MEC: Department of Community Safety v General Public Service Sectoral Bargaining Council and Others (C39/2006) [2007] ZALC 122 (24 April 2007)

JUDGMENT

1

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

CASE NO: C39/2006

In the matter between:

THE MEC : THE DEPARTMENT OF COMMUNITY SAFETY …............................Applicant

and

THE GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL …........................................................................First Respondent

U BULBRING N.O. …............................................................................Second Respondent

LAWRENCE R LAWRENCE ….................................................................Third Respondent

NEL, AJ

[1] The applicant seeks to have the award of the second respondent (“the Commissioner”) reviewed and set aside. The award with case number PSGA87-05/06 was handed down on 12 November 2005, under the auspices of the first respondent. In her award the Commissioner found that the applicant (to whom I will also refer as “the Department” or “the employer”) had committed an unfair labour practice and ordered the Department to pay R128 277 to the third respondent (“Lawrence”).

[2] I wish to first deal with the point in limine raised on behalf of the third respondent, namely that he applicant had incorrectly cited and joined the third respondent as a party to this application. It was contended by the third respondent that as he was represented at the arbitration hearing by the Public Servants’ Association of South Africa (“the PSA”), it had a direct and substantial interest in the subject matter of the litigation before me as it may be prejudicially affected by the judgment given by this Court. It was accordingly argued that the PSA should for this reason have been cited or joined as a party to the application. The third respondent raised this point in his answering affidavit. It was therefore argued that the applicant should have brought an application for the amendment of its papers or for the joinder of the PSA. The applicant however neither replied to this point in limine raised by the third respondent, nor did it amend its papers to correct the citation or bring an application for joinder. It was therefore argued on behalf of the third respondent that the applicant’s application was fatally defective and that it fell to be dismissed for this reason alone. There may have been merit in this argument raised on behalf of the third respondent, particularly in light of the fact that the papers before me disclose that the request for arbitration reflected the applicant party as being the PSA on behalf of Lawrence. However, the Commissioner, in her award only reflects the applicant before her as “Lawrence Lawrence”. The third respondent herein did not take issue with the Commissioner only having cited him as the applicant party in her award and having excluded the PSA therefrom, notwithstanding the fact that the request for arbitration was actually, as I said, made by the PSA on behalf of Lawrence. Lawrence obviously did not have to do anything about the Commissioner’s citation of him as the only applicant party as the Commissioner’s award could be sustained without prejudicing the interests of the PSA. Lawrence therefor did not need to have the award corrected in respect of the Commissioner’s “wrong” citation. He was obviously nevertheless entitled to only raise this point in his answering affidavit. The question is, was it enough for Lawrence to simply allege non-joinder, and that the applicant then had to apply for joinder or amend its papers?

[3] I do not believe that the applicant, before bringing this review application, had any obligation to first take steps to “correct” the citation of the Commissioner in her award, by having the citation corrected to reflect the PSA as the party, which had referred the matter on behalf of Lawrence, and thereafter to then cite that party in its application. It was in my view permissible for the applicant to simply cite the parties in this application as the Commissioner did in her award. On the applicant’s papers as it stood, such judgment as I may give herein can, like the Commissioner’s award, be sustained without necessarily prejudicing the interests of the PSA. If it does as a matter of fact have a direct and substantial interest in the application, it or Lawrence in my opinion bore the onus to apply to be joined for that reason and to make out a case for joinder. It was in my view not sufficient for Lawrence to simply allege that the applicant’s application was defective by reason of non-joinder and then to have sat back, thinking the ball is in the applicant’s court to apply for and amendment of its application or the joinder of the PSA. I believe that particularly where the Commissioner in effect found in favour of Lawrence and the Commissioner only having cited him as the applicant party, the onus was on Lawrence in this application at least to show that the PSA is a necessary party in the sense of having a direct and substantial interest in the subject matter of the application before me and that its rights may be affected by the judgment of the court. He, however, made out no specific case what the direct and substantial interest by the PSA is in the subject matter of the litigation before me. I am accordingly not persuaded that there is any merit in this point in limine raised by the third respondent as the applicant herein merely cited the party, which the Commissioner in turn had cited in her award as the applicant party. The point in limine accordingly fails. As far as costs are concerned, I have considered the following relevant factors. The applicant did not do anything as a result of the third respondent’s point in limine raise in his answering affidavit. Very little time was spent in argument before me on this issue. The conclusion to which I have come in respect of the merits also contributed to my decision that I do not believe that any separate costs order need to be made in respect of such costs as may have been occasioned by the third respondent’s point in limine having been raised, but failed.

[4] I turn to deal with the merits of the application. What gave rise to the dispute, and the subsequent award now being reviewed, is that the Department, since July 2001, employed Lawrence as an Assistant Director in its Supply Chain Management Division. He was on a salary level 9. In March 2004, Lawrence applied for the position of Deputy Director : Supply Chain Management, after the position had been advertised internally and externally. Lawrence was however not short-listed to be interviewed for the position even though he scored the highest marks during the short-listing process. Quite some time later, during December 2004/January 2005, Lawrence learnt that his not having been short-listed had been due to the Department’s equity requirements. He did not at that time object to him not having been short-listed or interviewed because he accepted that getting the equity figures right was important in the Department. Lawrence also said that he did not bother to object because Departments all went in that direction and that it was difficult to overturn that type of ruling. The reason, according to Lawrence, why he changed his mind later was that with the assumption of duty by the person appointed, a Mr Jack Magakwe, in February 2005 to the Deputy Director position, he

was not sure if in fact Magakwe was actually an African person. Lawrence said that the reason why he was not sure that Magakwe was actually an African person was that he had met Magakwe whilst he represented another Department at inter-departmental meetings. At these meetings Magakwe did not strike Lawrence as actually being an African person.

[5] The Public Servants Association (“the PSA”), acting on behalf of Lawrence, then requested Magakwe’s previous employment applications from the Department, which they supplied. On one of these earlier application forms, Magakwe had identified himself as a Coloured person. He also on the same application indicated that his language preference was Afrikaans.

[6] During the short-listing, Lawrence scored 15 points, and Magakwe 6 points, out of a possible total of 22 on the short- listing grid. Lawrence scored the highest of all the applicants reflected on the short-listing grid. During the arbitration, Lawrence also referred to the Department’s employment equity figures as they were reflected in September 2004. These figures showed that at the very time that Lawrence applied for the promotion to the salary level 11 position, the six African persons appointed in the Department on salary level 11 made the Department compliant with its own stated numerical goals for African employees at salary level 11 positions as that target was six. There were however only 7 Coloured employees appointed in the Department to salary level 11 and whilst the target was 11. Clearly the Department still had to achieve its own stated numerical goals for Coloured employees at salary level 11 positions. Lawrence expressed the view that having regard to these statistics for the Department as a whole,

he should have been short-listed. It is obvious that Departmentally the targets for African employees had been met but that there were still four positions available for Coloured persons. Coloured employees were clearly not yet equitably represented in the

Department at salary level 11 positions in the Department’s workforce, whilst African persons had achieve the numerical goals set by the Department to achieve equitable representation for them at salary level 11 positions in the Department.

[7] The position was however different as far as the equitable representation of the different designated groups were concerned in the finance directorate of the Department. This is where the position for which Lawrence had applied was situated. In this directorate there were no African persons in salary level 11 positions. In fact, there were no African persons from salary level 6 to salary level 15 in the finance directorate of the Department. Four African persons worked in the finance directorate whilst the target for African persons in that directorate was ten. There were fourteen Coloured employees working in the finance directorate, the target being 18. So both these designated employee groups were not equitably represented in that directorate in the Department.

[8] In the Department as a whole, as far as the numerical goals set by the Department for employees from the different designated groups were concerned, 137 African persons were needed to meet the Department’s equity target whereas there were only 121. The numerical target for Coloured employees was 459 but there were 14 too many Coloured employees in the Department as a whole.

[9] Lawrence contended that he should have been short-listed, given that four Coloured employees were still needed in the finance directorate. It patently was also relevant to Lawrence’s dispute that at salary level 11 positions in the Department, African employees had reached the numerical goals set by the Department, but Coloured employees at that level were still short by 4. It is apparent that Lawrence’s primary concern was that Magakwe was, according to Lawrence, not an African person. Lawrence,

under cross-examination, conceded that he only became troubled when he discovered Magakwe had been appointed to the post. Lawrence said that his concerns were raised because he doubted whether Magakwe was an African person. Lawrence indicated that during previous meetings between the different Departments, Magakwe spoke Afrikaans fluently. Lawrence stated that he was not saying that African persons did not speak Afrikaans fluently but, according to him, some of his African colleagues also questioned what Magakwe’s nationality was. The reference to Magakwe’s “nationality” is exactly what the record reflects was being questioned. I simply mention it to show that what was also being questioned was not only Magakwe’s race, but also his nationality! Because Magakwe did not strike him as an African person, that was why he had requested that Magakwe’s previous application forms be obtained by the PSA.

[10] Perhaps as it best illustrates the extreme difficulties which these kind of matters can cause, and I believe did as a matter of fact cause herein, I believe it necessary to include herein verbatim parts of the arbitration record when Mr Lawrence was being cross-examined by a Mr Mkosana, who appeared at the arbitration on behalf of the Department. I have inserted the names of the parties for proper identification purposes:

“MR MKOSANA: How do you define an African Mr Lawrence?

MR LAWRENCE: An African person for me was (indistinct) I am not saying that I am correct sir, but an African person for me is a guy that speaks Afrikaans – if he can speak Afrikaans – Afrikaans with a type of an accent. He can speak fluently 1, 2 or 3 native languages which is either Xhosa, Zulu … (intervention).

ARBITRATOR: One of the Black languages.

MR LAWRENCE: Ja, whatever the case may be and he is conversant in English also.

ARBITRATOR: So you define an African as someone who speaks one of the Black languages?

MR LAWRENCE: Not really ma’am, but he will speak Afrikaans – Afrikaans will not be his best – to put it that way - his best language. Either one of the Black languages will be one of his strong languages. English will then be his secondary language and Afrikaans will most probably be third or fourth (indistinct).

ARBITRATOR: So you’re saying Afrikaans should not be his first language?

MR LAWRENCE: If I can put it that way ma’am, if I can put it that way.

ARBITRATOR: Do you not define an African person as someone who is Black?

MR LAWRENCE: I am also an African.

ARBITRATOR: Okay. So that’s how he defines an African. Mr Mkosana proceed.

MR MKOSANA: Thank you.

ARBITRATOR: I don’t know how the Equity Act defines an African person. Is there such a definition?

MR MKOSANA: In fact, Mr Lawrence, I want to put it to you that in terms of equity a Black – an African is actually first of all one of the people that are marginalised in …(intervention).

MR LAWRENCE: Before 1999.

MR MKOSANA: Previously. Even before 1994. Those are some of the elements. Besides language … (intervention).

ARBITRATOR: What is the definition? Is there a definition? Because I’m sure if that’s the definition, one of the people marginalised, Mr Lawrence would see himself as having been marginalised as well.

MR MKOSANA: That’s why ...(intervention). Ma’am I …(intervention).

ARBITRATOR: As would I, being a woman.

MR MKOSANA: No Ma’am, …(intervention). I would – actually I would like to elaborate on that.

ARBITRATOR: Thank you.

MR MKOSANA: And it is actually – obviously I wouldn’t like us to go round in circles here.

ARBITRATOR: Sure. Do we have a definition or not?

MR MKOSANA: But I actually don’t want to waste more time, but can I furnish you with what in terms of employment equity?

ARBITRATOR: Yes please.

MR MKOSANA: And it’s main objectives. I also want to make a copy for the …

ARBITRATOR: Sure.

MR MKOSANA: If you speak of people that are previously disadvantaged and Mr Lawrence will – actually can bear testimony to the fact that the first preference is actually Black people.

ARBITRATOR: Ja.

MR MKOSANA: And it has – although in the political sphere we shouldn’t confuse things, in a political sphere it will be – Black people will be regarded as Coloured as well, but what I’m saying in terms of addressing the question of equity, Africans refers to Black people, not Coloured people and not white people.

MR MKOSANA: What do you have to say to that?

ARBITRATOR: So you’re saying an African is a Black person?

MR MKOSANA: Yes.

ARBITRATOR: Fine. What do you have to say Mr Lawrence?

MR LAWRENCE: I am not with the question now.

ARBITRATOR: In terms of equity.

MR LAWRENCE: Ja.

ARBITRATOR: … What Mr Mkosana is saying is that an African is a Black person. What do you have to say about that?

MR LAWRENCE: That’s now according to equity.

ARBITRATOR: Yes.

MR LAWRENCE: Now if that’s the case, but as I state also I don’t know what Mr Mkosana wants me to answer now on that. If the equity says that (African) person is a Black person then the person is a Black person. I mean …”

[11] The predicament with which the Commissioner was faced herein is further reflected by the following extract from the record of the arbitration proceedings:

“MR MKOSANA: Would I also be correct in saying that you don’t even know (where) Mr Magakwe came from?

MR LAWRENCE: What do you mean by – geographically?

MR MKOSANA: His – as I said his background, where does he originate, you don’t know that. Mr Magakwe is actually going to come and testify here that his father is a Sotho and his mother is a Coloured lady. What do you have to say to that?

MR LAWRENCE: I mean I’ve got – what do I have to say (indistinct) his father is a Sotho, his mother is a Coloured, so what makes it him?

MR MKOSANA: Mr Magakwe … (intervention).

ARBITRATOR: We don’t know.

.........

………

MR MKOSANA: Mr Magakwe is also going to come and testify here that he actually grew up in an Afrikaans speaking environment, that is why his Afrikaans is so fluent. What do you have to say on that?

MR LAWRENCE: No comment.

MR MKOSANA: No comment. Mr Magakwe is also going to testify to the fact that he is an African. --- (no audible answer).

MR MKOSANA: I assume you also have on comment on that as well.

MR LAWRENCE: No comment sir.

MR MKOSANA: So can I then draw a conclusion that you have no basis of thinking that Mr Magakwe is not an African then?

MR LAWRENCE: Can I answer that? Because of my doubtness (sic) when Mr Magakwe is in duty we do a little bit of an investigation (indistinct) and we requested certain documentations from the Department of Communication Safety …….. As I was saying because of the (indistinct) there was doubt, we requested and I know that Mr Magakwe previously worked for the Province. That’s the reason why I requested via the Department, copies of his previous application forms, and on those application forms Mr Magakwe indicated Coloured male. So what can I say? On the one hand he’s African, on the other hand on previous documentations he has indicated that he is a Coloured male.

MR MKOSANA: Thank you. Mr Lawrence you’ve just indicated that the reason why you lodged your dispute was that you became aware that Mr Magakwe is not an African and that was when he resumed duties. Isn’t that correct?

MR LAWRENCE: That’s correct.

……

MR MKOSANA: And then you also stated in your evidence that you actually came into possession of these application forms recently, isn’t that correct?

MR LAWRENCE: That’s correct sir, because of …. (intervention).”

[12] To conclude the illustration of the difficulties the Commissioner was faced with herein, the following extract from the record is also telling:

“ARBITRATOR: I – for me the big concern is – and I am telling the parties this – I need a definition of an African for the purposes of this employment equity plan. Who decides on that definition? Who – where is the definition?

MR MKOSANA: Ma’am as I said … (intervention).

ARIBTRATOR: If I have a Coloured mother and a white father, am I a Coloured, am I a white?

MR MKOSANA: Hence I actually said ….

ARBITRATOR: For the purposes of equity – I mean for the ….(intervention).

MR MKOSANA: Yes I mean – Madam Chair with all due respect we cannot be on a fishing spree here.

MR MKOSANA: We are clear what we mean by equity and we are also clear about the people that are actually previously disadvantaged.

ARBITRATOR: Completely, but Mr Lawrence would argue that he was previously disadvantaged as well, would he not?

MR MKOSANA: Ma’am as I said we are actually not speaking in terms of individuals here.

MR MKOSANA: One has a right to argue that he is actually Black or an African – or that’s a very controversial topic.

ARBITRATOR: Sure, of course it is.

MR MKOSANA: And I want us to focus on one thing. You cannot simply be African if the climate is suitable for you to be an African.

ARBITRATOR: Ja, that’s right.

MR MKOSANA: Secondly I also want to actually state that if we are speaking on – about people that are previously disadvantaged, it is common cause that in the context of South Africa we had the so-called Coloured people who were treated as second-class citizens of this country and we have Black people.

ARBITRATOR: H'm.

MR MKOSANA: So to me that is quite clear, if you are – actually if in terms of equity we’re saying we want to address the imbalances of the past, people that were actually disadvantaged in the past, it goes without saying that we’re actually speaking about Black people.”

[13] Mr Lawrence’s case in my mind is best summarised when, in response to a question put to him by the Arbitrator, Lawrence confirmed that he accepted at the time that an African person needed to be appointed to the position in question, but that he only challenged it when he saw that Mr Magakwe had been appointed to the position, and in his mind, Magakwe was not an African person.

[14] The picture that unfolded in this case sadly shows how there may now in effect potentially be a new system of race classification rearing its head, which may actually continue to negatively affect and bedevil the lives of people. These are the very people who all without question are able to claim to be part of those who have been previously disadvantaged by the discrimination of the past. According to the legislature these people are “Africans”, “Coloureds” and “Indians”. This picture showing a potentially new system of race classification at least in the minds and perceptions of people was completed when Mr Magakwe was called to testify on behalf of the Department. He testified that he was born in Prieska, on a farm near Kimberly. His mother and father were farm labourers. His father was a Sotho African person and his mother a Coloured person. They were married. He attended an African school in sub A and sub B where he was taught in Afrikaans and also Sotho. Because of the influence of his mother, who had a strong influence on her children, Magakwe said he switched over to an Afrikaans school. He regarded their home language as having been Afrikaans in the past. It is now English. His father taught them a little bit of Sotho. His mother and father spoke Afrikaans to each other. He said that the community in Prieska were speaking Sotho as they were staying in an African community. Afrikaans was however also quite a prominent language in the community at Prieska. After he had completed High School, he finally moved to Cape Town in 1987, pursued further studies in Public Administration and obtained a B.Tech. degree. Asked which ethnic group he belonged to, he stated that he belonged to the African Sotho group.

[15] When Magakwe was asked why he had reflected himself as a Coloured person when he applied for a position in the Provincial Government in 1993, he said that employment at the time in Cape Town was very, very difficult. He was no longer staying with his parents and after he had consulted them, they gave him the go-ahead to identify himself as a Coloured person as he felt that that provided him with a better opportunity of finding a job as a Coloured person rather than an African person. He said that as far as his registration in South Africa at Home Affairs was concerned, he was registered as an African person. He said that after 1993 he felt that the conditions were favourable for himself to identify himself as an African person.

[16] It is against this background that the Commissioner was faced with the unenviable task of determining whether the Department had perpetrated an unfair labour practice or not. In this regard it is relevant to mention that in the referral of the dispute, the issue in dispute was described by the PSA on behalf of Lawrence as being that Lawrence was not short listed for the post Deputy Director : Supply Chain Management, which was a promotion position, and therefore that he did not have a fair opportunity to compete for the post. It was further indicated that the decision which Lawrence would like the Commissioner to make was that the Department should be found to have committed an unfair labour practice relating to promotion and that Lawrence should be compensated in terms of Section 194(4) of the Labour Relations Act (“the LRA”).

[17] The applicant alleged that the Commissioner’s award contained a grave error of law in that she failed to recognise that Lawrence bore the onus to prove his contention that Magakwe was in fact a Coloured person as contemplated in terms of the Employment Equity Act of 1998. It was however submitted on behalf of Mr Lawrence that there was no onus on him to prove Magakwe’s race, but only to prove that, in the particular circumstances, there was a duty on the Department to investigate the issue of Magakwe’s race, which it had failed to do. All Lawrence further had to prove, so it was argued, was that the applicant had failed to put a “test” in place in terms of which race could be determined for purposes of making appointments that would meet the applicant’s employment equity targets. It was also contended on behalf of Lawrence that the applicant had failed to do this and that as a result, the applicant’s promotion process was unfair.

[18] It is quite clear that the case Lawrence presented before the Arbitrator was not one where he adopted the position that Magakwe, as a matter of fact, should be classified as a Coloured person and that once he had been so classified, then he should be disqualified from the position. It is for this reason that I agree that Lawrence did not bear any onus to prove Magakwe’s race.

[19] One can understand that the applicant argued that Lawrence bore the onus to prove that Magakwe was not an African person. This clearly arose from the fact that the Commissioner had stated unequivocally that “Lawrence’s case rests primarily on the fact that Magakwe is not African.” But is that really what his case was? Immediately before stating that Lawrence’s case rests primarily on the fact that Magakwe was not an African person, the Commissioner identified what she had to determine in the following terms:

“The question is whether or not there was any unfair conduct on the part of the Department in relation to the non-promotion (i.e. short listing of Lawrence). I am entitled to question whether the decision not to short-list Lawrence was rationally justifiable.”

[20] Of course, the question posed by the Commissioner that she had to answer has a direct relationship to the identification of the issue in dispute contained in the request for arbitration and which I have quoted above. It is accordingly apparent that in her analysis of the evidence and argument the Commissioner, it would appear, started at the correct departure point and she did, in my view, in fact correctly identify the question she had to determine namely whether or not there was any unfair conduct on the part of the Department in relation to the non-promotion of Lawrence.

[21] The problem I believe the Commissioner was really confronted with was that whilst she correctly identified the question to be determined, the case Lawrence placed before her was not of great assistance to the Commissioner in determining the question whether the Department had perpetrated an unfair labour practice in respect of Lawrence’s promotion.

[22] As I have already said, Lawrence was initially perfectly happy for having been excluded from the shortlist by reason of the Department’s equity plan and the targets it had set for itself, particularly in respect of African persons, and more particularly in the particular directorate in which Lawrence had applied to be appointed as Deputy Director. His case was simply that he became unhappy when he learnt that Magakwe had been appointed and because of the fact that Magakwe did not appear to him to be an African person.

[23] In addition, and after he had made enquiries, it turned out that Magakwe had in an earlier application for work in the Provincial Department indicated that he regarded himself as a Coloured person. But Lawrence, in my view, did not take the issue any further. I have perused his evidence given before the Commissioner during the arbitration. It confirms that Lawrence became unhappy when Magakwe was appointed and because Lawrence believed that Magakwe did not appear to be an African person.

[24] It is quite apparent that the Department only became aware of the fact that Magakwe had earlier identified himself as a Coloured person in another application after Lawrence had sought Magakwe’s earlier applications. On the facts placed before the employer at the time of its short-listing of the candidates for the vacant position of deputy director, Magakwe identified himself as an African person. What did the Department say it did, when considering filling the vacancy for the Deputy Director position? Its undisputed evidence was that in the particular directorate it had to bring in African persons, as that was a commitment in that Department in terms of its equity plan. The Department’s application form allows for an applicant to identify him- or herself as a White-, a Coloured-, an Indian- or an African person. Magakwe identified himself as an African person. There was not an iota of evidence placed before the Commissioner that Magakwe’s classification of himself as an African person was at any stage during the short-listing process placed in doubt or questioned by any person.

[25] The Commissioner held that it was required of the Department to appoint an African person in the position in terms of its equity targets and that, accordingly, the Department could not be faulted for having appointed Magakwe. I believe, for reasons I will provide later herein, that the Commissioner’s conclusion on this score was not justifiable, having regard to the evidence place before her. I however will first deal with the Commissioner’s conclusion that the Department had committed an unfair labour practice and the reasons she gave for that conclusion of hers.

[26] Lawrence did not prior to the interviews and/or the appointment of Magakwe take issue with the fact that he had not been short-listed. Lawrence did not expressly raise the case either that, in terms of the Department’s equity objectives, there was place for four Coloured persons in the Department at salary level 11 and that he for that reason, accordingly, should have been considered and in addition, as he was part of the designated group of employees, that the best applicant for the position should have been appointed. That was not his express case before the Commissioner. I am however satisfied that Lawrence nevertheless adduced sufficient material evidence before the Commissioner to enable her to apply her mind to the true issue she had to determine. I revert to this later. Lawrence’s case did focus more on the fact that he placed Magakwe’s race classification in doubt. What is however relevant in assessing the justifiability of the Commissioner’s conclusions is the fact that Lawrence only placed Magakwe’s race classification in doubt well after the event of Magakwe’s appointment. It would appear that it was only at that point in time that it became known to the Department that Magakwe had on an earlier occasion, in 1993, when he applied for a position in the Provincial Department, indicated that he regarded himself as a Coloured person.

[27] What the evidence before the Commissioner did not deal with at all is what, if anything, the Department then did, once it became aware of at least two things. These were that Lawrence was unhappy with Magakwe’s appointment by reason of the fact that he held the belief that Magakwe was not an African person. Secondly, that Magakwe had in fact on a previous occasion, contrary to what he had then done in his application, identified himself as a Coloured person. In this regard one sees that the Commissioner, in her reasoning, with reference to the question whether Magakwe is an African person, indicated that in order for her to find in favour of Lawrence (that Magakwe was not an African person), she would have to undertake a race classification exercise and she would have had to test Magakwe’s race against some measure which supposedly determined race. She then made the following

remarks:

“Although the facts are supposedly plain with regard to his (Magakwe’s) parentage (i.e. it was accepted that his father is an African person and that his mother is Coloured person) this takes the matter no further in the absence of race classification rules and definitions. Given that affirmative action targets are significantly`premised on creating representivity and r%dressing the historical legacy of apartheie it could be argued that I should apply the old PopulaTion Registration Act. that legislation is repealed and I am .ot knclinEd to sit and apply aparTheid legislation. That legislation in any event Would be premised On a questionable basis for race classificatI/n. There is no basis set out in the Employment Equity Act for applying rake classification, so currdnt legislation takes the matter no further. It is also not for me to apply race classification rules of my own making to determine Magakwe’s race (assuming I would wave a magic wand which would answer the question, which I cannot).”

[28] This then led to the Commissioner commenting that it left her to test Magakwe’s race against the policies and procedures of the Department. She indicated that there had been no evidence adduced by either the Department or the PSA in respect of the policies and procedures of race classification or that any standard applied to Magakwe. The Department had simply accepted Magakwe’s race on the basis of his CV. This led to the Commissioner’s further reasoning, which I believe in the end formed the basis for her conclusion that the Department had committed an unfair labour practice in relation to Lawrence’s promotion. The Commissioner reasoned as follows, with reference to the fact that the Department had simply accepted Magakwe’s race on the basis of his curriculum vitae:

“That said, in circumstances insofar as the Department intends to apply race based measures with regard to meeting its representivity requirements it needs to establish a basis to test race to meet their own requirements (my emphasis). Not doing so can have an arbitratory result as is potentially demonstrated by Magakwe’s appointment.”

[29] This appears to be the cornerstone from which the Commissioner progressed to the next proposition, namely that she reasoned that Lawrence had sufficiently discharged the onus (to prove the Department’s unfair conduct) by having demonstrated that the Department accepted the say-so of Magakwe as to his race, notwithstanding Magakwe previously having indicated that he is Coloured person and the Department did so without testing it against any demonstrable criteria (again my emphasis). Having already indicated that she herself could not embark on a race classification exercise in the absence of race classification rules and definitions, the Commissioner then proceeded, nevertheless, to do exactly that. She appears to have done a race classification exercise by applying that which Lawrence had used in support of his uneasiness as to whether Magakwe was an African person or a Coloured person. The Commissioner referred to the evidence by Lawrence that Magakwe’s appearance was that of a Coloured person; that he did not speak an African language; and that his first language was Afrikaans. For these reasons, so reasoned the Commissioner, there was sufficient evidence before the Department to place it on enquiry.

[30] The problem I have with this reasoning of the Commissioner is that this was not what the Department stood accused of, namely that in the face of evidence which may, prima facie, have indicated some doubt as to whether Magakwe was in fact an African person, it failed to take steps to enquire into the whole matter of Magakwe’s disputed race classification. Lawrence’s actual complaint however remained that he had not been short listed for the post and that he did not have a fair opportunity to compete for the post. The fact that he was in the end motivated by his questioning whether Magakwe was an African person or not, to say that the department acted unfairly in not promoting him, does not change the issue in dispute to one where the Department’s failure to conduct an enquiry into Magakwe’s race becomes the issue in dispute. Likewise, the issue in dispute which the Department had to answer was not to show, insofar as it intended to apply race based measures with regard to meeting its representivity requirements, what basis it had established to test race to meet its own requirements and that by not doing so that it in fact had an arbitratory result as was demonstrated by Magakwe’s appointment. That was not Lawrence’s case against the Department. His case was that the Department had

committed an unfair labour practice in respect of its unfair conduct relating to promotion in terms of its failure to promote Lawrence to the salary level 11 position.

[31] I am of the view that the Commissioner, having correctly commenced by identifying the question she had to answer namely whether there was any unfair conduct on the part of the Department in relation to the non-promotion of Lawrence, she however ended up in effect finding that the Department’s conduct was unfair by reason of the fact that it accepted Magakwe’s say-so in respect of his race classification under circumstances where it ought to have enquired into it. This is in my view an irrational conclusion, particularly in light of the fact that at the time of the Department considering the candidates for short-listing, as well as when it made the appointment of Magakwe, it acted on the information which it legitimately was entitled to act on, namely the information provided by the applicant. It is also, having regard to the evidence placed before the Commissioner, not a justifiable

conclusion.

[32] The department made Magakwe’s appointment, it would appear, towards the end of 2004. Only after Magakwe, on 1 February 2005, actually assumed the position, did the complainant, Lawrence, obtain information, which confirmed that Magakwe had earlier identified himself as a Coloured person. Only then, it would appear in April 2005, did the Department become aware that Lawrence was aggrieved when he filed the dispute in question with the Bargaining Council.

[33] One can perhaps understand the proposition of the Commissioner that insofar as the Department intended to apply race based measures with regards to meeting its representivity requirements, it needed to establish a basis to test race to meet their own requirements. Of course that however begs the question. I have illustrated very early on herein the difficulties the parties themselves had during the arbitration to grapple with the race classification questions which reared its head herein. The Commissioner herself posed a very legitimate question, namely whether, if she had a Coloured mother and a White father, was she a Coloured- or a White person? Exactly the same question could be asked about Magakwe. His father being Sotho, his mother being a Coloured person, there home language being Afrikaans, but his father speaking Sotho, what does that make him? An African person or a Coloured person?

[34] Exactly as the Commissioner correctly stated, in the absence of race classification rules and definitions, how does one resolve matters such as these? How would the Department as employer have managed to unravel this question? What basis could it possibly have used to test the disputed race of an employee in order to meet their own requirements of applying affirmative action to designated employees? Bearing in mind that in terms of section 1 of the Employment Equity Act No. 55 of 1998 (“the EEA”), “Black people” is defined as “a generic term which means Africans, Coloureds and Indians”, one is of course immediately confronted by the further difficulty that “Africans”, “Coloureds” and “Indians” are not defined in the EEA, or for that matter, since the abolition of race classification legislation, anywhere else to my knowledge. In this regard the Population Registration Act Repeal Act No. 114 of 1991 repealed the Population Registration Act, 1950, with the purpose “to amend or repeal certain laws so as to abolish the distinction made therein between persons belonging to different races or population groups;”.

[35] I am therefor of the view that present legislation certainly is not helpful to determine the very kind of questions which arose in the matter under consideration. How does one determine a dispute arising between two employees when the question for determination is whether a person is an African person, (as the one employee claims to be), or whether he is a Coloured person, (as another employee claims by reason of the other persons appearance; the fact that the person’s mother is Coloured person and his father is Sotho; and the person speaks Afrikaans fluently but not Sotho). What is the effect, if any, of the fact that the person whose race is being disputed, has previously claimed to be Coloured person? With there not being a legislative guideline as to whether the aforementioned factors may justify a conclusion of classifying that person as a Coloured person, notwithstanding that that person himself contends that he is an African person, it is near impossible in my view to provide an justifiable answer to this very, very vexed, difficult and potentially very emotional and emotive question.

[36] That being the case, the Commissioner understandably early in her reasoning indicated that she could not waive a magic wand, which would answer the question (to determine Magakwe’s race). I do not believe that under these circumstances she was nevertheless justified in finding that the Department was sufficiently placed on enquiry (to determine Magakwe’s race) and that it was not good enough for the Department to simply say that it accepted Magakwe’s say-so in respect of his race classification. She was likewise not justified in concluding that therefore the Department had conducted itself unfairly because it had failed to establish a basis to test race in order to meet its own employment equity requirements. No justification exists in terms of the evidence adduced before the Commissioner for this conclusion. This is apart from the fact that the complaint, as I said, against

the Department was not that it ought to have enquired better into Magakwe’s say-so of what his race classification was.

[37] The Commissioner then embarked on reasoning, which is also wholly unjustified, having regard to the evidence before her, when she stated that:

“Although Lawrence may not have suffered any actual damages it would be inappropriate not to recognise his anger and frustration at standing back in recognition of the Department’s representivity requirements only to be met with an appointee who in the absence of anything more could as easily have been a Coloured person as an African person. In its overall context the Department is guilty of unfair conduct towards Lawrence. He was entitled to fair administrative action; he did not get it.”

[38] I do not believe there was any evidence before the Commissioner to justify any of these conclusions of hers. The Commissioner however did not leave it at that. She then continued to conclude that the Department had exercised its discretion improperly. She started heading in the direction of what she had to determine. However, having come to this conclusion, the Commissioner continued to state that:

“To (her) mind the Department should establish internal guidelines that will allow it to determine this kind of situation in the future. Magakwe’s appointment should be tested against it.”

[39] Whilst these are salutary comments and certainly not without foundation, this, as I indicated, was not the case the Department was tasked to meet. It had to show that it did not act unfairly in failing and/or refusing to shortlist and thereafter promote Lawrence into the position of Deputy Director. Its case was simply that, based on its equity targets, it had decided to appoint Magakwe. As I said, salutary as the Commissioner’s comments may have been, the simple truth is that Lawrence had to show that the Department as his employer had perpetrated an unfair labour practice in terms of Section 186(2) of the LRA in that it had

conducted itself unfairly in respect of Lawrence’s promotion. The Commissioner’s reasoning and conclusions had nothing to do with this particular issue. In any event, her proposition suggests that each employer must establish for itself at least a set of rules as to how it will determine these kind of disputes, which I do not believe can be called anything other than establish afresh a system of race classification. I am of the view that the legislature will have to provide the answer to how these kinds of questions will have to be resolved. As I said, to my knowledge, there presently is no such legislated answer. It follows that I am of the view that the conclusion of the Commissioner that the Department had committed an unfair labour practice relating to promotion is wholly irrational and not justified, considering such reasons as the Commissioner provided for her conclusion and particularly having regard to the evidentiary material placed before her, and in fact also having regard to that which was not placed before her.

[40] The same applies to the compensation awarded by the Commissioner. Even if one were to assume that the Commissioner was correct that the Department had failed in respect of its procedures in accepting Magakwe’s say-so that he was an African person, Lawrence actually referred a dispute relating to the Department’s unfair conduct in relation to promotion to the CCMA. There is simply no rationality in the Commissioner’s reasoning that, because the Department did not have a procedure in place to resolve the race classification issue raised by Lawrence, did not exercise its discretion properly, therefor Lawrence should be

compensated with the equivalent of what he would have received more in remuneration had he been promoted to the more senior position. In any event, having found that there was no justification for the Commissioner’s conclusion relating to the substantive fairness of the Department’s conduct, and having decided to review and set aside this part of the Commissioner’s award, it follows that her compensation award should also be reviewed and set aside.

[41] Even if I decided not to review and set aside the Commissioner’s award in respect of the substantive unfairness she found then, at best for Lawrence, it could have resulted in him having been awarded some compensation because of the procedural unfairness in the conduct of his employer. For that kind of transgression by an employer, to award Lawrence the equivalent of what he would have earned more for a period of a whole year, is a as far as I am concerned in any event a shockingly inappropriate sanction. However, I do not intend dealing with this in any more detail by reason of my conclusion on the substantive part of the Commissioner’s award. I am also of the view that there is in terms of the evidence adduced before the Commissioner, and having regard for the reasons provided for her conclusion why Lawrence should be awarded the amount of R128 277, no justification whatsoever therefor.

[42] I am satisfied that the Commissioner’s award herein should be reviewed and set aside in its entirety. Having had the benefit of the full record of the arbitration proceedings having been placed before me, I see no purpose in ordering that the matter be referred back for determination before a different Commissioner. I have accordingly decided to consider the merits of the matter and to substitute the Commissioner’s award with that of this court.

[43] It is patently clear from the evidence adduced before the Commissioner that Lawrence, in the first instance, accepted the

explanation at the time that he was not short-listed by reason of the equity requirements of the directorate in question. Lawrence’s

acceptance of the employer’s reasons for not short-listing, and later appointing him, does not in my view render an otherwise unfair discrimination, fair. Having initially accepted his non-promotion, in the absence of an express waiver of his rights, Lawrence was not precluded from taking issue with his non-promotion. It is an objective fact that was raised by Lawrence at the arbitration that, as far as the Department as a whole was concerned, it had an under-representation of Coloured persons in terms of its equity

targets for salary level 11 employees. Quite clearly, Lawrence became aggrieved when he formed the subjective view that Magakwe, who had been appointed to the salary level 11 position from which he was in effect excluded because he was a Coloured and not an African person, notwithstanding being the most suitable applicant, was not an African person. This perception was of course further bolstered when Lawrence, having sought Magakwe’s earlier applications for appointments, discovered that Magakwe had on a previous occasion identified himself as a Coloured person.

[44] This case illustrates clearly the potential we face in our country of replacing one system of repugnant discrimination with another. The EEA recognises in its preamble that the purposes of the EEA are:

“that as a result of apartheid and other discriminatory laws and practices, there are disparities in employment, occupation and income within the national labour market; and

that those disparities create such pronounced disadvantages for certain categories of people that they cannot be redressed simply by repealing discriminatory laws,

Therefore, in order to-

promote the constitutional right of equality and the exercise of true democracy;

eliminate unfair discrimination in employment;

ensure the implementation of employment equity to redress the effects of discrimination;

achieve a workforce broadly representative of our people;

promote economic development and efficiency in the workforce; and

give effect to the obligations of the Republic as a member of the International Labour Organisation”.

Section 1 of the EEA has a number of definitions relevant to the determination of the dispute herein. They are:

“designated groups” means Black people,…….

“Black people” is a generic term which means Africans, Coloureds and Indians;”

Section 2 of the EEA records the purpose of the EEA as being:

“to achieve equity in the workplace by­­­­­­­­­-

promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and

implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workplace.”

[45] It is apparent that, first of all, the EEA has as its purpose

that equal opportunity and fair treatment for all people (not

only designated groups) should be achieved in the

workplace through the elimination of unfair discrimination.

This is clearly to give effect to the Constitution, which

guarantees equality before the law and the right to equal

protection and benefit of the law to everyone (not only to

designated groups). (Section 9(1) of the Constitution of the

Republic of South Africa, 1996 [“the Constitution”]).

[46] The Constitution recognises the injustices of the past

(the Constitution Preamble). Whilst the Constitution

guarantees equality before the law to everyone, it also

recognises that to redress the injustices of the past, it will be

necessary to promote the achievement of equality for

everyone by taking legislative and other measures which are designed to protect or advance persons or categories of persons, disadvantaged

by unfair discrimination. (Section 9(2) of the Constitution). In order to give effect to this part of the Constitution, one therefor

sees the enactment of Section 2(b) of the EEA which dictates that in order to achieve equity in the workplace, affirmative action measures are to be implemented “to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all categories and levels in the workforce.”

[47] Nowhere does one find that the legislature has created levels of disadvantagement. One does not see that anywhere any labour- or employment statute dictates anything other than that affirmative action measures must be taken to redress the disadvantages in employment experienced by designated groups. That means that such affirmative action measures as are taken must be for the benefit of “Black people” which means the benefit of African-, Coloured- and Indian persons.

[48] The Constitution, in the first place, guarantees for everyone equality before the law and the right to equal protection and benefit of the law. This equality includes the full and equal enjoyment of all rights and freedoms. I am of the view that whilst the Constitution therefor allows what in the United States became known as reverse discrimination, to redress discrimination of the past perpetrated against the designated group, it is certainly the intention of the legislature that as soon as the discrimination of the past has been redressed, then all people must enjoy equality before the law and the right to equal protection and benefit of the law. This equality must include the full and equal enjoyment of all rights and freedoms. This will clearly also apply to

everyone’s right to fair labour practices guaranteed in terms of section 23 of the Constitution. Therefor, at some point in future time, once the discrimination of the past has been redressed through affirmative action measures, such discrimination as is now being allowed, because it is regarded as fair to do so, must cease as there will come a time when discrimination perpetrated to correct the wrongs of the past will become unfair and therefor will be outlawed. As to when that has happened will be a factual question determined from case to case. Surely this absolute equality before the law of all people without any race or group being discriminated against guaranteed by our Constitution must be what our esteemed former President, Nelson Mandela, had in mind when he said at his inauguration as our county’s first democratically elected President:

“Never, never, and never again shall it be that this beautiful land will again experience the oppression by one of another….The sun shall never set on so glorious a human achievement. Let freedom reign. God bless Africa.

[49] When an employer draws up its employment equity plan, it must, inter alia, identify where under-representation of people from the designated group has occurred and it must then state its numerical goals to achieve the equitable representation of suitably qualified people from the designated group within each occupational category and level in the workforce. (Section 20 of the EEA). Factors which a designated employer must take into account in the implementation of its equity plan are the extent to which suitably qualified people from the different designated groups are equitably represented within each occupational category and level in that employer’s workplace in relation to the demographic profile of the national and regional economically active population. (Section 42 of the EEA).

[50] Issue was not taken by anyone in this matter with the employment equity plan of the Department. It is for purposes of this judgment therefor assumed that the Department’s employment equity plan had been assessed and accepted by the Department of Labour. Even if this did not happen, when an employer has drawn up its employment equity plan in which it has identified its objectives to be achieved and the affirmative action measures to do so, and it has set numerical goals to achieve the equitable representation of suitably qualified people from designated groups within each occupational category and level in the workforce, absent a successful attack on the fairness of the equity plan itself, the employer must comply with its own employment equity plan. It justifiably can be seen as the employer’s yardstick against which its affirmative action steps, which may be discriminatory, can be measured to determine whether it is fair. It will also assist to determine whether such affirmative action measures are being rationally applied.

[51] I also accept that as a result of the demographics of the Western Cape, the equitable representation of Coloured- and African persons was determined and reflected by the figures I have referred to elsewhere herein. From the facts placed before the Commissioner and this Court, it is quite apparent that there was an under representation of African persons in the particular directorate where the deputy director position for which Lawrence applied was situated. The Department as a whole had however achieved its numerical equity targets in respect of African persons at the salary level 11 posts. By appointing an African person in preference to a Coloured person, it meant that the Department as a whole was now actually exceeding its own set equity targets in respect of African persons at this salary level. That may justifiably drive one to a conclusion that African employees were already being promoted to this senior level of the Department faster than the Coloured employees were. This is all the more probable, bearing in mind that proportionally the Department had far more Coloured- than African employees.

[52] It must be remembered that the EEA refers very clearly to the extent to which suitably qualified people from designated groups are equitably represented in each occupational category and level in the employer’s workforce. On the facts before the Commissioner and now this Court, Lawrence was clearly the more suitably qualified candidate than Magakwe. Service delivery surely also need to be considered when particularly public service employers apply affirmative action measures. When an employer has a patently more suitably qualified employee belonging to a designated group, and on top of that, this particular group within the designated group has not achieved its numerical goals to achieve equitable representation, very good reasons will have to exist for the employer not appointing the more suitably qualified employee. The numerical goals set for African persons at salary level 11 positions had been achieved for African persons, but not for Coloured persons, in the Department as a whole. There were only seven Coloured persons

in salary level 11 positions in the Department and the target for Coloured persons was in fact 11. Under these circumstances, the

Department in my view discriminated against Lawrence, who was far more suitably qualified for the position than Magakwe, when it

appointed him in preference to Lawrence, purely based on Magakwe’s race. Having regard to the Department’s own numerical goals for the various groups within the designated group, and particularly the fact that African persons had achieved the level of equitable representation set by the employer itself at this senior level of the Department, whilst Coloured persons had not, it was in my view unfair of the Department not to appoint Lawrence. This is I believe is even more so when one considers the fact that Lawrence clearly was the most suitably qualified candidate, having scored the highest of all the applicants and significantly having outscored Magakwe. Accordingly, I am of the view that the Department unfairly discriminated against Lawrence by appointing the far lesser qualified Magakwe purportedly on equity grounds, when Departmentally, numerical goals set for African employees at the occupational level of employment in the Department had been reached whilst that for Coloured employees at tat level had not.

[53] The reason why the Department departed from its own set numerical goals for African persons was that in the particular finance directorate there were an under-representation of African persons. It will be remembered that in this directorate the situation was that there were no African persons in salary level 11 positions. There were in fact no African persons from salary level 6 to salary level 15 in the finance directorate. Only four African persons worked in that directorate whilst the target for African persons in that directorate was ten. Does this fact perhaps render the discrimination, which I have found the Department perpetrated in promoting Magakwe and not Lawrence, fair? I believe not.

[53] The employer must in terms of the EEA ensure that there is equitable representation in each of its occupational categories and at each of its levels. Properly implemented, an employer will ensure that its affirmative action measures are applied across all its sections or directorates. If it does so in all these directorates, the whole of the employer will eventually achieve its set numerical targets. If the employer achieves its set numerical goals in its workforce as a whole, whilst there is an inequitable representation by one of the groups in the designated group in a particular directorate of the employer, it must follow that the employer did not properly apply its employment equity plan. The Department had an under-representation of African persons in one of its directorates, whilst it had achieved its numerical goals for African persons as a whole Department. Was it fair for the employer to then patently discriminate against a designated group employee by nevertheless appointing an African person who was far less suitably qualified than the Coloured applicant in the directorate where the employer had failed to get its numerical goals

right? I believe not.

[54] I am in fact of the view that it was grossly unfair of the Department to have overlooked Lawrence purely by reason of the fact that the Department, whilst having achieved its numerical goals for African persons at this senior level, it had not done so in its finance directorate where Lawrence was working and applied to be promoted. By appointing Magakwe, African persons were now over-represented at what is clearly a senior level of the Department, at a time when Coloured persons were significantly underrepresented at this senior level of the Department.

[55] Lawrence, as a Coloured person, is a member of the designated group. If one was to accept the argument of the Department’s representative presented at the arbitration, it was fair to discriminate against Lawrence and to appoint Magakwe because, as a member of what the representative referred to as the Black group of the different designated groups, “if in terms of equity we’re saying we want to address the imbalances of the past, people that were actually disadvantaged in the past, it goes without saying that we’re actually speaking about Black people.” ……. If you speak of people that are previously disadvantaged and Mr Lawrence will – actually can bear testimony to the fact that the first preference is actually Black people.”

I assume that the representative of the Department referred to Black people as being a reference to African people as being part of Black people as defined in the EEA.

[56] Any notion that amongst the different designated groups of African-, Coloured- and Indian people, some are less equal than others, stands to be wholly rejected. There simply is no legal basis or framework for such a proposition at all. Equally so there is no legal framework for any notion that African people suffered more than Coloured- or Indian people as a result of past discrimination, therefor they need to get some kind of preferential treatment when it comes to affirmative action. This notion, to the extent that it at least appears from the record of the arbitration proceedings to possibly exist amongst some parties, is to be rejected and must be dispelled in the clearest and strongest of terms. As I said, this case has shown the potential which there exists in the application of affirmative action measures resulting in one system of objectionable and repugnant discrimination being replaced by another situation where unfair discrimination is perpetrated under the guise that it is institutionally allowed.

[57] Lawrence was scored the highest by the panel who considered all the applicants. There can be little question that he was the most suitably qualified applicant for the vacant salary level 11 position. He is a member of the designated group of black people defined in the EEA. As the Department had achieved its numerical goals set for African employees at salary level 11, whilst there were still 4 vacancies for Coloured employees of the Department at that senior level, there was no justification to exclude Lawrence from consideration for the senior position by reason of the fact that there was an admittedly under-representation of African persons in the finance directorate of the Department. The Department, notwithstanding this under-representation in the finance directorate,

was willing to consider a Coloured female. It would appear that one of the reasons why she was considered was that she was already

appointed in a salary level 11 position. She scored better that Magakwe, but worse than Lawrence. It makes no objective sense that

for this reason the Department would consider a Coloured employee, albeit a female, yet not even consider the application of Lawrence,

because he is a Coloured employee, and because an African person needed to be appointed because they were underrepresented in the

finance directorate of the Department. The Department therefor in my view discriminated unfairly against Lawrence by failing or refusing to promote him to the vacant position of Deputy Director : Supply Chain Management with effect from in or about February 2005.

[58] The Commissioner, in awarding Lawrence compensation, arrived at the amount of R128 277 as being the amount Lawrence would have earned more per year, had he been appointed to the level 11 position. If he had been successful in his application to be appointed to the salary level 11 position it would in the long term have had the most significant financial advantages and benefits for Lawrence. Mr Magakwe has not been cited as a party herein. Lawrence never sought that Magakwe should be removed from his promoted salary level 11 position. It would in any event at this stage be rather harsh, in light of the fact that Magakwe is in no way to be blamed for the unfair labour practice perpetrated by his employer, to make any order which will negatively affect Magakwe. I am in any event not entitled to do so, as Magakwe is not a party to these proceedings. Having determined that Lawrence ought to have been promoted in or about February 2005 to the position of Deputy Director : Supply Chain Management, I believe that it is just and equitable to order the Department, as from the same date on which Magakwe assumed his position as Deputy Director : Supply Chain Management, and with retrospective effect, to ensure that Lawrence receives the same salary and benefits he would have received had he been promoted to the post of Deputy Director : Supply Chain Management Deputy on that date. The applicant will be entitled (but not obliged) to give effect to this order by granting the applicant protective

promotion in terms of the Public Service Code. What the applicant must however ensure is that at the earliest opportunity, Lawrence is actually appointed to a vacant post at salary level 11, or higher, in the Department. As this order will have the result that the Department will have to calculate the remuneration Lawrence would have received from the date he would have been promoted to the post of Deputy Director : Supply Chain Management Deputy, it follows that Lawrence will be entitled to a sum of money well in excess of that which the Commissioner had ordered the Department to pay Lawrence. Whilst I do not believe that the Department has complied with the Commissioner’s award, it follows that to the extent that it may have done so, such payment may be offset against what it will be obliged to now pay Lawrence in terms of this order.

[42] I turn to deal with the issue of costs. It is quite apparent that there was a substantial degree of justification for the third respondent’s dissatisfaction herein. In this regard I may simply refer to the evidence adduced by Mr Odendaal at the arbitration proceedings. Mr Odendaal was Lawrence’s direct superior. He was asked how he felt about the fact that Mr Lawrence, with whom he had worked side by side all these years, had been excluded automatically by reason of the fact purely and simply that he was a Coloured person. Odendaal responded by saying that there was some things in life that one had to accept as being beyond one’s control, though it did not feel right. Odendaal further confirmed that he was under pressure from the Department to get the equity figures in his directorate right. Asked to comment about the fact that equity needed to be addressed in the Department and that a problem existed which needed to be addressed, Mr Odendaal commented that it was straight forward : The Department had a policy, it had an equity plan. As managers of the Department they had to comply and adhere to the Department’s own policy in terms of its equity plan. They had certain commitments and targets that they had to reach and they had to manage that process. The relevance of all of this as far as costs are concerned in my view is that although this is a matter where there is an ongoing relationship

between the applicant and the third respondent, the third respondent justifiably felt aggrieved under the particular circumstances

relevant herein. There are in my mind no special circumstances that justify a departure from the normal departing point, namely that the costs should follow the result. Employment equity will remain an emotional issue and its application requires continued sensitivity in all quarters. In this matter I am of the view, particularly having regard to what Mr Odendaal had to say about how the Department implemented its employment equity plan, that the Department did it mechanistically and without the necessary degree of sensitivity and proper consultation with all the parties involved. This I believe must have lead to a lot of resentment not only in the mind of Mr Lawrence but very likely in the minds of the Coloured employees employed by the Department. I believe that the Department discriminated grossly unfairly against Mr Lawrence specifically, and in fact in effect against the Coloured employees employed by it generally. For these reasons I do believe that costs should follow the result herein. As a result I make the following order:

The second respondent’s award with case number PSGA87-05/06 handed down on 12 November 2005 under the auspices of the first respondent is reviewed and set aside. It is substituted by the following award: “(1)The Department’s failure to promote the applicant is held to be an unfair labour practice. (2) As from the same date on which Magakwe assumed his position as Deputy Director : Supply Chain Management, and with retrospective effect, the Department must ensure that Lawrence receives the same remuneration and benefits he would have received had he been promoted to the post of Deputy Director : Supply Chain Management Deputy salary level 11 on that date. Lawrence must also receive all increases and improvements to the salary and benefits which salary level 11 positions may have received since Magakwe’s date of appointment to the salary level 11 position. (3) The Department is ordered to ensure is that at the earliest opportunity Lawrence is actually appointed to a vacant post at

salary level 11, or higher, in the Department. (4) The Department will be entitled (but not obliged) to give effect to this order by granting the applicant protective promotion in terms of the Public Service Code. (6) No order is made as to costs.”

(b) The applicant is ordered to pay the third respondent 's costs of suit herein.

DEON NEL

ACTING JUDGE OF THE LABOUR COURT

Date of hearing: 24 April 2007.

Date of Judgment:

Appearances:

For the applicant: Advocate J A van der Schyff instructed by the State Attorney.

For the respondent: Advocate E Benade instructed by van der Spuy Attorneys.