Police and Prisons Rights Union and Others v Minister of Police and Another (JS803/17) [2021] ZALCJHB 42 (1 March 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JS803/17

In the matter between:

POLICE AND PRISONS CIVIL RIGHTS UNION

Applicant

REGINALD THABO NONYANA & 4 OTHERS Second to Further Applicants

and

MINISTER OF POLICE

First Respondent

SOUTH AFRICAN POLICE SERVICE

Second Respondent

Heard: 16 and 17 November 2020

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 01 March 2021.

Summary: Unfair discrimination – section 6 (1) is to be accorded a narrow construction – test for unfair discrimination is the impairment of human dignity or an adverse effect in a comparable, similar manner and not the classification of the ground as listed or unlisted.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] The second to further applicants are Mr Reginald Thabo Nonyana (Mr Nonyana), Mr Colby Tulo Thibela (Mr Thibela) Mr Matome William Mojapelo (Mr Mojapelo), Ms Joyce Thembi Khaba (Ms Khaba) and Mr Michael Matodzi Madzhie (Mr Madzhie), collectively referred to as applicant employees. They are employed by the SAPS within its Human Resources Practices and Administration (HRPA), holding a positions of Lieutenant Colonel and are members of the first applicant, Police and Prison Civil Rights Union (POCRU).

[2] The applicants impugn an unfair discrimination the decision of the erstwhile Acting National Commissioner of the second respondent,

South African Police Service (SAPS), General Phahlane, to promote three of their colleagues in terms regulation 45(9) of the South African Police Service Employment Regulations, 2008[1] (SAPS Regulations). The applicants mount their attack on two grounds. The first ground is that they were discriminated against on the ground or race as two of the promoted colleagues are white and one is Indian. The second ground, pleaded in the alternative, is that, the applicants were discriminated against on an arbitrary ground.

Background facts

[3] The facts in this matter are to a great extent common course. On 1 September 2016, the following Colonel positions became vacant within the Personnel Division of the HRPA:

3.1. Section Commander: Recruitment and Selection;

3.2. Sectional Commander: Senior Management Appointment; and

3.3. Sectional Commander: Rewards System.

[4] The SAPS filled these position without advertising them. It is common cause that the appointed officials, Mses W De Jager (Ms De Jager), JMR Hudson (Ms Hudson) and SS Naicker (Ms Naicker), were eligible for promotion to Colonel positions as they met the minimum requirements. Likewise, the applicant employees, who are all Africans, were also eligible for promotion but are all junior to the promoted officials in terms of the years of service.

[5] Ms De Jager, a white female, was promoted to the position of Section Commander: Recruitment and Selection. The motivation proffered for her promotion is that she has been with the SAPS for 29 years and more than 22 years within the Recruitment and Selection environment.

[6] Ms Hudson, white female, was promoted to the position of Sectional Commander: Senior Management Appointment. The motivation for her promotion is that she has been with the SAPS for 36 years and more than 13 years within the Sub-section: Senior appointments.

[7] Ms Naicker, an Indian female, was promoted to the position of Sectional Commander: Rewards System. The motivation for her promotion is that she has been with the SAPS for more than 26 years and had been stationed in that section for about four years and acted as a Section Commander.

[8] The Respondents’ defence is that General Phahlane exercised his discretion in terms of subregulation (9) of regulation 45 of the SAPS Regulations which permits a deviation from the provisions of subregulation (8) of regulation 45.

Subregulations (8) and (9) of Regulation 45

[9] Regulation 45 deals with appointment and promotion. Subregulations (8) and (9) provide that:

‘(8) The National Commissioner may promote an employee to a vacant post in the fixed establishment of the Service if­

(a) such a vacancy is sufficiently funded; and

(b) the vacancy has been advertised and the candidate selected in accordance with regulations 43, 44 and subregulations (1) to (7).

(9) Notwithstanding the provisions of subregulation (8)(b), the National Commissioner may promote an employee into a post without advertising the post, and without following the selection process, if­

(a) the National Commissioner is satisfied that ­

(i) the employee qualifies in all respects for the post;

(ii) there are exceptional circumstances that warrant the deviation from the said subregulation; and

(iii) such deviation is in the interest of Service; and

(b) the National Commissioner has recorded the reasons for the deviation in writing.’

[10] The nub of the applicants’ unfair discrimination complaint is that there were no exceptional circumstances that warranted the deviation from regulation 45(8).

Sections 6 and 11 of the Employment Equity Act

[11] The applicants invoke the provisions of section 6(1) of the Employment Equity Act[2] (EEA) which reads:

‘6. Prohibition of unfair discrimination

(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.

(2) …’

[12] Section 11 of the EEA deals with the burden of proof and provides that:

‘(1) If unfair discrimination is alleged on a ground listed in section 6 (1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination –

(a) did not take place as alleged; or

(b) is rational and not unfair, or is otherwise justifiable.

(2) If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that –

(a) the conduct complained of is not rational;

(b) the conduct complained of amounts to discrimination; and

(c) the discrimination is unfair.’

Unfair discrimination on the ground of race

[13] The main issue to determine in this regard is whether or not race played a role in the decision to promote Mses W De Jager, Hudson and Naicker in terms of regulation 45(9).

[14] It is undisputed evidence of the respondents that the impugned promotions were recommended by Lieutenant General Ntshiea, the Divisional Commissioner: Personal Management who is an African. Lieutenant General Ntshiea testified that her decision to recommend the promoted officials was informed, inter alia, by their vast experience, the operational requirements as it was not in the best interest of the SAPS to have vacant positions

indefinitely, and, pertinently, there were projects that were being undertaken which necessitated urgent filling of the vacant posts, one of them being the recruitment of new police officers. These considerations were discussed with General Phahlane, and the Deputy National Commissioner Human Resources who are both Africans and were endorsed by General Phahlane.

[15] The highpoint of Lieutenant General Ntshiea’s cross-examination was that the impugned promotions were motivated by race because the supporting information notes were prepared by Brigadier Kemp, a white male, and Major General Govender, an Indian male. Lieutenant General Ntshiea was adamant that she is the one who instructed Brigadier Kemp and Major General Govender to prepare the information notes to support the impugned promotions. Race was never a consideration as she was personally familiar with Mses W De Jager, Hudson and Naicker and supported their promotion because they were also experienced and reliable.

[16] Lieutenant General Ntshiea testified further that promotion of officials in terms of regulation 45(9) is a common practice within SAPS. In the financial year 2016/2017, Africans topped the list of the officials who were accordingly promoted, with 35 African males and 18 African females out of 29 male and female officials of other races. This evidence was not disputed. Conversely, applicants conceded that the decision to promote officials ultimately lies with the National Commissioner.

[17] There is obviously no iota of evidence to show that General Phahlane preferred Mses W De Jager, Hudson and Naicker because of their races (white and Indian) and failed to consider the applicant employees because they are Africans. It follows that the applicants’ claim in this regard is untenable and must fail as they dismally failed to make out a case that they have been unfairly discrimination based on race. In fact, the applicants’ dispirited written submissions in this regard are instructive.

Unfair discrimination on any other arbitrary ground

[18] The pivotal enquiry in this regard is the scope of construction phrase ‘any other arbitrary ground’ in section 6(1) of the EEA. The applicants contend that this phrase must be accorded a wide interpretation on the strength of the dictum in Chitsinde v Sol Plaatje University[3] which seemingly endorsed the obiter in Kadiaka v Amalgamated Beverage Industries,[4] where the Court endorsed the view that the 2013 EEA amendments introduced a self-standing ground of arbitrariness which meant capriciousness. This approach was rejected for a narrow construction in Pioneer Foods (Pty) Ltd v Workers[5] and Ndudula and Others v Metrorail – Prasa (Western Cape).[6]

[19] In Naidoo and Others v Parliament of the Republic of South Africa,[7] the Labour Appeal Court settled this debate by endorsing a narrow construction and upheld the approach followed by the Court a quo, per Prinsloo J,[8] in line with Harksen v Lane NO.[9] The LAC pertinently made the following observations:

‘Garbers and Le Roux offer a critique of the broad compass idea and, in great detail, eviscerate the thesis. It is unnecessary to address all of their reasoning to demonstrate a convincing rejection of the broad compass interpretation. The essential point is that the phrase to which meaning must be attributed is “… any other arbitrary ground” and not the word “arbitrary,” free from its context and function. In this context the word “arbitrary” is not a synonym for the word “capricious.” The injunction in section 6(1) is to outlaw, not “arbitrariness”, but rather to outlaw unfair discrimination that is rooted in “another” arbitrary ground (the syntax of “…any other…” cannot be understood as otherwise than looking back at what has been stipulated

in the text that precedes it). Capriciousness, by definition, is bereft of a rationale, but unfair discrimination on a “ground” must have a rationale, albeit one that is proscribed. The glue that holds the listed grounds together is the grundnorm of Human Dignity. The authors express this view, with which I agree:

“Discrimination is about infringement of dignity (or a comparably serious harm), about an identifiable and unacceptable ground and about the link directly or indirectly) between that ground and the differentiation. Should a ground not be listed, it should meet the well-established test for unlisted grounds: it must have the potential to impair the fundamental human dignity of a person (or have a comparably serious effect) and has to show a relationship with the listed grounds.”’[10] (Emphasis added)

[20] I now turn to the enquiry as to whether, on the basis of the narrow scope of construction of section 6 (1), the applicants were unfairly discriminated on any other arbitrary ground. The spine of the applicants’ case is that the impugned promotions were informed by their familiarity or proximity to the senior

officials who were ultimately part of the decision. They accused Brigadier Kemp and Major General Govender of preferring Mses W De Jager, Hudson and Naicker because their offices were on the same floor. However, it was not disputed that Lieutenant General Ntshiea who motivated for the promotions and General Phahlane, who ultimately decided to promote Mses W De Jager, Hudson and Naicker, did not share the same floor with them.

[21] In my view, the applicants’ compliant does not meet the test in Harksen[11] which clearly states that if differentiation is ‘not on a specified ground, then whether or not there is discrimination will

depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the

fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner’. Stated

otherwise, the test for unfair discrimination is the impairment of human dignity or an adverse effect in a comparable, similar manner and not the classification of the ground as listed or unlisted.[12]

[22] Notably, it is not the applicants case that the decision to promote Mses W De Jager, Hudson and Naicker in terms of regulation 45(9) is invasive of their dignity. In fact, there is no evidence to suggest any indignity akin to the listed grounds in section 6(1). In addition, they have no qualm with the practice to utilise regulation 45(9) as a tool to effect promotions within SAPS and the fact that most beneficiaries are Africans; nor dispute the respondents’ evidence that the impugned promotions were in the interest of the SAPS.

[23] The applicant employees evidently impugn the decision to promote Mses W De Jager, Hudson and Naicker simply because they hold a view that the deviation from regulation 45(8) deprived them a career advancement opportunity. Even if the impugned promotions were a product of an unfair decision because General Phahlane favoured Mses W De Jager, Hudson and Naicker and turned down the applicant employees because they were not familiar or enjoyed a proximate relationship with him, that conduct would still come short of the threshold of unfair discrimination in terms of section 6(1).[13]

[1] In my view, the applicants were patently ill-advised in pursuing an unfair discrimination claim when there is a better prospect in challenging the impugned promotions in terms of section 186(2)(a) of the Labour Relations Act[14] (LRA).

Conclusion

[2] In all the circumstances, the applicants failed to make a case to sustain an unfair discrimination claim in terms of section 6(1). First, the respondents successfully rebutted the presumption that they were discriminated against on the ground of race. Second, the decision to promote Mses W De Jager, Hudson and Naicker in terms of regulation 45(9) did not negatively impact on the dignity or self-worth of the applicant employees.

Costs

[3] Tritely, costs do not follow the result in this Court in accordance with the requirements of law and fairness. Moreover, where the parties have a persisting collective bargaining relationship, as typified in the present instance, a losing party is normally not saddled with costs.

[4] In the circumstances, I make the following order:

Order

1. The applicants’ claim is dismissed.

2. There is no order as to costs.

_______________

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

Applicant:

Mr T Ntshebe from Thabang Ntshebe Attorneys

Respondent:

Advocate YS Ntloko

Instructed by:

The State Attorney, Pretoria

[1] Government Gazette NO.31412, Notice NO R.973 of 12 September 2008.

[2] Act 55 of 1998, as amended.

[3] [2018] 10 BLLR 1012 (LC) at para 31.

[4] (1999) 20 ILJ 373 (LC).

[5] (2016) 37 ILJ 2872 (LC).

[6] (2017) 38 ILJ 2565 (LC); see also: Sethole v Dr Kenneth Kaunda District Municipality [2018] 1 BLLR 74 (LC) at paras 72, 84, and 85.

[7] (2020) 41 (ILJ) 1931 (LAC); [2020] 10 BLLR 1009 (LAC) (Naidoo II)

[8] See Naidoo and Others v Parliament of the Republic of South Africa [2019] 3 BLLR 291 (LC); (2019) 40 ILJ 864 (LC) (Naidoo I) at para 31 where it was stated: ‘…I am inclined to follow, in fact I am bound to follow Pioneer Foods and Metrorail, where the narrow interpretation was accepted. In Metrorail it was effectively held that an arbitrary ground is nothing more and nothing less than a ground analogous to a listed ground, as contemplated in Harksen. The crux of the test for unfair discrimination is the impairment of human dignity or an adverse effect in a comparable, similar manner and not the classification of the ground as listed or unlisted. The distinction between listed and unlisted grounds affects only the burden of proof. Differentiation on both a listed and analogous ground amounts to unfair discrimination only if the differentiation has indeed affected human dignity or has had an adverse effect with a similar serious consequence.’ (emphasis added)

[8] See Naidoo and Others v Parliament of the Republic of South Africa [2019] 3 BLLR 291 (LC); (2019) 40 ILJ 864 (LC) (Naidoo I) at para 31 where it was stated:

‘…I am inclined to follow, in fact I am bound to follow Pioneer Foods and Metrorail, where the narrow interpretation was accepted. In Metrorail it was effectively held that an arbitrary ground is nothing more and nothing less than a ground analogous to a listed ground, as contemplated in Harksen. The crux of the test for unfair discrimination is the impairment of human dignity or an adverse effect in a comparable, similar manner and not the classification of the ground as listed or unlisted. The distinction between listed and unlisted grounds affects only the burden of proof. Differentiation on both a listed and analogous ground amounts to unfair discrimination only if the differentiation has indeed affected human dignity or has had an adverse effect with a similar serious consequence.’ (emphasis added)

[9] 1998 (1) SA 300 (CC).

[10] See: Naidoo II supra n 7 at para 26.

[11] See: Harksen supra n 9 at para 54.

[12] See: Naidoo I supra n 8.

[13] See: Naidoo II supra n 7 at para 29.

[14] Act 66 of 1996, as amended.