As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The decision by the Labour Court in Barnard vs SAPS did not come as a surprise. In effect the Court found that the SAPS had unfairly discriminated against Barnard by declining to approve her promotion merely because she happened to be white, despite the fact that she was recommended for such a promotion. What is surprising, perhaps, is that the SAPS lawyers contested the case at all.
Both the Constitutional Court and the Labour Court have already made clear that although affirmative action is constitutionally mandated and sanctioned by the Employment Equity Act, representativity cannot be the only criteria used to decide on the appointment or promotion of an individual. The Employment Equity Act had to be interpreted in the light of the Constitution – especially section 9(2) of the Act which prescribes at least three conditions for a valid affirmative action policy.
As the Constitutional Court found in the case of Minister of Finance v Van Heerden, for an affirmative action plan to be valid there had to be a plan (not random preferential treatment) in which the overwhelming majority of the group targeted for advancement had to consists of individuals who belonged to a group who had suffered from past unfair discrimination.
Second, the measures had to be designed to protect or advance those disadvantaged by past discrimination. This meant that the measures had to be reasonably capable of achieving its goal. If the measures were arbitrary, capricious or displayed naked preference it would not be constitutionally valid.
Third, the measures used had to promote the achievement of equality in the long term. While the achievement of this goal may often come at a price for those who were previously advantaged (in other words, whites), 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. In assessing therefore whether a measure will in the long-term promote equality, it should be asked whether the measures constituted an abuse of power or imposed such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened.
The Employment Equity Act reflects this careful balance struck by the Constitutional Court between the important goals of correcting past injustices and challenging inherent pro-white racial bias in appointment and promotion on the one hand, and guaranteeing respect for the human dignity of excluded individuals on the other.
The Act places a positive duty on employers to implement corrective measures but places several limits on the way this could be done.
First, it could not be done through the imposition of rigid employment quotas but rather had to be done by setting (and trying to meet) certain targets for each category of employment. Second, where there were inherent requirements for a job and members from designated groups (blacks women, the disabled) did not meet these requirements, white (often male) applicants who did meet these requirements could be appointed. Lastly, employment policies or practices which had the effect of placing an absolute barrier on the appointment or promotion of white employees would not be allowed.
In the case of Barnard she applied twice for a promotion. Twice she was recommended for the promotion and twice this recommendation was rejected by police management because her appointment would not have advanced the achievement of the race targets for that level of employment in the SAPS. Twice no other appointment was made despite the fact that other ostensibly suitably qualified candidates with far lower scores than Barnard had applied.
It is important to note that the panel which recommended Barnard’s promotion seemed to have been slightly confused. While it found that some black applicants were suitably qualified for the post (but not as qualified as Barnard), they also found that if any of them were appointed “service delivery” would have suffered. This suggests that the other applicants were not really suitably qualified, a view that the National Police Commissioner seemed to have endorsed by failing to appoint any of the other candidates, thus leaving the vacancy unfilled.
The Labour Court found that it was not rational to leave a post unfilled merely because the appointment of suitably qualified white candidate would not have advanced the employment equity goals of the employer. Where service delivery would suffer if the black applicant was appointed over a more qualified white one the white candidate had to be promoted. As I read the judgment, the question was really whether there were suitably qualified black candidates to appoint. In this case there were none because the appointment of any of the black candidates would have impacted negatively on service delivery, so the post was left vacant rather than appoint the white candidate. This was impermissible.
If a suitably qualified black candidate had applied (in that his or her appointment would not have negatively affected service delivery) it would have been perfectly legal to appoint that black candidate over the white candidate – even where the selection panel thought the white candidate was the best candidate for the job.
The judgment therefore has an important but limited effect on the way in which the application of affirmative action should be understood. It does not constitute a rejection of affirmative action, but merely confirms, first, that an unqualified black candidate could not be appointed above a qualified white candidate, and second, that a white candidate could not be denied appointment merely because no suitable black candidate applied for the job.
In my view the judgment therefore strikes the correct balance between the need for affirmative action, on the one hand, and the need for effective service delivery on the other. “Merit” (however one might define this nebulous concept) must play a role, but it must not play the only role when appointing or promoting members of the civil service or police. Race must also play a role, but it cannot play the only role when appointing or promoting members of the civil service or police.
The problem with affirmative action is that these rules are often ignored when affirmative action is used as a smoke-screen to hide nepotistic or corrupt appointments of friends and family members who are not qualified for a job. It’s the employment equivalent of Julius Malema’s company obtaining R140 million worth of tenders in Limpopo despite not having any obvious qualifications to deliver the work contracted for. Opponents of affirmative action point to such cases to challenge the correctness of applying affirmative action at all. In this they are wrong.BACK TO TOP