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 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.BACK TO TOP