few of them put to death when their forensic investigation happened to produce a completely false result – would that make Shaka counter-revolutionary?
Is it honestly better that hospitals and police services sit without doctors and policemen because there are no qualified black candidates available? How does this benefit the poor and vulnerable? Or should we watch the poor (majority black, in SA) bleed to death on hospital floors in the name of transformation? Professionals of all races are leaving the country in droves to work overseas – the ones who choose to remain behind for whatever reason should be punished if they are the wrong skin colour?
AA is a good concept when it is implemented as a ground up concept. Unfortunately, very few people seem happy with the idea of actually having to work for something with support, and then get a nice job – they want pass marks lowered, they want experience requirements waived…that’s never going to right the wrongs of the past. With the right to equality and the right to privelege previously denied also comes a personal responsibility to ensure that you are diligent about improving yourself – your education, your work situation, etc…AA cannot be a top-down handout simply because you are black. That will only ever perpetuate stereotypes and racism, from all sides of the spectrum.
@leigh: I agree completely. But lets talk about what is transformation. Also, have you seen: http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=140044&sn=Detail
where can I sign.
Prof, make this national.
@Henri: outstanding. Lets those in the know start to speak, without fear, favor or prejudice, even if you need a handle.
Sirjay, thank you for both your response and the link to a piece which I found to be very enjoyable.
I am glad that you want to discuss possible definitions of transformation. It seems that we rarely progress to the more challenging investigations on that score – which is I suppose understandable for several reasons.
So I am going to suggest that you and I assume for the moment that one core aspect of transformation is that some sort of meaningful liability should lie against public officials that betray constitutional values. And yes, I am thinking about members of the JSC.
For that substantive aspect of transformation to become a societal fixture, I think that the ANC’s pre-eminence cannot continue to be all but assured. And I think that if we are to see the establishment of a culture of accountability, the opposition parties are going to have to find the key. That is, I think it may be the case that the ANC would be less inclined to ignore the more irksome implications of the rule of law if it was less sure of itself. And incidently, that is precisely what I find so annoying about the ANC: much of its behaviour suggest that its members are quite smug.
My views here are hardly novel. But if there is any truth in them, I wonder if our society is ready for transformation. You see, a reasonably progressive bench which is sensitive to constitutional demands is an important condition for transformation – if by transformation we loosely mean societal progression towards the establishment of a South African community which reflects constitutional values. But I think that perhaps an even more important condition is transformation of the electorate.
And maybe temporally we are still a little too close to the struggle for us to realise that even though corrective measures are often necessary, only a fool tries to walk backwards into the future.
Henri’s detailed analysis shows why/that central control and socialism must fail.
Of course some institutions, like the police, MUST be national and centrally controlled; and suffer the resultant effects.
Even the UK has reported ‘over time scams’ in the cops.
But Africa is disasterously incompetent at centally controlled institutions, like police.
OTOH the free-market works marvelously in Africa.
This is the same insitution who banned/froze promotions among volunteeer Police Reservists several years ago for a few years (who gave their time for free) in favour of affirmative action candidates, even if there were no affirmative candidates who had bothered volunteering in that particular community.
And they wonder why I and many others resigned as police reservists never to return…?
Good luck to these racists…they deserve all the ridicule they get….!
You have to be clever to be so short-sighted…!
Can’t wait for SMART (Social amaovement Against Racial Tendencies) & BMF to take up similar cases and also bring relief to our depressed Professionals rather than cherry picking on Gama, Maroga and others.
Way to go Solidarity!!!!!!!!!!!
http://www.busrep.co.za/index.php?fArticleId=5369524&fSectionId=552&fSetId=662