Public Servants Association (PSA) obo Karriem v South African Police Services (SAPS) and Another (C435/04) [2006] ZALC 39; [2007] 4 BLLR 308 (LC); (2007) 28 ILJ 158 (LC) (23 February 2006)

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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

Case No. C435/04

In the matter between:

PUBLIC SERVANTS ASSOCIATION ("PSA")

obo I KARRIEM Applicant

and

SOUTH AFRICAN POLICE SERVICES ("SAPS") First Respondent

BERNADETTE KOTZE Second Respondent

JUDGMENT

Nel, AJ

This is an application in which the Applicant (to whom I will further herein refer to as "the PSA"), acting on behalf of Ms I Karriem, contends that the First Respondent (to which I will further herein refer to as “the SAPS") directly, alternatively indirectly unfairly discriminated against Ms Karriem as contemplated in Section 6 of the Employment Equity Act, 55 of 1998 ("the EEA") on the grounds of race, alternatively lack of relevant experience, by not appointing her in the position of Chief Administrative Clerk instead of the Second Respondent (to whom I will further refer to as "Ms Kotze").

The PSA alleges that the SAPS failed to comply with its obligations in terms of Section 20(4) of the EEA to review all the factors set out in Section 20(3) of the EEA when making the appointment, i.e. formal qualifications, prior learning, relevant experience and the capacity to acquire, within reasonable time, the ability to do the job.

In the alternative, the PSA alleges that the SAPS breached its obligation to implement affirmative action measures in terms of Chapter III of the EEA and, in terms of its own Employment Equity Plan ("EEP"), in that it failed to appoint Ms Karriem, notwithstanding that she was suitably qualified and a coloured woman.

In the further alternative, the PSA alleges that the SAPS infringed a number of Ms Karriem's fundamental constitutional rights arising from her employment, in particular:

her constitutional right to equality and the right not to be unfairly discriminated against on the ground of race, with reference to Section 9(4) read with Section 9(3) of the Constitution; her right to fair labour practices as directed by Section 23(1) of the Constitution; and her constitutional right to dignity under Section 10 of the Constitution.

It was common cause between the parties that Ms Karriem is a coloured woman and as such, a member of a designated group in terms of the EEA. She was at all times an employee of the SAPS, and the SAPS an employer as defined in Section 213 of the Labour Relations Act, 66 of 1995 ("LRA"). The SAPS is a designated employer as defined in Section 1 of the EEA and has a national EEP in place, in terms of which the SAPS has committed itself to reach equity targets. On 9 October 2001, the SAPS advertised the post of Chief Administration Clerk in the Management Services Department of the Western Cape Province on its so-called dock system. The advertisement described the post as "rendering administrative services, supervising of personnel appointed, processing and interpretation of statistics". The post was also advertised as a designated one. At the time, Ms Karriem was employed as an Administration Clerk in the Communications Division of the Western Cape Province and at a salary level 6. The post was advertised as one at salary level 7. Ms Karriem applied for the post and was placed second amongst the four (out of five) applicants who were short-listed for the post. The selection panel was comprised of Commissioner Holtzman, Director Sheriff, Senior Superintendent Hugo, Senior Superintendent Voskuil (Management Services), Director Viljoen (Management Services), Superintendent Vusi Nyalunga and Director Fick.

In their consideration of the applicants for the position, the selection panel awarded Ms Kotze the highest score (13 out of 15), with 4 out of 5 for "Knowledge and Skills", 5 out of 5 for "Relevant Experience" and 4 out of 5 for "Performance Assessment". Ms Karriem scored 11 out of 15, being made up of a score of 3 out of 5 for "Knowledge and Skills", 3 out of 5 for "Relevant Experience" and 5 out of 5 for "Performance Assessment".

In terms of the Employment Equity Goals of the SAPS for salary level 7 that applied at the time, so the PSA alleges, coloured women were vastly underrepresented (the number then was 210, whilst the EE Goal then was 803) and white women were vastly overrepresented (their number then was 573 and the EE Goal was 321).

Ms Kotze (a white woman) who, as mentioned, got the highest score awarded by the panel, and who accordingly ranked first on the short-list of applicants, was appointed to the post. Ms Karriem subsequently lodged a grievance with the SAPS, complaining that she had been unfairly discriminated against as the SAPS did not apply its own EEP regarding promotion when it promoted a white female over her. After an unsuccessful application to the Safety and Security Sectoral Bargaining Council, the PSA, on 2 September 2003, acting on behalf of Ms Karriem, referred the matter to the Commission for Conciliation Mediation and Arbitration ("the CCMA") for conciliation. After the PSA had been directed to apply for condonation in respect of the late referral of the dispute to the CCMA for conciliation, (which condonation was later granted), a certificate of outcome was issued on 11 June 2004, indicating that the dispute between the parties was not resolved. The matter then proceeded to this Court.

Unsurprisingly, what was in dispute between the parties at the commencement of the trial on 16 September 2005, was whether the SAPS did discriminate unfairly against Ms Karriem on the basis of race, alternatively, relevant experience, when it failed to appoint her in the position of Chief Administration Clerk and appointed Ms Kotze instead. It was thus in dispute whether the SAPS breached its obligation in terms of Section 6(1) of the EEA, not to unfairly discriminate against an employee on the basis of race and whether it, in the alternative, breached its obligation in terms of Section 20(5) of the EEA, not to unfairly discriminate against that person solely on the grounds of that person's lack of relevant experience.

The SAPS also disputed the allegation that it had failed to comply with its obligations in terms of Section 20(4) of the EEA by having failed to review all the factors set out in Section 20(3) of the EEA.

The further alternative allegation is also disputed by the SAPS, namely that it had allegedly breached its obligation to implement affirmative action measures in terms of Chapter III of the EEA by failing to prefer Ms Karriem for appointment, notwithstanding the fact that she was suitably qualified and a coloured woman.

The SAPS denied the further alternative allegation by the PSA that it allegedly infringed a number of Ms Karriem's fundamental constitutional rights, in particular her right to equality, her right not to be unfairly discriminated against on the ground of race, her right to fair labour practices and her constitutional right to dignity. The SAPS did contend that, if its conduct did amount to unfair discrimination (which it denied), Ms Karriem did not meet the inherent requirements of the post as contemplated in Section 6 of the EEA and that she was not suitably qualified for appointment to the post as contemplated in Chapter III of the EEA and, lastly, that the decision by the SAPS to appoint Ms Kotze was rational. I may just mention that Ms Kotze was not initially joined as a Respondent but she was, with the leave of this Court, later joined as the Second Respondent prior to the hearing of the matter. Two witnesses testified before me, Ms Karriem on behalf of the PSA and Mr Voskuil on behalf of the SAPS.

The common cause or undisputed evidence before me was to the effect that Ms Karriem commenced her employment career as a personal assistant or "Girl Friday" in 1981, when she joined Intercraft Jewellery Wholesalers. In 1986 she joined National Resource Development where she performed administrative functions and managed the company temporarily for nine months. Thereafter, she joined Kelly Girl, an employment agency, in 1993, as a secretary and receptionist. Up to this stage, Ms Karriem performed secretarial and general administrative functions; save for the nine months during which she managed the National Resources Development Company. Ms Karriem joined the SAPS in May 1994 and at the time of the hearing she was employed with the SAPS as a Chief Administration Clerk in a post at level 7, to which she had been promoted with effect from 1 August 2005. I pause to mention that, whilst Ms Karriem was initially unsuccessful with her application for promotion to a post level 7 appointment (which is now the subject of this application), she is still seeking redress of what she contends amount to all the breaches by the SAPS, as set out earlier, as she is seeking various compensatory awards from this Court.

Ms Karriem had, prior to her promotion from August 2005, worked at various components within the SAPS. Her functions were largely secretarial and general administration. She had also performed management functions at the communications services component of the SAPS whilst working for the provincial head of the SAPS.

Understandably, Ms Karriem in evidence contended that, particularly in the light of her secretarial, managerial and administrative experience, she was fully qualified to do the job advertised by the SAPS for a Chief Administration Clerk post at level 7. She conceded that this contention of hers was based on a simple reading of the advertised post, namely that it required of the successful candidate to render administrative services, supervise personnel and process and interpret statistics. Ms Karriem also confirmed that the advertised post, a level 7, was a senior position in the ranks of administration posts.

Ms Karriem testified that, after she was unsuccessful with her application, she discovered that one of the reasons for her non-appointment was that she was not registered on the so-called mainframe, whereas she in fact was. As a matter of fact, it turned out from the evidence before me that, of the three reasons given by the SAPS for her non-appointment, two – not having gone on a course for the mainframe and that the advertised post required the person appointed to be in charge of R4, 72 million worth of assets - turned out not to be part of the actual reason why Ms Karriem was not appointed. This particular issue, however, in my view does not influence this matter one way or the other. I will in a moment deal with the reason that was advanced before me by the SAPS in evidence why Ms Karriem was not appointed to the advertised post, and why Ms Kotze was. I am satisfied that this reason was indeed the real, and only, reason why the SAPS in the end decided to appoint Ms Kotze and not Ms Karriem.

In cross-examination of Ms Karriem, she conceded that the persons who applied for jobs competed against one another; that some applicants applying for jobs had both the qualifications and the experience; that applicants who have the necessary experience required by an employer generally stand a better chance of getting the job; that employers wanted to employ persons whom they believe would be able to do the job; that it was commercially sound to appoint or promote suitably qualified people and that this normally contributes towards an efficient business operation; and, lastly, that it was fair for employers, generally, to employ persons whom they believed would be able to do the job sooner rather than later. Ms Karriem also conceded that the description of the post advertised was wide and could mean anything. It could include the type of work in respect of which she had experience and it could also include work falling outside her experience. In her words "it could mean what you wanted it to be". Ms Karriem conceded that she had not performed any of the functions actually required by the post advertised. I am of the view that Ms Karriem did not adduce any direct evidence of differentiation or discrimination on the basis of race in respect of her by the SAPS. If differentiation or discrimination in her treatment did occur, it will have to be inferred from the evidence before me.

Mr Voskuil, who testified on behalf of the SAPS, having at length explained what the position in question entailed, testified that a Ms Shaw was in training in the position in question and that by the time that she left the post, she had been in training for three years, at which point in time she still had not been proficient in the performance of her duties in a similar post to the one in issue before me. Mr Voskuil testified that the position that Ms Kotze occupied at the time that she and Ms Karriem applied for the post level 7 position is the very same position that she and Ms Karriem competed for to be appointed to. Ms Kotze, at the time of her appointment to the position in question, had been doing the work in that particular position for one year and four months. Mr Voskuil's uncontroverted evidence was that, even after sixteen months, Ms Kotze was not fully proficient in performing the duties in the post to which she was later, ahead of Ms Karriem, appointed. I pause to mention here that I am satisfied on the evidence before me that it is apparent that it could take anything from sixteen to thirty-six months to fully master the requirements of the post in question (which Ms Kotze occupied and to which she was appointed ahead of Ms Karriem). Mr Voskuil testified extensively about the assessment process of all the candidates that the panel followed in arriving at its final determination to appoint Ms Kotze rather than Ms Karriem. According to Mr Voskuil, it was apparent to the panel, from Ms Karriem's application, that she did not have the necessary skills to do the job within an acceptable period of time, bearing the operational requirements of the SAPS in mind. What weighed heavily with the panel in selecting Ms Kotze, so Mr Voskuil testified, was the fact that she had the skills to do the job and that she had those skills with immediate effect. She also had an understanding and knowledge of the Persal system, even though at the time of her appointment, she was not fully proficient therein. Mr Voskuil did testify that, being aware of the EEP of the SAPS, the panel considered appointing Ms Karriem as, at the time, there were more white women than coloured women employed at post level 7. Based on the experience of the length of time that it took employees to master the necessary skills to do the work in question, Mr Voskuil testified that it was the panel's view that Ms Karriem would not acquire the skill to do the job within a reasonable and acceptable time-period. (As I have already indicated, the uncontested evidence of Mr Voskuil was that it had taken Ms Kotze one year and four months to become fairly proficient in operating the Persal system and two years to fully master it. Another employee had after 36 months in the position not been fully proficient in the performance of her functions in the position Mesdames Karriem and Kotze were applying for). Mr Voskuil also testified that, to employ a person to the advertised position in question that did not have sufficient skills to do the job would have been catastrophic. He, inter alia, testified that appointing an inexperienced person to the particular position would have dire consequences for the SAPS. It could result in the loss of posts, which in turn would affect the proper and accurate deployment of personnel. It could also lead to a loss of funding, for example, to either set up new stations or deploy personnel. It could also lead to a situation where the SAPS management would be unable, for future planning, to rely on the information generated by the incumbent in the advertised position. Mr Voskuil stated that a failure to maintain data integrity on the Persal programme on the mainframe system, or a failure in the correct identification of posts or correct post translations, would result in chaos in the SAPS management systems. I may mention that Ms Karriem conceded that the SAPS is an employer with a substantial number of employees spread throughout the country, that the SAPS consisted of a large number of departments and that it was important for the SAPS to operate efficiently.

Mr Voskuil testified that a level 7 post is a very senior position in the SAPS and that it in fact was the highest post level in the Western Cape Civil Service appointments. I turn to briefly deal with the selection process. The documents before me included minutes of a so-called sub-panel that considered the appointment. Then there are minutes of a so-called head-panel that finally dealt with this particular appointment. It is the sub-panel which consisted of the persons mentioned earlier herein.

It is clear from the minutes of the sub-panel meeting that it was acutely aware of the employment equity obligations of the SAPS when making the appointment in question. It discloses that the sub-panel was also aware of the fact that white females were also part of a designated group. The sub-panel considered the targets set by the EEP of the SAPS and, clearly, the sub-panel was aware that there was under-representation on all levels, looking at gender and race particularly. The sub-panel confirmed that a target had been set and accepted by the SAPS. The minutes disclose that the sub-panel posed the question how it could motivate appointing somebody who will not contribute to achieving set EEP targets where the points the applicants had been given were not far apart. It is apparent that, having struggled with what to do, being aware of the EEP targets of the SAPS, the sub-panel recommended to the head-panel that Ms Kotze be appointed and that it did so because it had assessed that the operational requirements of the employer dictated that it does so in order not to jeopardise service delivery by the SAPS.

Considering the minutes of the head-panel, one again sees that the head-panel was also alive to the employment equity targets of the SAPS. Being alive to this, one sees from the minutes of the head-panel discussion that it went along with the recommendation from the sub-panel by reason of the fact that Ms Kotze had the competency to perform the functions required by the position in question and that this competency was immediate. It is further apparent that Mr Voskuil's division (Management Services) had argued the very point of immediate competency and that the head-panel noted in the minutes that they had debated the employment equity issues endlessly but accepted the sub-panel recommendation. What is also further important, I believe, is that the head-panel very clearly applied their minds to the possibility of appointing Ms Karriem, it being apparent that the head-panel was also very alert to the fact that her appointment to the position would advance the employment equity targets of the SAPS. As confirmed by Mr Voskuil in evidence before me, it is accordingly patently clear to me that the operational requirements of the SAPS of appointing a person who could immediately perform the functions in the position advertised, outweighed considerations of employment equity targets of the SAPS. In my view, central questions herein in reality are, under circumstances where:

Ms Kotze outscored Ms Karriem in terms of the objective criteria; and

the final decision of the employer was motivated to a large extent, if not exclusively, by the operational requirements of the employer dictating that it should appoint a person who could immediately perform the functions required of the incumbent in the position,

whether:

the SAPS in any way unfairly discriminated against Ms Karriem on any basis whatsoever;

the applicant was suitably qualified for appointment to the job and, if not, did she have the capacity to acquire the skills to do the job within a reasonable time;

the SAPS, in terms of its employment equity goals, should have appointed Ms Karriem to the advertised post on the basis that she was a coloured woman and suitably qualified; and were any of Ms Karriem’s rights infringed as claimed by her herein.

Employment Equity Act provisions.

The preamble of the EEA provides that it was enacted 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 diverse workforce broadly representative of our people; promote economic development and efficiency in the workplace; and give effect to the obligations of the Republic as a member of the International Labour Organisation.

Section 2 of the EEA provides, inter alia, that the purpose of the EEA is to achieve equity in the workplace by 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 workforce. Section 3 of the EEA provides that it must be interpreted in compliance with the Constitution and so as to give effect to its purpose. Section 6 of the EEA prohibits unfair discrimination and provides as follows:

"(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 and birth.

it is not unfair discrimination to –

take affirmative action measures consistent with the purpose of this Act; or distinguish, exclude or prefer any person on the basis of an inherent requirement of a job."

Section 12 of the EEA provides that Chapter III of the EEA applies only to designated employers, except where the EEA provides otherwise. The SAPS is a designated employer. Section 13(1) of the EEA requires every designated employer to implement affirmative action measures for people from designated groups, in order to achieve employment equity. In terms of Section 1 of the EEA, "designated groups,” means black people, women and people with disabilities. In terms of Section 15(1) of the EEA, affirmative action measures are measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workplace of a designated employer. The provisions of Section 20(3) to (5) read as follows:

"(3) For purposes of this Act, a person may be suitably qualified for a job as a result of any one of, or any combination of that person's –

formal qualifications; prior learning; relevant experience; or capacity to acquire, within a reasonable time, the ability to do the job.

When determining whether a person is suitably qualified for a job, an employer must –

review all the factors listed in sub-section (3); and determine whether that person has the ability to do the job in terms of any one of, or any combination of those factors.

In making a determination under sub-section (4), an employer may not unfairly discriminate against a person solely on the grounds of that person's lack of relevant experience."

The aforementioned, I believe in essence covers the legislative framework within which I am called upon to determine this matter.

Discrimination against Ms Karriem on the basis of race, alternatively, relevant experience.

The statement of case of the PSA alleges that the SAPS discriminated unfairly against Ms Karriem on the basis of race, alternatively relevant experience, when it failed to appoint her in the position of Chief Administration Clerk and appointed Ms Kotze instead. It is contended that the SAPS either breached its obligation in terms of Section 6(1) of the EEA not to unfairly discriminate against an employer on the basis of race, alternatively, that the SAPS breached its obligation in terms of Section 20(5) of the EEA, not to unfairly discriminate against the person solely on the grounds of that person's lack of relevant experience. Grogan Workplace Law Eight Edition at page 281 has the following to say on the question whether an act is discriminatory:

"Whether an act is discriminatory is a relevant question: It does not necessarily involve actual prejudice to the individual concerned. It is measured, rather, against the treatment accorded others. Discrimination may therefore be said to exist where others are granted benefits the victim is denied, even though the discrimination entails no actual prejudice to the victim. Thus employees denied promotion lose nothing in an objective sense; they are merely denied benefits accorded to those who are promoted.

The relative disadvantage becomes unfair only when there is no objective justification for distinguishing the allocation of benefits. The distinction may then be said to be 'arbitrary'. 'Arbitrary' means in turn that the distinction is based on some irrelevant criterion."

In Prinsloo v Van der Linde and Another [1997] ZACC 5; [1997] (3) SA 1012 (CC) [1997] (6) BCLR 759 we find the following (at paragraph 31):

"Given the history of this country, we are of the view that 'discrimination' has acquired a particular pejorative meaning relating to the unequal treatment of people based on attributes and characteristics attaching to them. …(U)nfair discrimination, when used in this second form in section 8(2), in the context of section 8 as a whole, principally means treating persons differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in dignity."

The Constitutional Court further stated in the Prinsloo matter (at paragraph 33):

"Where discrimination results in treating persons differently in a way which impairs their fundamental dignity as human beings, it will clearly be a breach of section 8(2). Other forms of differentiation, which in some other way affect persons adversely in a comparably serious manner, may well constitute a breach of section 8(2) as well."

In Harksen v Lane NO and Others [1997] ZACC 12; [1998] (1) SA 300 at paragraph 46 the Constitutional Court held that the determination as to whether differentiation amounts to unfair discrimination acquires a two-stage analysis:

"Firstly, the question arises whether the differentiation amounts to 'discrimination' and, if it does, whether, secondly, it amounts to 'unfair discrimination' ".

It is clear from the Harksen judgment that the very first question that has to be asked was whether there was differentiation amounting to discrimination between people or categories of people. Once this question has been answered and if it is in the affirmative, then a two-stage analysis follows to determine whether the differentiation amounts to unfair discrimination. Mr Steenkamp, on behalf of the PSA, made the submission to me that as it was common cause that Ms Karriem is a coloured female and Ms Kotze is a white female, and as it was also common cause that Ms Kotze was appointed over Ms Karriem for the post of chief administration clerk, that this was sufficient to show that differentiation between the treatment of Ms Kotze and Ms Karriem had taken place. I am not persuaded that this is a correct proposition. No evidence was adduced by the PSA that the SAPS appointed Ms Kotze by reason of the fact that she was a white female. Conversely, I did not understand the case of the PSA to be that Ms Karriem was not appointed by reason of the fact that she was a coloured female. If it is Mr Steenkamp's suggestion that the fact that Ms Kotze (a white woman) was appointed to the post of Chief Administration Clerk whilst Ms Karriem (a coloured woman) was not, and that this in and by itself amounts to differentiation, I cannot agree. The Oxford Dictionary defines "differentiate" as "constitute a difference in, of, or between; serve to make different from". The "Verklarende Handwoordeboek Van Die Afrikaanse Taal" describes "differensieer" as "'n onderskeid vasstel, vorm, aanteken tussen". I understand "differentiate" in the context for example where an employer has a retirement age of sixty-five for male employees, but dictates that female employees should retire at sixty. That, in my mind, amounts to differentiation in the sense that the employer has a retirement policy for men which “constitutes a difference in or between” the policy for women.

Likewise, if an employer requires its female employees to wear a specified uniform, yet does not require its male employees to wear a specific uniform to work – that in my mind amounts to differentiation. Providing a housing subsidy for married male employees, but not for single, unmarried male and female employees – amounts to differentiation. In all these examples, the differentiation will, I believe, most likely amount to discrimination. Then the two stage analysis should follow to determine whether the conduct constitutes unfair discrimination. Where two applicants compete for a position, the mere fact that the one is white and the other coloured, and the white person gets appointed, can certainly not amount to differentiation, nor per se, to discrimination. Clearly, what is required is evidence of conduct which constitutes a difference in, of or between the two parties being made. Or if it is shown that no objective justification existed for the appointment of the one rather than the other, that may amount to differentiation. The application of some irrelevant criterion in the appointment process, or treating the one person differently in a way which impairs that person’s dignity as a human being will be indicative of differentiation.

In the present case, the SAPS, through a process of assessment of the applications for a particular post via, first, a sub-panel and then a head-panel, scored the applicants under specific headings and in the end appointed a particular person (who happens to be a white female) rather than another employee (who happens to be a coloured female). This does not, in my view, in and by itself, amount to differentiation.

The two applicants for the particular position were not, in my view, treated differently. On the contrary, one candidate (Ms Kotze) having outscored another candidate (Ms Karriem), the panels had both considered the possibility of appointing Ms Karriem in pursuance of the employment equity goals of the SAPS, although she had the lower score. In my view, had the SAPS in the end, in pursuance of its employment equity goals, decided to appoint Ms Karriem, notwithstanding the fact that she had been scored lower by the panel, that may very well have amounted to differentiation amounting to discrimination, which, had Ms Kotze complained that she had been discriminated against, may have required one to proceed to the second enquiry, namely whether such differentiation amounted to unfair discrimination. Possibly this would then have resulted in the SAPS arguing that it was not unfair discrimination to take affirmative action measures consistent with the requirements of the EEA.

Likewise if the SAPS excluded Ms Karriem, or preferred Ms Kotze, on the basis of the inherent requirements of the job, it may not be found to have unfairly discriminated against Ms Karriem.

I believe that in this matter the latter is exactly what the SAPS says it did. It excluded Ms Karriem, or preferred Ms Kotze, because of the inherent requirements of the job.

Whether there has been differentiation, must be answered objectively (Harksen v Lane (supra) at paragraph [48]. Ms Karriem did not at all testify to the effect that the SAPS differentiated between her and Ms Kotze on the basis of race. I am of the view that no evidence was adduced by the PSA that the SAPS discriminated against Ms Karriem on the basis of her race. I am of the view that evidence adduced on behalf of the SAPS discloses an objective assessment and awarding of points under various topics to the respective candidates for the position. The evidence further disclosed a proper weighing up of the skills the applicants had to do the job. I am of the view that in essence the SAPS did via its two panels consider the formal qualifications, prior learning, relevant experience as well as the capacity of the applicants to acquire the ability to do the job within a reasonable time.

Mr Voskuil did testify that the panel considered appointing Ms Karriem, particularly because, at the time, there were more white women employed at post level 7 than coloured women. His evidence was, however, that the operational requirements of the SAPS dictated that they had to appoint a person to the vacant position who could immediately perform the functions at an acceptable level. Ms Kotze is also from a designated group. This did not in my view at all form part of the reasoning by the SAPS in appointing Ms Kotze. The fact that Ms Kotze was also from a designated group did not, it would appear feature at all. What clearly drove the SAPS panel to appoint Ms Kotze, rather than Ms Karriem, were its operational requirements that dictated that the person who is appointed should immediately be able to do the job. Ms Kotze was assessed to be suitably qualified to perform the duties in the advertised post. Particularly as she had already been in the position in question for many months weighed heavily with the panels. She, objectively viewed, had the capacity to acquire the ability to do the job within a reasonable time. Ms Karriem, however, also a person from the designated group, and clearly in a group that was underrepresented, which aspect, as I said, was considered by both the panels, was however assessed not to be suitably qualified in the sense that she was found not to have the capacity to acquire the ability to be able to do the job within a reasonable time. Quite clearly, in the opinion of the panels, the operational requirements of the employer in this case were considered and found to outweigh its EE Goals. The PSA was not able to show in evidence that the assessment of the panel (in its scoring of the individual applicants) was in any way arbitrary, irrational or in any way to be faulted. No evidence was in my view adduced showing that the panels acted without objective justification for their decision who to appoint. I have had regard to what Trengove AJ said in Mafomane v Rustenburg Platinum Mines Limited [2003] 10 BLLR 997 (LC) at paragraph 56, namely that:

"An allegation that an employer unfairly discriminated against an employer on the ground of race, involves at least three components.

The first is that the employer differentiated by treating the particular employee less favourably than other employees. The second is that the employer made the differentiation on the ground of race. The third is that it was unfair for the employer to do so."

I do not believe that the PSA has shown that Ms Karriem has been treated less favourably than Ms Kotze. As I have stated earlier herein, the mere fact that one employee, after a proper and fair selection procedure, is appointed rather than the other does not in and by itself constitute differentiation and that employee being treated less favourably than the other employee. The mere fact that the one is a white, and the other a coloured person, does not elevate it to a case of differentiation or discrimination on the ground of race. More is required. Only once a party has shown these two elements being present does the enquiry move to the determination whether it was unfair of the party to so differentiate on the grounds of race.

I am of the view that in the present case there was no differentiation amounting to discrimination on the grounds of race. It follows that I need not do the suggested two stage analysis to determine whether the differentiation amounts to unfair discrimination.

On the second component stipulated above, I am also satisfied that the treatment of Ms Karriem (of not appointing her, but Ms Kotze) was not motivated on any ground of race, but based on objective, relevant and fair grounds and criterion. If I were to further determine whether it was unfair for the SAPS to appoint Ms Kotze rather than Ms Karriem, I am of the view that the PSA has not succeeded in showing that anything which the SAPS did in arriving at the decision to appoint Ms Kotze rather than Ms Karriem amounts to conduct of the employer that was unfair. I am of the view that there was objective justification for Ms Kotze’s appointment. Her appointment was not arbitrary, but based on very relevant and acceptable criterion of the operational requirements of the SAPS.

I am also satisfied that we do not have a situation of unequal treatment of Ms Karriem based on any attribute or characteristic attaching to her.

Even if I were wrong in my conclusion that the SAPS did not differentiate between Ms Karriem and Ms Kotze, and if I were to approach this matter on the basis that there was differentiation based on race, but the operational requirements of the SAPS dictated that Ms Kotze be appointed, then I would have been called upon to make a determination whether the conduct of the SAPS amounted to unfair discrimination. Then I would have had to weigh up and consider, in light of the uncontested operational requirements of the SAPS (that it should appoint a person to the position who was immediately able to perform the functions required by the position) whether the decision was fair.

In this regard it is relevant that the PSA did not at all attack the points which the selection panel had scored in respect of Ms Karriem and Ms Kotze. On that basis alone, objectively viewed, Ms Kotze was the most suitable candidate and her appointment not unfair. However, in the present instant, having considered whether they will, notwithstanding Ms Kotze’s higher score, appoint Ms Karriem to advance the EEP of the SAPS, what was clearly the determining factor for the panel was the operational requirements of the SAPS to appoint a person to the position who could immediately perform the functions. In this regard, it cannot be ignored that the evidence of Mr Voskuil was that, to have appointed a person such as Ms Karriem, who may have taken anything from sixteen to thirty six months to fully acquire the skills to perform the functions, may have been catastrophic in respect of service delivery and efficiency of the SAPS. Based on the fact that the panel had made a comparison between Ms Kotze and Ms Karriem on objective factors, and that no criticism was levelled at the end result of the panel's scoring, Ms Kotze, objectively viewed, was to be preferred as the more suitable candidate. Adding to this the substantial weight of the considerations of the employer's operational requirements – which again Ms Kotze was far better equipped to meet than Ms Karriem, I do not believe that one can fault the decision of the SAPS for having decided to appoint Ms Kotze, rather than Ms Karriem. Even if the appointment discriminated (which I stress it was in my view not) the decision was in my view not unfair. As stated earlier, this will be a case where the employer may distinguish, exclude or prefer Ms Kotze on the basis of the inherent requirements of the job. The conduct of the SAPS on this basis alone does not amount to unfair discrimination. In Stoman v Minister of Safety and Security and Others 2002 (3) SA 468 (T), the court held at page 482(F) to (I) the following per Van der Westhuizen J:

"…Some tension may in certain situations exist between ideals such as efficiency and representivity, and a balance then has to be struck. Efficiency and representivity, or equality, should, however, not be viewed as separate competing or even opposing arms. They are linked and often independent. To allow equality or affirmative action measures to play a role only where candidates otherwise have the same qualifications and merits, where there is virtually nothing to choose between them, will not advance the ideal of equality in the situation where a society emerges from a history of unfair discrimination. The advancement of equality is integrally part of the consideration of merits in such decision-making processes. The requirement of rationality remains, however, and the appointment of people who are wholly unqualified, or less than suitably qualified, or incapable, in responsible positions cannot be justified."

In the present case, Ms Karriem was, by the admission of Mr Voskuil, a person who certainly had the capacity to acquire the skill to do the job. However, objectively viewed, I am satisfied that it could take anything from fourteen to thirty six months for Ms Karriem to acquire the skill sufficiently to do the job and Mr Voskuil's evidence was clearly that the SAPS could not operationally afford to do this. She therefor lacked the ability to acquire the capacity to do the job within a reasonable time. It must be so that, in order to give effect to affirmative action measures, one may find situations where employees of the designated groups are afforded preferential treatment. This may mean that in circumstances, such as the present, where one employee outscores another employee in terms of the assessment of objective factors (such as formal qualifications, prior learning, relevant experience or the capacity to acquire, within a reasonable time, the ability to do the job), the higher scored employee is still not appointed. Although objectively viewed this may constitute discrimination, it may not be unfair, given the very purpose of affirmative action and employment equity. This may be the exact situation where the employer can defend its actions on the basis that, although there accordingly is differentiation, which differentiation may amount to discrimination, it will not amount to unfair discrimination.

Clearly, the same will apply where the scores of respective employees are even, that the employer prefers the employee from the designated group, and more so from the designated group most disadvantaged because of historical factors, in order to achieve its employment equity goals and to advance employment equity goals. In the present case, Ms Kotze is from a designated group. She outscored Ms Karriem in terms of the objective assessment made by the various panels and, as stated, the operational requirements of the SAPS dictated that somebody who could immediately perform the functions at an acceptable level of efficiency be appointed to the position. Even if Ms Kotze was not from a designated group, I believe the operational requirements of the employer would have forced it to appoint a person who did not meet, or advance, the employer’s operational requirements.

Having considered whether they could appoint Ms Karriem, and by so doing advance the EEP of the SAPS, the operational requirements of the employer was considered and it outweighed its EEP considerations.

I am accordingly satisfied that there was no differentiation between Ms Karriem and Ms Kotze and that there is no question about Ms Karriem having been unfairly discriminated against. I am accordingly also satisfied that in the present instance we are not dealing with any discrimination in a pejorative sense that there has been unequal treatment or harm to Ms Karriem, based on attributes and characteristics attaching to her (See The Boundaries of Equality in Labour Law Carole Cooper (204) 25 ILJ 813 at 818) Even if the conduct of the SAPS in this matter did amount to unfair discrimination, which I have now repeatedly indicated I am satisfied it does not, it certainly would have been open to the SAPS to use, as a defence, the provisions of Section 6(2) of the EEA to the effect that it is not unfair discrimination to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job. The undisputed facts herein show that the inherent requirements of the job in question necessitated the appointment of a person such as Ms Kotze who could immediately perform the inherent requirements of the job. I fully agree with the following statement contained in the very useful article of Carole Cooper (The Boundaries of Equality in Labour Law, supra) at page 840:

"It is not just any person from a designated group who may be the recipient of affirmative action measures relating to appointment or promotion, the person must be 'suitably qualified'."

I also associate myself fully with the following statement of Cooper (at 841):

"The 'suitably qualified' requirement should stand as an answer to those critics who hold that affirmative action necessarily means that individuals will be preferred because of their race, gender or disability per se, without an assessment of their competencies. It is clear that the Act does not support tokenism – indeed the code says as much – but requires that the appointee has the requisite skills, knowledge and qualifications to do the job or could acquire these in a reasonable period. Nowhere does the Act state that persons from designated groups have a pre-emptive right to appointment merely because they are from a designated group."

Breaches of Chapter III of the EEA. I have considered the reasoning of Tipp AJ in Dudley v City of Cape Town 204 25 ILJ 305 (LC) as well as that of Wagley J in Harmse v City of Cape Town [2003] 6 BLLR 557 (LC) and, respectfully, find myself in agreement with the reasoning of Tipp AJ. Clearly, as stated by Tipp AJ in the Dudley matter (at 324) [55]), Section 10 of the EEA governs only disputes that concern Chapter II of the EEA.

I further find myself in agreement with Tipp AJ that any issue arising in respect of Chapter III of the EEA falls within the framework of Chapter V of the EEA and that Section 36 of the EEA sets out the initial enforcement step. I am accordingly also of the view that there is no express provision in the EEA for direct access to the Labour Court by the PSA, who is seeking relief on behalf of Ms Karriem, under Section 20 of the EEA. I associate myself fully with the reasoned manner in which Tipp AJ arrived at the conclusion (at 332 [78] of the Dudley case): "…That the EEA does not establish an independent individual right to affirmative action and also that there is no right of direct access to the Labour Court in respect of any such claim."

For the sake of clarity, this statement is of course in relation to Chapter III of the EEA.

Even if I am wrong in my association with the conclusions of Tipp AJ, I am in the first instance satisfied that the SAPS herein did not unfairly discriminate against Ms Karriem solely on the grounds of her lack of relevant experience. She was assessed, as stated before, not to be suitably qualified, particularly because of the operational requirements of the SAPS to fill the position.

I am also unpersuaded that there is merit in the further attack levelled at the SAPS, namely that it failed to review all the factors set out in Section 20(3) of the EEA. On the contrary, I am impressed with the thorough manner in which both the sub- and the head-panel herein had carefully assessed all the relevant aspects which the SAPS, as a designated employer, is required to do.

As stated above, it is quite apparent that the SAPS was patently aware of its duties to give effect to the constitutional imperative of equality of employment opportunities and indeed application of affirmative action measures. For this very reason, I am also satisfied that the PSA has no grounds to allege that the SAPS breached its obligation to implement affirmative action measures in terms of Chapter III of the EEA. At the risk of repeating myself, Mr Voskuil testified that Ms Karriem certainly had the ability, over time, to acquire the skills required to do the job, but he emphasised that the operational requirements of the SAPS did not allow it the luxury to afford Ms Karriem the opportunity to acquire the skills while she was employed in the level 7 post.

I merely, in passing, mention that from the material placed before me, it appears that the SAPS has made progress in its employment equity plan over the period June 2000 to September 2001. It shows that there had been a steady increase in the number of black, coloured and indian women, whilst there had been a decline in the number of white women.

I am satisfied that the EEP of the SAPS is actively being pursued and that the SAPS was, particularly in the present instance, alert to the achievement of equality and the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination.

Infringement of Ms Karriem's fundamental constitutional rights arising from her employment.

The PSA, as a further alternative claim, relies on an infringement of a number of Ms Karriem's fundamental constitutional rights arising from her employment. As stated earlier herein, these infringements by the SAPS are in respect of the constitutional right to equality and the right not to be unfairly discriminated against on the ground of race [Section 9 of the Constitution, read together with Section 9(3)]; and, further, the right to fair labour practices [Section 23(1) of the Constitution] as well as the constitutional right to dignity [Section 10 of the Constitution]. As no evidence has been adduced by Ms Karriem that the SAPS had infringed her right to dignity, Mr Steenkamp, correctly so, did not pursue this attack on the SAPS.

Turning to the question whether Ms Karriem's right to equality had been infringed, I do not believe that any evidence has been adduced before me to lay a basis for any finding whatsoever that Ms Karriem was not treated equally to the other applicants in the assessment of her application for the advertised post, or in respect of her non-appointment. As I have stated earlier, the mere fact that Ms Kotze was appointed rather than Ms Karriem, in and by itself is not any proof of infringing Ms Karriem's rights of equality. I am satisfied that she was equally treated to every other applicant in every respect. As I have also indicated, no attack was levelled on the points that the panels scored each of the applicants. In short, I could find no support for the argument that Ms Karriem's right to equality had been infringed. I turn to the question whether her constitutional right not to be unfairly discriminated against has been infringed. Here again, I am satisfied that, having concluded that there was no differentiation in the treatment meted out to Ms Karriem than to those meted out to any other applicant and, further, that I am satisfied that there was no discrimination against Ms Karriem in the matter under consideration, the attack on this ground must also fail. Lastly, insofar as the allegation that the SAPS infringed Ms Karriem's right to fair labour practices is concerned, I do believe that in this regard Ms Karriem ought to have brought herself within the ambit of Section 186(2)(a) of the LRA. In this regard, I associate myself with Landman J when he said the following in National Entitled Workers Union v Commission for Conciliation, Mediation and Arbitration and Others [2003] 24 ILJ 2335 (LC) at 2340 (I) to (J):

"Should NEWU wish to prohibit a labour practice which is unfair and which is not regulated by a conventional statute, NEWU may approach a court of competent jurisdiction relying on Section 23 of the Constitution to grant the relief which it seeks. This would not contribute to two parallel streams of labour law which, as remarked in NAPTOSA and Others v Minister of Education, Western Cape and Others 2001 (2) SA 112 (C); [2001] 22 ILJ 889 (C), would be 'singularly inappropriate'."

The NAPTOSA judgment concerned the appropriateness or otherwise of granting relief directly under Section 23(1) of the Constitution without a complaint that the LRA was constitutionally deficient in the remedy it provides. I am accordingly of the view that, as stated, in this particular regard, appropriate relief in the sense of approaching this Court in terms of Section 186(2)(a) was what the Applicant should have done. Even if I am approaching this too narrowly, on the basis that I am satisfied that there was no differentiation nor discrimination against Ms Karriem, I nevertheless am also not persuaded that an unfair labour practice was perpetrated against Ms Karriem in relation to her promotion or, in this instance, the failure to have promoted her from a post 6 level to a post 7 level.

Costs.

The parties are in agreement that this is a matter where there are no reasons why the costs should not follow the result.

In the result I make the following order:

The application is dismissed; The Applicant is ordered to pay the First and Second Respondents' costs.

NEL, AJ

Date of hearing: 16 September 2005

Date of judgment: 23 February 2006

Appearances:

For the Applicant: Mr Anton Steenkamp

Instructed by: Sonnenberg Hoffmann & Galombik

For the Respondents: Adv E A de Villiers-Jansen

Instructed by: The State Attorney