Solidarity obo Barnard v South African Police Service (165/2013) [2013] ZASCA 177 (28 November 2013)

:

‘The appointment of Captain Barnard will not enhance representivity on salary level 9 but it will not aggravate the current Divisional Representivity figures as she is already part thereof. Appointing the candidate on salary level 9 will however enhance representivity on salary level 8 in respect of the over-representation of white females on that level. Irrespective of the difference in percentage between the first and second choice candidates, Capt Barnard was the only candidate that during the interview displayed an unique blend of passion and enthusiasm to deal with members of the community that are unsatisfied with the services rendered by the South African Police Service. During the interview, she also displayed a high level of commitment towards the SAPS and an eagerness to contribute towards enhanced service delivery.’(My emphasis)

34. It is necessary to record that, after post 4701 was advertised, the SAPS issued guidelines for equity targets for the 2006/2007 financial year which were said to be in line with the EEP. It was agreed between the parties that the table set out hereafter correctly sets out the SAPS employment equity targets and the race and gender representivity levels at levels nine and ten:

	A/M	A/F	I/M	I/F	C/M	C/F	W/M	W/F	Disabled	Vacant Posts (REP)	TOTAL
Current	6	6	1	0	1	1	8	6			29
EE Target	13.9	9.2	0.5	0.4	1.6	1.1	2.0	1.3	0.6	1
Over/Under Representation	-8	-3	0	0	-1	-0	6	5	-1
Suggested allocation	1

The table illustrates that, at level nine, white females were over represented by five employees. By contrast African males were under represented by eight, African females under represented by three, and Coloured males and the disabled were each under represented by one. Consequently, the suggested allocation of the positions at levels nine and ten was one to be allocated to an African male. African males were the most under represented category.

35. On 30 June 2006 a meeting was once again held between the interviewing panel and Divisional Commissioner Rasegatla. This time he supported Barnard’s appointment. His motivation, as recorded in the minutes, is set out hereafter:

‘[F]ailing to recognize and appoint this candidate would really send a wrong signal to the candidate. Appointments and promotions are also made to address service delivery, and if the candidate in two years constantly applies for the post and is constantly rated and recommended as the best candidate, it clearly indicates that she is the best candidate for promotion. Other candidates who would have improved representivity within the Division had approximately one year to improve on themselves to compete with the recommended candidate. However, she still beat them.

The panel strongly believed that in the interest of service delivery, and having denied this candidate the opportunity for promotion during the previous promotion phase, that the candidate should be appointed as recommended by the respective promotion panel.’

36. Rasegatla’s written recommendation dated 10 July 2006 to the National Commissioner that Barnard be appointed to post 4701 read as follows:

‘The candidate is recommended as the panel’s first choice candidate for the post. She has proven competence and extensive experience at National level in the CORE functions of the post and was rated the highest by the promotion panel. She obtained an average rating of 85.33% whereas the second choice candidate, obtained a rating of 78%. The appointment of the candidate will not enhance representivity on salary level nine but it will not aggravate the current Divisional Representivity figures as she is already part thereof. Appointing the candidate on salary level nine will however create an opportunity to enhance representivity on salary level eight in respect of the overall representation of white females on that level.

The same post was advertised during 2005 (Phase 2/2005/6) but not filled due to representivity. Capt. Barnard was rated in first position in the previous promotion phase and was recommended by the promotion panel and is again rated first by the promotion panel during the current promotion phase.

In terms of the provision of par 13(3) of National Instruction 1/2004 she was not promoted during the previous promotion phase despite the fact that she was the best candidate. As a result, the post was withdrawn and was re-advertised during the current promotion phase. During the current promotion phase she was again among the shortlisted candidates and was, once again rated the best candidate.

Failure to recognize and appoint this candidate would really send a wrong signal to the candidate. Appointments and promotions are also made to address service delivery, and if the candidate in two years constantly applies for the post and is constantly rated and recommended as the best candidate, it clearly indicates that she is the best candidate for promotion.

Other candidates who would have improved representivity within the Division had approximately one year to improve on themselves to compete with the recommended candidate. However, she still beat them.

National Evaluation Service strongly believes that in the interest of service delivery, and having denied this candidate the opportunity for promotion during the previous promotion phase, that the candidate should be appointed as recommended by the panel.’

37. On 20 July 2006 a meeting was held between Provincial Commissioners and Divisional Commissioners to discuss the recommendations for the promotional posts, including post 4701. In respect of post 4701 the following is recorded:

‘The Division: National Evaluation Services, explained why representivity could not be achieved. The chairperson responded that candidates with potential should also be considered - the posts are not critical/scarce skills.

The chairperson concluded the meeting by saying that the recommendations will be presented to the National Commissioner for consideration.’

38. Despite the recommendations, the National Commissioner did not approve the appointment of any of the recommended candidates. In a letter dated 27 July 2006 signed on behalf of the National Commissioner, Divisional Commissioner Rasegatla’s recommendation was responded to. The following are the material parts of that letter:

‘2. After due consideration of your recommendations, the National Commissioner has decided not to approve your recommendations, for posts 4702/4701/4710 due to the following reasons:

• your recommendations do not address representivity; and

• the posts are not critical and the non-filling of the posts will not affect service delivery. The posts should be re-advertised during the phase 2-2006/7 promotion process, during which process you should attempt to address representivity.’

39. It is to be noted that even though the post for which Barnard applied has now been withdrawn due to restructuring, that post was in fact re-advertised after she had been rejected for appointment to post 4701.

40. Now doubly aggrieved, Barnard filed a complaint in terms of the SAPS’ grievance procedure. I consider it necessary to reproduce the written reply to her grievance in full:

‘2. The National Commissioner has decided not to approve the recommendation for post 4701 due to the following reasons:

• the recommendation did not address representivity; and

• the post is not critical and the non-filling of the post will not affect service delivery.

3. The National Commissioner further directed that the post should be re-advertised during the next promotion process, during which process it should be attempted to address representivity.

4. Although the officer formed part of the relevant Business Unit, representivity should be achieved at all levels.

5. With reference to the referral to the lateral placement of a white male at the division, it has to be mentioned that lateral placements are not handled in terms of the prescripts of National Instruction 1/2004 on Promotions.

6. The officer’s attention is also drawn to the fact that in terms of National Instruction 1 of 2004 (Promotions), the National Commissioner is not obliged to fill an advertised post.

7. It has to be mentioned that the relevant post was re-advertised in the phase 2-2006/7 (post 5101) promotion process, but the post was withdrawn and it was indicated that the filling of the post will be dealt with once the restructuring of the Division has been finalized. This decision further confirms the decision that the post is not a critical post and that the non-filling of the post will not affect service delivery.

8. The status quo with regard to the position of the officer is maintained.

9. Please inform the officer accordingly.’

The letter was signed by JJ van Rooyen, Director Section Head: Promotions and Awards.

41. Barnard referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) which remained unresolved. The dispute was then adjudicated in the Labour Court (Pretorius AJ). In the view of the Labour Court, an EEP must be applied fairly with due regard to the affected individual’s constitutional right to equality and representivity must be weighed against that right. Pretorius AJ stated that the right to dignity of affected individuals is also implicated. He reasoned that it was not appropriate to apply, without more, numerical goals set out in the EEP. Such an approach, he said, was too rigid. At para 25.4 of his judgment the following is stated:

‘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.’

42. In the three subsequent paragraphs Pretorius AJ stated:

‘[25.6] There must be a rational connection between the provisions of the Employment Equity Plan and the measures adopted to implement the provisions of that plan.

[25.7] In appropriate circumstances at least, the efficient operation of the Public Service or what is termed “service delivery” is a relevant factor to be taken into account in the implementation of an employment equity plan.

26. The Respondent bears the onus to show that the unfair discrimination alleged by the Applicant is fair. This means that the Respondent must allege sufficient evidence to show, on a balance of probabilities, that its decision was fair. In order to do so the Respondent should place before the court sufficient evidence to enable it to understand this reasoning behind and justification for its decision so that the court is in a position properly to decide the matter.’

43. Based on the facts that the National Commissioner has the power to make appointments of the kind in question, and the recommendations do not necessarily bind him or her, the Labour Court had regard to what it considered to be scant evidence on the reasoning and justification for the National Commissioner’s decision.

44. In this regard, it is to be noted that the only witness who testified in support of the SAPS’ case in the Labour Court was Senior Superintendent Johannes Ramathoka. It is not an exaggeration to say that the nature of his evidence was peculiar. He had no first­hand knowledge of the case or of the various documents such as the EEP and the National Instruction which were put before him. He thus merely confirmed and sought to explain their contents, and often appropriated to himself the right to interpret those documents. He explained the representivity table for levels nine and ten. He was presented with the minutes of the meetings referred to earlier in this judgment and their contents were read to him. It is difficult to discern the purpose of leading the evidence in this manner. Much of his evidence was plainly inadmissible. And that which was admissible carried little, if any, evidential weight. What is clear is that apart from the cryptic statement in the letter signed on behalf of the National Commissioner and the minutes of the meeting at which he was present which mirrored that statement, we have no insight into the National Commissioner’s reasoning and for his failure to respond fully to the motivation by the interviewing panel and Divisional Commissioner Rasegatla. Barnard was the only witness who testified in support of her case.

45. Pretorius AJ stated that in the absence of a fully reasoned decision it was safe to assume that the National Commissioner did not regard the African candidates that were recommended as suitable. He found that the SAPS had failed to discharge the onus of showing that the National Commissioner’s decision not to appoint Barnard was fair. He considered that he had the power to make an order promoting Barnard to the post of Superintendent and did so with effect from 27 July 2006.

46. Aggrieved by that decision, the SAPS appealed to the Labour Appeal Court (Mlambo JP, Davis and Jappie JJA concurring). That court held unanimously that no discrimination had occurred because no appointment had been made. The Labour Appeal Court (the LAC) went on to state that it was a misconception to ‘render the implementation of restitutionary measures subject to the right of an individual’s right to equality’. The LAC took the view that, without restitutionary measures ‘the achievement of equitable treatment will continue to elude us as a society’. Mlambo JP held that the Labour Court had erred in treating the implementation of restitutionary measures as subject to the individual conception of a right to equality. That approach, so he reasoned, ‘promotes the interests of persons from non-designated categories to continue enjoying an unfair advantage which they had enjoyed under apartheid. Treating restitutionary measures in this manner is surely bound to stifle legitimate constitutional objectives and result in the perpetuation of inequitable representation in the workplace’.

47. The LAC found that the EEP bound all of the SAPS’ employees. It concluded: ‘The application of such plans therefore cannot be relegated as suggested by the Labour Court.’ In dealing with Barnard’s claim of discrimination the LAC stated:

‘[W]hen one talks of discrimination, that is one is in fact, alleging that a differentiation of some sorts between and/amongst people has taken place. On the facts of the case before us, there is no evidence of such differentiation. We are here dealing with a matter where no action by way of appointment took place, meaning that no overt differentiation occurred.’

Having already held that there had been no discrimination, the LAC, after considering the SAPS’ quest for representivity, contradictorily said the following:

‘Discriminating against Barnard in the circumstances of this case was clearly justifiable.’

48. Mlambo JP stated that it could not be argued that the EEP sought the appointment of only black employees irrespective of other criteria. He noted that one of the criteria in the EEP is suitability and went on to state:

‘That to me suggests that should a black candidate be unsuitable that candidate will not be appointed. This is also defined in National Instruction 1. Clearly, as was aptly argued by counsel for the amicus, the Employment Equity Plan does not sanction mediocrity or incompetence. Manifestly this was not the case with the two black candidates in this case.’

49. The LAC held that the Labour Court’s conclusion that the failure to appoint Barnard compromised service delivery was unfounded. In this regard Mlambo JP stated that since the National Commissioner is the accounting officer for the SAPS, he is the only person answerable for service delivery. In this regard the court concluded as follows:

‘It is not open to a court to dictate to the National Commissioner that he is compromising service delivery and should fill a post.’

In the result, the LAC upheld the appeal by the SAPS and set aside the Labour Court’s order, substituting it with an order dismissing the application. That decision is before us with the leave of this court.

50. I turn to consider the correctness of the LAC’s decision. The starting point for enquiries of the kind under consideration is to determine whether the conduct complained of constitutes discrimination and, if so, to proceed to determine whether it is unfair. ⁴ When a measure is challenged as violating the Constitution’s equality clause, its defender could meet the claim by showing that it was adopted to promote the achievement of equality as contemplated by s 9(2), and was designed to protect and advance persons disadvantaged by prior unfair discrimination.⁵ Similarly, as stated above, s 11 of the EEA provides that whenever unfair discrimination is alleged, the employer against whom the allegations is made must establish that it is fair.

51. In my view, the LAC’s conclusion that Barnard was not discriminated against - contradicted in a later paragraph of its judgment - because the vacancy had not been filled, is flawed. In Gordon v Department of Health: KwaZulu-Natal [2008] 11 BLLR 1023 (SCA) Mlambo JA, as he then was, in considering the position where a black candidate was appointed ahead of a white candidate recommended by a selection panel, stated that: ‘It can hardly be contested that the appellant was discriminated against on the basis of his colour and race’. In that case the appeal was upheld on the basis that the Department of Health had no policy or plan in place for the implementation of affirmative action measures and that consequently the discrimination complained of was unfair. In the present case Mlambo JP took the view that the application of the EEA was justification for Barnard’s non-appointment.

52. If a senior African female or male police officer had all of Barnard’s skills and had achieved the same interviewing score, that person would most surely have been appointted to post 4701. It can ‘hardly be contested’ that in the present case Barnard was not appointed because she was a white female. In Gordon the appellant’s grievance, like Barnard’s, was that he had not been appointed when he should have been. The LAC, in my view, erred in holding that the fact that no appointment had been made meant that there had been no discrimination.

53. Of course, if the National Commissioner had appointed one of the African male candidates who had also been interviewed and explained that, although the latter’s interview score was lower than Barnard’s, he was nevertheless suitable for the job and that he approved the appointment as an affirmative action measure, and assuming further that the explanation was borne out by the objective facts, the SAPS would have established that the discrimination complained of was fair and the present debate might well not have ensued.

54. In Van Heerden, Moseneke J reminded us that it is ‘incumbent on courts to scrutinise in each equality claim the situation of the complainants in society; their history and vulnerability; the history, nature and purpose of the discriminatory practice and whether it ameliorates or adds to group disadvantage in real life context, in order to determine its fairness or otherwise in the light of the values of our Constitution. In the assessment of fairness or otherwise a flexible but “situation sensitive" approach is indispensable because of shifting patterns of hurtful discrimination and stereotypical response in our evolving democratic society’. ⁶ (My emphasis.)

55. Having determined that there was discrimination based on a specified ground, namely race, it is necessary to turn to the next question; whether the SAPS has established that the discrimination was fair. In this regard, the Constitutional Court in Harksen stated the following:

‘The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.’

Although that case dealt with direct reliance on the equality clause in the Interim Constitution, the same test, in my view, would apply in relation to reliance on s 6 read with s 11 of the EEA.

56. It will be recalled that the justification on behalf of the National Commissioner for Barnard’s non-appointment was scant. The first reason provided to Barnard and the recommendation panel was that her appointment to the post would not address representivity. Second it was stated that the posts were not ‘critical’ and that the non­filling of the posts would not affect service delivery.

57. Dealing with transformation which encompasses the notion of representivity is not easy. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & others 2004 (4) SA 490 (CC) paras 75 - 76 the Constitutional Court said the following:

‘The commitment to achieving equality and remedying the consequences of past discrimination is immediately apparent in s 9(2) of the Constitution. That provision makes it clear that under our Constitution “[e]quality includes the full and equal enjoyment of all rights and freedoms”. And more importantly for present purposes, it permits “legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination”. These measures may be taken “[t]o promote the achievement of equality”.

But transformation is a process. There are profound difficulties that will be confronted in giving effect to the constitutional commitment of achieving equality. We must not underestimate them. The measures that bring about transformation will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities. It may well be that other considerations may have to yield in favour of achieving the goal we fashioned for ourselves in the Constitution. What is required, though, is that the process of transformation must be carried out in accordance with the Constitution.’

58. To determine whether the discrimination was fair, the facts in this case require closer and scrupulous scrutiny. Regrettably, this is not an exercise that the LAC embarked on. This appeal turns on the facts and it would be presumptuous to assert and foolish to assume that this decision will be a Merlin-like incantation to address the varied cases likely to come before courts in relation to the application of the EEA. In Van Heerden, as stated above, the assessment of fairness is said to require a flexible but ‘situation sensitive’ approach.

59. In making the assessment it should be borne in mind that Barnard herself was part of a designated group, namely, she was female. One cannot ignore that she had previously applied for the same position and not only was she not appointed on the basis of representivity but a white male was moved laterally to fill-in, and the position was re-advertised. Since race representivity within organs of state is graphically obviously apparent, one could rightfully question how appointing somebody temporarily from a non-designated group promotes the employment equity cause and the image presented to the public and the SAPS itself.

60. It is safe to assume that the interviewing panels are constituted to serve a purpose. They are a management tool, comprised in the present case of senior police officers to be of assistance to the National Commissioner when he makes a final decision on whether to fill a vacancy. Thus, one can conclude that even though he is not bound by a panel’s evaluation and recommendation, the National Commissioner must at the very least give consideration to and engage with what is put before him by them.

He discounts relevant and material factors at his peril, rendering him liable to legal challenge.

61. Requiring the input and intervention of a Divisional Commissioner is another useful management tool and is sound policy. It ensures that the person who holds the highest authority in that division and who must be taken to understand the dynamics and needs within his or her geographical area of jurisdiction and within the management structures of the SAPS provides his or her insights to enable the National Commissioner to arrive at a just decision in terms of the EEA and the EEP. As with the input from the interviewing panel it can hardly be argued that the Divisional Commissioner’s views are without value.

62. It is necessary to consider a little more closely the interviewing panel’s motivation for its recommendation, as set out in para 33. It contains more than the fact of Barnard’s superior score which was close to ten per cent more than her nearest rival, which motivated the recommendation. It was also that she ‘was the only candidate that during the interview displayed an unique blend of passion and enthusiasm to deal with members of the community that are unsatisfied with the services rendered by the South African Police Service’. Clearly the panel, which included three senior black police officers, saw that quality as distinctive and one that would enhance the services rendered by the SAPS. Having regard to Barnard’s evidence concerning the nature of the job she was then performing at the NES as a captain, it appears not only that the NES served an essential function within the SAPS, but that the distinctive quality referred to above would be a commendable advantage in the more senior managerial position that she had applied for. Further, the panel saw fit to note as another distinctive feature, Barnard’s high level of commitment toward the SAPS and her eagerness to contribute toward enhanced service delivery. Under cross-examination she was placed in the unenviable position of having to answer questions about whether her rivals for the position did not have the same attributes. What is abundantly clear is that the panel saw these as distinctive characteristics.

63. Equally important is Commissioner Rasegatla’s written recommendation, referred to in para 36 to the National Commissioner, which contained a motivation with factors beyond those stated by the evaluation panel. He took into account that she had already once before been overlooked in relation to post 6903, despite being the ‘best candidate’. He considered it important that upon her second interview she was yet again rated the ‘best candidate’. His concern, understandable because of his rank and managerial position, that the wrong signal would be sent to Barnard is not one that can lightly be discounted. Human resource management both in the private and public sector must be concerned about morale and cohesion within a workforce. Commissioner Rasegatla noted that competing candidates had had a year within which to meet the standard set by Barnard, but failed to seize the opportunity. Significantly, in the last sentence of his recommendation he speaks on behalf of the NES. That sentence bears repeating:

‘National Evaluation Service strongly believes that in the interest of service delivery, and having denied this candidate the opportunity for promotion during the previous promotion phase, that the candidate should be appointed as recommended by the panel.’

64. Counsel on behalf of the SAPS urged us to consider that representivity at level nine was the crucial factor and that any beneficial effect in relation to the lower level which might result because of Barnard’s promotion to Superintendent should be discounted. It will be recalled that both the interviewing panel and Commissioner Rasegatla took the view that, in the event that Barnard was promoted to Superintendent within the NES, it would free up her position at the lower level (level eight) and present an opportunity to enhance representivity within the NES at that level. That idea is not entirely without merit. Barnard’s promotion might thus very well have had the indirect effect of advancing the employment equity cause.

65. If representivity was the genuine driver behind the National Commissioner’s refusal to appoint Barnard and if he thought that either of her two rivals were deserving of appointment, the compelling conclusion is that he would have appointed one of them. In terms of the National Instruction, as stated earlier, the National Commissioner may reserve a position to meet employment equity needs and the strategic objectives of the SAPS. If representation was the genuine concern, one would have expected that he would at the very least have considered that option.

66. The Labour Court appears to have been justified in holding, as it did in para 34 of its judgment, that ‘it is reasonable to assume that [the National Commissioner] at least did not regard the other black candidates who were recommended as suitable’. Pretorius AJ went on to say that whatever the witnesses may have said is of lesser importance because they did not make the decision.

67. Having regard to the importance of the issue, and considering that his decision not to make a senior appointment was being impugned, one would have expected the National Commissioner to have provided assistance to the Labour Court in relation to his motivation and reasoning beyond the cryptic note signed on his behalf. There is no explanation provided for his failure to tender any other evidence in this regard. The effect is that there is no indication that he grappled with all of the issues raised by the recommendation panel and Commissioner Rasegatla. On the contrary, the indications are that he did not engage with what his own management team had put before him.

68. The National Commissioner’s decision not to make the appointment was also defended on the basis that the EEP would be violated if he had appointed Barnard. It was submitted that the representivity imbalance at level nine would be even more negatively impacted. It is important to note that the EEP, in its foreword, states that the focus of employment equity is on black people, women and persons with disabilities. In the executive summary referred to above, it is envisaged that ‘suitably qualified persons from designated groups are equally represented in all occupational categories and levels’. Against the statutory background and the policy documents as well as the EEP it was never contended, nor could it be, that numerical targets and representivity are absolute criteria for appointment. Adopting that attitude would turn numerical targets into quotas which are prohibited in terms of the EEA. The LAC, in my view, erred in holding out the EEP as an absolute legal barrier to Barnard’s appointment. The EEP’s foreword makes it clear that whilst the focus is on employment equity, no employment policy or practise will be established as an absolute barrier to the appointment of suitably qualified persons from non-designated groups.

69. It was also sought to justify the National Commissioner’s non-appointment of Barnard on the basis that the post was not ‘critical’ and that therefore not filling it was justified. It is important to note that nowhere in any legislation relating to any post in the SAPS can the term ‘critical’ be found. It was agreed between the parties that there is no legal foundation for that categorisation. I turn to deal with the constitutional and statutory provisions that do apply to public administration, organs of state and appointments within the SAPS.

70. The principles that apply to administration in every sphere of government, organs of state and public enterprises are set out in s 195(1) of the Constitution, which states:

‘(1) Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:

1. A high standard of professional ethics must be promoted and maintained.

2. Efficient, economic and effective use of resources musts be promoted.

3. Public administration must be development-oriented.

4. Services must be provided impartially, fairly, equitably and without bias.

5. People’s needs must be responded to, and the public must be encouraged to participate in policy-making.

6. Public administration must be accountable.

7. Transparency must be fostered by providing the public with timely, accessible and accurate information.

8. Good human-resource management and carreer-development practices, to maximise human potential, must be cultivated.

9. Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation.’

71. Section 205(2) and s 205(3) of the Constitution deal with the establishment of the SAPS and set out its objects:

‘(2) National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces.

3. The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.’

72. The SAPS Act is the envisaged national legislation. It is the National Commissioner who exercises control and manages the SAPS in accordance with the provisions of ss 205 and 207 of the Constitution and in terms of s 11 of the SAPS Act. It is common cause that, in terms of the Act and the National Instruction, it is the National Commissioner who is responsible for appointments of the kind under consideration. The Constitution and the SAPS Act envisage a professional, efficient police force that makes effective use of resources. Representivity is enjoined. Importantly s 11(2)(a) requires the National Commissioner to develop a plan before the end of each financial year, setting out the priorities and objectives of policing for the following financial year. Section 11(2)(b) requires him to determine the fixed establishment of the SAPS and the grading of posts. Section 11(2)(c) obliges him to determine the distribution of the numerical strength of the SAPS after consultation with the board, and finally on this aspect, s 11 (2)(d) requires the National Commissioner to organise or reorganise the SAPS at national level into various components, units or groups. The board referred to in s 11(2)(c) is a Board of Commissioners consisting of National and Provincial Commissioners presided over by the National Commissioner, the function of which is to promote co-operation in the SAPS.

73. Having regard to the constitutional principles that underpin public administration and organs of state, and the provisions of the SAPS Act referred to in the preceding paragraph, it can hardly be contended that a senior position such as the one under discussion was not given serious consideration when it was created and advertised. Put simply, it must have been thought by all concerned that it was necessary in furtherance of the SAPS’ mission of providing a professional and efficient police service. As stated above, Barnard’s assertions in this regard in her statement of case in the Labour Court were uncontested. These considerations have to be weighed alongside Barnard’s description of the importance of her job within the NES, including the role that it plays in the SAPS meeting its mission as well as the importance of a managerial position within that division. Against that background and in the absence of a reasoned motivation by the National Commissioner, one is left with the distinct impression that the explanation that the post was not filled because it was not ‘critical’ was contrived. This is all the more evident if one considers that after the first rejection, a senior Superintendent was moved laterally to fill-in temporarily. Moreover, the post was advertised on no less than three occasions, lending a lie to the assertion that it was not ‘critical’.

74. The LAC adopted the attitude that it is for the National Commissioner alone to determine whether service delivery would be affected by a post not being filled. In my view, that conclusion cannot be reached without closer scrutiny of the applicable constitutional and statutory provisions and the facts set out in the preceding paragraph. In this regard too, the LAC erred.

75. In relation to the assertion on behalf of Barnard that the failure to appoint her would impact on service delivery, the following part of the heads of argument on behalf of the SAPS, bears repeating:

‘Given the paucity of evidence in this respect, it cannot be argued that the failure to appoint Mrs Barnard prejudiced the interests of the SAPS.’

76. Given that it bore the onus, the paucity of evidence is not a virtue for the SAPS. The evidence referred to in preceding paragraphs militates against the SAPS’ case (and the National Commissioner does not assist their cause by not providing any evidence in explanation or rebuttal) and the conclusions by the LAC. The National Commissioner would have done well to remind himself that the National Instruction issued by him and which has the force of law, admonishes evaluation panels, not only to take into account the promotion of equal opportunities and employment equity but also to have regard to whether the promotion would advance service delivery. The letter referred to in para 30 above, sent to all Provincial Commissioners, Divisional Commissioners and Deputy National Commissioners urged the interviewing panel to focus on the appointment of persons who would enhance service delivery. 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.

77. Further, the negative impact of a double rejection on dubious grounds on a loyal and dedicated servant of the SAPS, such as Barnard, cannot, as identified by Commissioner Rasegatla, be overlooked. On this aspect we are dealing with the impact on both the aggrieved individual and on the SAPS. If we are to build a cohesive society with cohesive components within the state structure, we have to be ‘situation sensitive’.

78. Whilst it is true that in terms of the National Instruction the National Commissioner is not obliged to fill a vacancy, the most obvious instance being where there is no suitable person capable of fulfilling the requirements of the position, it does not follow that where the only suitable person is from a non-designated group in relation to representivity, that person should not be appointed. The foreword to the EEP makes that clear. This is particularly so where there is no rational or proffered explanation, or none proffered at all.

79. No doubt many South Africans will agree that those previously advantaged might in appropriate circumstances have to forego employment opportunities in favour of employment equity. 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. In the result the decision by the LAC, for which there is no factual foundation given the dearth of evidence to which I have alluded, cannot stand.

80. As stated earlier, the facts in this case determine the outcome. In striving to achieve an egalitarian society and in addressing employment equity whilst maintaining fairness as a standard and meeting the country’s needs there can be no victors nor should there be persons considered to be vanquished. Dealing with race classifications, as is necessary under the EEA, feels almost like a throw back to the grand apartheid design. If we are to achieve success as a nation, each of us has to bear in mind that wherever we are located, particularly those of us who have crossed over from the previous oppressive era into our present democratic order, it will take a continuous and earnest commitment to forging a future that is colour blind. This necessarily includes serious and sustained efforts to overcome the prejudices that inevitably attach to us because of our programming, relative to the segregated societies from which we emerged, in order to build a cohesive and potentially glorious rainbow nation. For now, ironically, in order to redress past imbalances with affirmative action measures, race has to be taken into account. We should do so fairly and without losing focus and reminding ourselves that the ultimate objective is to ensure a fully inclusive society - one compliant with all facets of our constitutional project.

81. It was agreed that in the event of Barnard being successful, compensation would necessarily be the difference between what she would have earned as a Superintendent and what she continued to earn as a captain, but limited to a two year period. That is the effect of the order by the Labour Court. Although counsel on behalf of the SAPS suggested that it was the upper limit and that it was perhaps too generous, he could not, in principle, object to such an order. The following order is made:

1. The appeal is upheld with costs including the costs of two counsel.

2. The order of the Labour Appeal Court is set aside and substituted as follows:

‘The appeal is dismissed with costs.’

MS NAVSA

ACTING DEPUTY PRESIDENTAPPEARANCES:

A

FOR APPELLANT:

dv. MSM Brassey S.C. (with him M.J. Engelbrecht) Instructed by:

Serfontein Viljoen & Swart, Pretoria Vermaak & Dennis, Bloemfontein

A

FOR RESPONDENT:

dv. N Cassim S.C (with him T Ngcukaitobi)

Instructed by

T

FOR AMICUS:

he State Attorney, Johannesburg The State Attorney, Bloemfontein

Adv. JJ Malan Instructed by

Kriek Wassenaar & Venter Inc., Pretoria Rosendorff Reitz Barry, Bloemfontein