Solidarity obo Members v South African Police Service and Others (J442/16) [2016] ZALCJHB 148; [2016] 7 BLLR 671 (LC) (15 April 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Of interest to other judges

Case no: J 442 / 16

In the matter between:

SOLIDARITY obo members Applicant and SOUTH AFRICAN POLICE SERVICE First Respondent THE MINISTER OF POLICE N.O. Second Respondent THE NATIONAL COMMISSIONER OF THE SAPS N.O. SOUTH AFRICAN POLICING UNION POPCRU SSSBC Third Respondent Fourth respondent Fifth respondent Sixth respondent

Heard: 23 March 2016

Delivered: 15 April 2016

Summary: Urgent application to interdict appointments and promotions of SAPS members pending Constitutional Court pronouncement on validity of employment equity plan in case no CCT 78/15.

STEENKAMP J

Introduction

[1] This is an unusual urgent application. The applicant, Solidarity, seeks to interdict the first respondent, the South African Police Service (SAPS), from appointing or promoting any members pursuant to an advertisement dated 8 February 2016 in terms of its Employment Equity Plan for the period 2015-2019. In a sense, it seeks to do so pendente lite; but there is no lis pending in respect of that Plan in this Court.

[2] Instead, Solidarity seeks to interdict the appointments pending the judgment of the Labour Appeal Court in another matter involving the same parties in respect of its previous Employment Equity Plan (EEP), declared invalid by Lagrange J on 26 January 2016; alternatively, pending the judgment of the Constitutional Court in the matter of Solidarity v Department of Correctional Services (“DCS”) (case no CCT 78/15) that was argued on 18 November 2015 and in which that Court reserved judgment.

Background facts

[3] SAPS adopted an Employment Equity Plan for the period January 2010 until December 2014. Solidarity challenged the validity of that plan before this court. It was argued before Lagrange J in June 2014.[1] He handed down judgement on 26 January 2016, after that plan had expired.[2] He declared it invalid because it contravened sections 15 (3) and 42 of the Employment Equity Act[3] and section 9(2) of the Constitution.

[4] The main ratio of the judgement is the following:[4]

“The reliance on national demographic targets

[51] It is clear from the provisions of section 42(a)(i) of the EEA and

the regulations discussed that the intention of the EEA was that the comparator against which underrepresentation would be measured should be the ‘relevant’ national and provincial economically active population. The first point to note is that it is perfectly legitimate to have regard to national demographics in terms of the EEA and s 195 of the Constitution, but it is not sufficient to simply rely on national census figures of the general population for the purposes of the EEA. Rather, it is the economically active portion of the population against which the composition of the workforce must be compared. In so far as it is the economically active population that is under consideration, both the national and regional economically active population figures must be considered in terms of s 42(1)(a)(i). Plainly, in relying only on the national population census estimates, SAPS plan did not consider either of these standards in identifying the numerical targets in its plan. At least in these respects, the plan does not comply with the EEA.

[52] In relation to the constitutional injunction that the public service

must be broadly representative of the population, that imperative is perfectly consistent with a public service whose provincial racial profile matches that of the population in each province. There is no sense in which national demographic representation is in conflict with regional demographic representation: a nationally representative workforce that is also regionally representative, will fit the varying geographic racial contours of the population much more closely than one which is not.”

[5] SAPS applied for leave to appeal. It was granted on 23 March 2016 – the day on which this application was argued.

[6] In the interim, SAPS had adopted a new Employment Equity Plan for the period 1 January 2015 to 31 December 2016. Solidarity argues that, in the new plan – as with the previous plan – the “ideal targets” for appointments and promotions are once again solely based on the national census and fails to take into consideration provincial demographics. SAPS argues that it was entitled in law to use national demographics to set numeric targets; and that the new plan incorporates by reference a “flexible approach” embodied in the applicable national instructions.

[7] On 8 February 2016 SAPS advertised more than 5000 positions for promotion purposes. The closing date was 29 February 2016. Appointments are due to be made after 22 April 2016. Employees who are promoted are due to take up their posts by 31 May 2016.

[8] Divisional commissioners and provincial commissioners were instructed to appoint a panel or panels in terms of National Instruction 3 of 2015 to consider the applications. The communication to commissioners also stated:

“During the selection process you must ensure that representivity targets are addressed in terms of the SAPS Employment Equity Plan and the guidelines that will be provided. It is important to note that compliance with representivity is one of the criteria for the selection of candidates for promotion as provided for in paragraph 4(9)(a) of National Instruction 3 of 2015. The over and under representivity figures in each environment will therefore have to be taken into account in the selection process.”

[9] Solidarity argues that the National Instruction does not amend or correct for the rigidity of the current plan seeing that its aim is still the achievement of representivity in line with the national racial composition of the country and does not take regional demographics into account. It argues that any appointments or promotions in terms of the current plan and the national instruction would be in conflict with the provisions of the EEA, ultra vires and unlawful.

[10] On 23 February 2016 Solidarity wrote to the Minister and the Acting National Commissioner asking for an undertaking that the promotions will not be subjected to compliance with the current plan. SAPS did not agree. Solidarity then brought this application on an urgent basis on 7 March 2016. It was placed on the urgent court roll before Lagrange J on 17 March 2016. On the day, it was postponed to 23 March 2016 to allow the filing of further papers.

The relief sought

[11] Solidarity argues that the current plan is unlawful with reference to the Lagrange judgement.

[12] Initially, it sought to interdict the appointment and promotion process pending the appeal of that judgement. It has now amended its notice of motion to ask, in the alternative, for an interim interdict pending the judgement of the Constitutional Court in case number CCT 78/15 The DCS case) that was argued on 18 November 2015.

[13] The union also asked for the current plan to be suspended for the same period; and that the National Instruction 3 of 2015 (or any other national instruction) may not be used to distinguish, exclude or prefer a candidate on the basis of race or gender during promotions or appointments pending delivery of the Constitutional Court judgement.

The parties

[14] The applicant, Solidarity, is a registered trade union. It acts in its own interests and on behalf of its members employed by SAPS.

[15] The first respondent is SAPS. The second respondent is the Minister of Police; and the third respondent is the Acting National Commissioner of the South African Police Service. They jointly oppose the application.

[16] The fourth and fifth respondents are trade unions with a potential interest in the matter. The fourth respondent, the South African Policing Union, abides the decision of the court. The fifth respondent, the Police and Prisons Civil Rights Union (POPCRU), opposes the application.

[17] The sixth respondent is the Safety and Security Sectoral Bargaining Council. It does not oppose the relief sought.

Evaluation / Analysis

[18] In order to understand the interim relief sought by Solidarity, it is necessary to recap what the two pending judgements are about. I shall then consider the requirements for an urgent interim interdict against that background.

The pending LAC matter

[19] As set out above, Lagrange J found that the previous SAPS EEP was invalid, mainly because it took only national and not regional demographics into account. SAPS sought and was granted leave to appeal against that judgment. No date has been set for it to be heard by the LAC, leave to appeal having been granted only on the day that this application was argued. Significantly, in granting leave to appeal, Lagrange J stated:

“As the judgment in the matter to a significant extent is linked to the decision of the LAC in Solidarity & others v Department of Correctional Services & others (POPCRU as amicus curiae)[5], which is a judgment on appeal in the Constitutional Court, it would be anomalous not to grant leave to appeal against the judgment in this matter.”

The pending Constitutional Court DCS judgment

[20] The Labour Court in the DCS case found that the Department of Correctional Services’ employment equity plan (EEP) did not adequately implement affirmative action measures contemplated in section 6(2) of the Employment Equity Act (EEA) by not requiring that regional demographics be taken into account. It will be immediately apparent that that principle is very similar to the one discussed by Lagrange J in the case of the SAPS EEP. But in the DCS case, the Labour Court did not set the EEP aside. It ordered the DCS to take immediate steps to ensure that both national and regional demographics were taken into account when setting its equity targets.

[21] Unhappy with the decision not to grant individual relief, Solidarity appealed to the LAC while the DCS cross-appealed against the order that the implementation of its EEP constituted unfair discrimination. The LAC dismissed the appeal as well as the cross-appeal. The Court agreed that the targets, by failing to take regional demographics into account, fell short of legitimate affirmative action measures.

[22] In the Constitutional Court, the applicants – including SAPS as amicus curiae -- sought an order of appointment and promotion pursuant to findings that the implementation of the EEP constituted unfair discrimination. It is that judgment that has been pending for five months since 18 November 2015. And in that case, SAPS argued that regional demographics are no longer mandatory.

Urgency

[23] SAPS advertised the posts that gave rise to this application on 8 February 2016. The closing date was 29 February. Solidarity acted with alacrity in writing to SAPS and the National Commissioner asking them to hold the appointments in abeyance. They refused. Solidarity then launched this application on 22 March. The posts are due to be filled by 31 May. The Constitutional Court judgement in Correctional Services is imminent. SAPS does not take issue with urgency; only POPCRU does. I am satisfied that the application is, indeed, urgent.

The current EE Plan and the previous plan

[24] In its founding affidavit, Solidarity states:

“From a reading of the ‘current plan’ it is… clear that as with the ‘previous plan’, the ‘ideal’

targets are once again solely based on the national consensus and fail to take into consideration either the national or provincial

economically active population. As confirmed in the above judgement [the Lagrange judgement] such a plan does not comply with the

provisions of the EEA and stands to be set aside.

The following extracts from the current plan makes the aforementioned clear:

‘During promotion all the available posts will be distributed in terms of the National Demographics amongst all race groups. This will ensure that no absolute barrier is placed with regard to the other advancement of any group within the SAPS.

Ideal figures with regard to race based on the 2011 census.

(79, 63% Africans, 8, 91% white, 2, 50% Indians and 8, 96% coloureds).”

[25] SAPS admits these statements in its answering affidavit.

[26] However, SAPS goes further to argue that it “was entitled in law to utilise national demographics to said numeric targets, and to take these into account when making appointments and promotions, provided such numeric targets were applied flexibly and did not amount to quotas.”

National Instruction 3 of 2015

[27] Saps argues that the current EEP is more flexible than the previous one because it incorporates the National Instruction. National Instruction 3 of 2015 sets out, inter alia, the following criteria that interview panel members must use to select candidates for promotion:

“Compliance with representivity at the level that is applicable to the post (in terms of the guidelines provided by the office of the National Commissioner or the Employment Equity Plan of the relevant business unit).”

[28] The level of representivity refers back to the EEP, i.e. to the “ideal targets” on the basis of national demographics. The Court has not been referred to any other EEPs for different business units. And the National Instruction goes on to say:

“If the Divisional or Provincial Commissioner is of the opinion that a recommendation for promotion does not address representivity at the level of the post in the business unit where the post is situated, but decides to nevertheless approve such a promotion, he or she must record this in writing with a motivation.”

Prima facie right?

[29] In order to establish at least a prima facie right to the relief sought, though open to some doubt, Solidarity has to show that the current advertising process falls short of the guidelines set out in the Lagrange judgement and the DCS judgement in the LAC, pending that of the Constitutional Court.

[30] Prima facie it appears to me that it would be difficult for SAPS to show that its current plan passes muster when tested against the Lagrange

judgement.

[31] The current plan is premised on the vision statement that “the South African Police Service is committed to ensuring broad representation of its human resources based on the racial, gender and disability demographics. This shall be implemented in all occupational levels nationally and provincially in relation to each and every workplace.”

[32] Against that background, it is explained that SAPS has taken the approach of implementing employment equity plans per business unit, “but the ultimate objective being alignment with national demographics since SAPS is a national institution.” It goes on to say that it is against this backdrop that SAPS had identified 31 different business units, comprising various divisions, components and provinces.

[33] Although it protests that the implementation of the current plan through the business units will be more flexible than was the case with the previous plan, it is clear that SAPS remains committed to the use of national demographics (in conflict with the Lagrange judgement and that of the LAC in the DCS case). In its application for admission as amicus curiae it states clearly that “the use of national demographics cannot be objectionable in and of itself”; and that it is constitutionally permissible to use national demographics to the exclusion of regional demographics.

[34] It is also clear from the examples of equity guidelines provided to the interviewing panels that the “ideal/granted equity distribution in terms of approved RAG [resource allocation guide]” is based on the national demographics as reflected in the current plan, which states:

“During promotion all the available posts will be distributed in terms of the National Demographics amongst all race groups. This will ensure that no absolute barrier is placed with regard to the other advancement of any group within the SAPS.

[35] The current plan is prima facie at odds with the judgment of Lagrange J insofar as it relies on national demographics only and not regional or provincial demographics. The same concerns raised by Lagrange J in his judgment[6] still pertain to the current plan:

“[65] SAPS’s answer that the plan must be looked at in the context of

other instruments governing appointments is a poor one. The fact that other regulatory provisions might provide for a more nuanced approach to appointments and promotions does not detract from the rigidity of the conception of the plan itself as embodied in its provisions. If SAPS did not intend the numerical goals in the plan to carry overriding importance in employment and promotion decisions in all instances, then the plan itself ought to have said that either by way of express provisions explaining when non-adherence to the attainment of the numerical targets would be considered legitimate, or by express reference to other statutory instruments that provide for this. In the absence thereof, it is hard to escape the conclusion that the plan as such did not envisage a flexible approach being adopted in the pursuit of its numerical targets. In Correctional Services the LAC found that the numerical targets in that plan were not quotas because of the deviation provision it contained. The same cannot be said of the SAPS plan, which contains no equivalent provisions.”

[36] The only “other instrument” that SAPS relies upon to argue that the current plan is more flexible than the old one, is the National Instruction. But the national instruction itself uses as criteria for selection of candidates’ compliance with representivity in terms of the EEP THAT of the relevant business unit; and that, in turn, must comply with the current plan which is based on “the ultimate objective being alignment with national demographics since SAPS is a national institution.”

[37] This court will not lightly interfere in executive decisions. As Moseneke DCJ cautioned in OUTA :[7]

“The common law annotation to the Setlogelo[8] test is that courts grant temporary restraining orders against the exercise of statutory power only in exceptional cases and when a strong case for that relief has been made out. Beyond the common law, separation of powers is an even more vital tenet of our

constitutional democracy. This means that the Constitution requires courts to ensure that all branches of government act within the law. However, courts in turn must refrain from entering the exclusive terrain of the executive and the legislative branches of government unless the intrusion is mandated by the Constitution itself.”

[38] In the recent EFF case[9] Mogoeng CJ also reiterated that the judiciary “does not have unlimited powers and must always be sensitive to the need to refrain from undue interference with the functional independent of other branches of government.” But yet: “Courts ought not to blink at the thought of asserting their authority, whenever it is constitutionally permissible to do so irrespective of the issues or who is involved.”

[39] It is so that Solidarity has not launched an application to have the current plan declared invalid; and in terms of the Oudekraal principle, the new plan remains valid and binding until set aside. However, having had regard to the previous and the current plan it seems to me that Solidarity has established that, at least prima facie, the current plan falls foul of the Lagrange judgement, even if it is open to some doubt. The relief that Solidarity seeks against that background is to hold the current process in abeyance only until the Constitutional Court pronounces upon the relevant principles. When considered together with the other aspects discussed below, I am satisfied that they have at least a prima facie right to do so. SAPS has not yet acted in terms of the current plan; this application is aimed at preventing it from doing so. In that respect it is distinguishable from the facts in Oudekraal. As Sutherland JA stated in Karoo Hoogland Municipality v Nothnagel[10] when explaining Oudekraal: “Later acts perpetrated on the assumption of the validity (incorrectly) of the initial act remain enforceable unless and until they are set aside.” In this case, the later acts premised on the (arguably invalid) EEP have not yet taken place; that is what Solidarity seeks to interdict.

[40] The course of action that Solidarity sought to adopt in this case appears to me to be in line with that outlined in OUTA:[11]

“Under the Setlogelo test, the prima facie right a claimant must establish is not merely the right to approach a court in order to review an administrative decision. It is a right to which, if not protected by an interdict, irreparable harm would ensue. An interdict is meant to prevent future conduct and not decisions already made. Quite apart from the right to review and to set aside impugned decisions, the applicants should have demonstrated a prima facie right that is threatened by an impending or imminent irreparable harm. The right to review the impugned decisions did not require any preservation pendente lite.”

[41] In this case, a preservation order pending the decision of the Constitutional Court is warranted. Failing that, SAPS will proceed with appointments on the basis of an apparently flawed and arguably invalid EEP.

[42] SAPS also argued that s 42(1)(a)(i) of the EEA had been amended and that the previous subsection governed the previous plan that Lagrange J dealt with. But the LAC considered this in its DCS judgment:[12]

“[E]ven though the word “must” has been replaced by “‘may”, there will be factual contexts in which it is difficult to envisage how a plan could pass legal muster without a consideration of regional demographics. Within the Western Cape, where some 50% of the economically active population come from the “Coloured” group, an application of the present plan would result in significant discrimination in that the plan only envisages that 8.8% of the workforce should come from the Coloured population. Similarly, in a province where more than 79.3% of the population are African, this could result in a similar significant reduction in African employees in the province, which plan would again manifestly work to their disadvantage and constitute a clear infringement on dignity to those who were the very target of Apartheid’s racist policies.”

And:

“Even if the word “may” is employed in this enquiry, it is our view that, given South African history, the failure to take account of the impact of regional demographics on the nature and purpose of the plan adversely reduces the contribution of restitution towards substantive equality and hence the attempt to achieve the effect goal of developing a non-racial and non-sexist society. This complete failure to examine the region in which the plan is conceived, constitutes a sufficient legal obstacle against the plan being held to be in compliance with the EEA.”

[43] The same principles apply prima facie to the current SAPS plan. And the LAC judgment stands until such time as the Constitutional Court has finally pronounced on that case.

Apprehension of irreparable harm?

[44] It could be argued – and, indeed, it was argued by counsel for SAPS and POPCRU – that any harm suffered by Solidarity’s

members would not be irreparable. Strictly speaking, that may be so. Should they apply for promotional posts and be unsuccessful under the current plan, any harm they suffer can theoretically be remedied by referring multiple unfair labour practice disputes to the Bargaining Council or unfair discrimination claims to this Court. This aspect is tied up with the question of an alternative remedy and the balance of convenience. But should it appear from the imminent judgement of the Constitutional Court that those appointments were invalid, it would entail unscrambling potentially thousands of eggs comprising more than 5000 appointments. It will impact not only on the unsuccessful applicants, but also on the successful applicants who would be employed in the new posts as from next month, 31 May. And SAPS could potentially challenge each of the Bargaining Council awards on review, or the individual discrimination claims in this Court, and then fight it all the way up to the Constitutional Court again over a period of many years, as it did in the case of Barnard.[13] And as the Constitutional Court noted in that judgment:

“On 11 April 2007, Ms Barnard referred her unfair discrimination dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) but it remained unresolved. The Police Service did not attend the conciliation meeting despite due notice. Ms Barnard resorted to litigation which would serve before three courts over a period of nearly seven years.”

[45] In this case, where the promotional posts have been advertised but the appointment process has not yet started, it would make far more sense to prevent the potential harm than to rely on repairing it after the fact – a process that would be unduly lengthy, costly to the fiscus, and contrary to the stated aims of the LRA to promote “the effective resolution of labour disputes”.[14]

Alternative remedy?

[46] In theory, Solidarity and its members have two alternative remedies. But neither can be said to be a satisfactory or an adequate alternative remedy.

[47] Firstly, it can bring a fresh application to have the current plan declared invalid (as it did with the previous plan). But that will take a long time. SAPS has conceded as much. In its correspondence with Solidarity, it stated that – in respect of the appeal against the Labour Court’s finding with respect to the previous plan – “the matter might take two years for the entire appeal to be finalised, bearing in mind that it must first be decided by the Labour Appeal Court and that there is every likelihood of an appeal to the Constitutional Court.” The same will hold true, no doubt, with respect to the new plan, especially as it is current and the previous one had already lapsed.

[48] Secondly, individual members who are not promoted can bring individual unfair labour practice disputes to the Bargaining Council or an unfair discrimination dispute to this court in terms of s 10 of the EEA. But that opens the way to potentially thousands of individual disputes, whereas all of that can be prevented by the simple expedient of waiting – hopefully for no longer than a few more weeks – for the Constitutional Court in DCS to provide guidance on the criteria to be used.

[49] The judgement of the Constitutional Court should be definitive of the questions raised with regard to the validity of SAPS’s employment equity plans and their failure to take into account regional demographics. That issue is raised pertinently before the Constitutional Court. In that case, Solidarity argued that both the Labour Court and the Labour Appeal Court were correct to hold the DCS Employment Equity Plan because it disregarded regional demographics. The issue is squarely before the Court.

Balance of convenience

[50] In OUTA[15] the Constitutional Court noted:

“A court must be satisfied that the balance of convenience favours the granting of a temporary interdict. It must first weigh the harm to be endured by an applicant if interim relief is not granted as against the harm respondent will bear if the interdict is granted. Thus, a court must assess all relevant factors carefully in order to decide where the balance of convenience rests.

…

A court must carefully consider whether the grant of the temporary restraining order pending a review will cut across or prevent the proper exercise of a power or duty that the law has vested in the authority to be interdicted. Thus, courts are obliged to recognise and assess the impact of temporary restraining orders when dealing with those matters pertaining to the best application, operation and dissemination of public resources. What this means is that the court is obliged to ask itself not with an interim interdict against unauthorised state functionaries competent but rather whether it is constitutionally appropriate to grant interdict.”

[51] In this case, a temporary interdict will put the process embarked upon by SAPS on hold. It will temporarily prevent the exercise of a power by a state authority; but, given the current judgements of this court and of the LAC respectively, the exercise of that power is prima facie unlawful. SAPS and the public will suffer no great harm if the process is put on hold pending the judgement of the Constitutional

Court; the members of Solidarity, on the other hand, will.

[52] The balance of convenience favours Solidarity. This is tied up with the questions of an alternative remedy and the apprehension of harm. It will, quite simply, be more convenient for all the parties to hold the current appointment and promotion process in abeyance pending the judgement of the Constitutional Court than it would be to make more than 5000 appointments with the apprehension that they may have to be undone if they – or some of them -- were to be invalid in the light of that judgement. Service delivery is critical; but it seems to me that it will not be unduly compromised if the process is simply held in abeyance for another month or two.

Conclusion

[53] The court has a general and overriding discretion whether to grant or refuse an application for an interim interdict. That discretion must be exercised judicially upon a consideration of all the facts. And the Labour Court is a court of law and equity.[16] It has the power to make any appropriate order, including an interdict and an order directing the performance of any particular

act which order, when implemented, will remedy a wrong – also on an interim basis -- and give effect to the primary objects of the LRA.[17] And one of the primary objects of the LRA is the effective resolution of labour disputes.[18] On balance, I am persuaded to exercise my discretion in favour of the applicant.

[54] The argument that Solidarity should have attacked the new EEP and asked for interim relief pending the resolution of that attack is attractive. But that would be a lengthy, cumbersome and costly process. The previous SAPS plan was declared invalid only after it had run its course. The attack on the DCS plan in respect of which judgement in the Constitutional Court is pending has already taken more than two years to wend its way through the courts. Should the current promotions process in terms of the February 2016 advertisement and the new EEP not be suspended pending clarity on the criteria to be used from the Constitutional Court, thousands of new positions will be filled by the end of next month (31 May 2016). Should it then become clear that those appointments were invalid, they will have to be undone. It seems to me that this is a case where common sense approach has to be followed. There can

be little harm to any party in maintaining the status quo for a short period until the Constitutional Court handed down judgement. Once the highest court has given clarity on the appropriate criteria to be applied, the advertising process can continue – if necessary, after the appropriate amendments to the current EEP. That would be the least disruptive approach to ensure that the appointments pass constitutional muster.

[55] With regard to costs, this Court is enjoined to consider the requirements of law and fairness.[19] Although Solidarity has been successful, I do not consider it fair to burden SAPS – and thus the taxpayer – or POPCRU – effectively its members – to carry the costs of the application. There is an ongoing relationship between the two trade unions and SAPS. This is an interim order. And the parties will have to reconsider the SAPS EEP in a joint consultation process after the Constitutional Court has pronounced on the appropriate criteria to be used. A costs order at this stage may well have a chilling effect on those discussions and relationships.

Order

[56] I therefore issue a rule nisi in the following terms:

56.1 SAPS and the National Commissioner of the South African Police Service are interdicted and restrained from promoting or appointing any individual in terms of the advertisement for “Post promotions: 2015/2016 – 2016/2017 financial years: employees of the South African Police Service” dated 8 February 2016 or any subsequent advertisement based on the SAPS Employment Equity Plan for the period 1 January 2015 to 31 December 2019, until delivery of the Constitutional Court judgment in Solidarity v Department of Correctional Services (case no CCT 78/15).

56.2 The Employment Equity Plan of SAPS for the period 1 January 2015 to 31 December 2019 is suspended until delivery of the Constitutional Court judgment in Solidarity v Department of Correctional Services (case no CCT 78/15).

56.3 The National Instruction 3 of 2015, and any other National Instruction referred to in the SAPS Employment Equity Plan, may not be used to distinguish, exclude or prefer a candidate on the basis of race or gender during promotions or appointments pending for the period 1 January 2015 to 31 December 2019, until delivery of the Constitutional Court judgment in Solidarity v Department of Correctional Services (case no CCT 78/15).

[57] The rule nisi operates as an interim order until delivery of the Constitutional Court judgment in Solidarity v Department of Correctional Services (case no CCT 78/15).

[58] Any party may approach this Court at any stage to re-enrol this application and may, on good cause, apply to vary or rescind the order.

[59] There is no order as to costs.

_______________________

Anton J Steenkamp

Judge of the Labour Court of South Africa

APPLICANT Instructed by: Corné Goosen Serfontein, Viljoen & Swart. FIRST TO THIRD RESPONDENTS (SAPS): Instructed by: FIFTH RESPONDENT (POPCRU): Instructed by: Ngwako Hamilton Maenetje SC (with him Sumayya Tilly) The State Attorney. Vuyani Ngalwana SC (with him F Karachi) Grosskopf attorneys.

[1] The parties filed further submissions in September 2014.

[2] Solidarity v Minister of Safety and Security and Others (J879/12) [2016] ZALCJHB 15 (26 January 2016).

[3] Act 55 of 1998 (the EEA).

[4] Paras 51-52.

[5] (2015) 36 ILJ 1848 (LAC) [i.e. the matter in which the Constitutional Court reserved judgment on 18 November 2015].

[6] At para [65].

[7] National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC); [2012] 11 BCLR 1148 (CC) para 44.

[8] Setlogelo v Setlogelo 1914 AD 221.

[9] Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (CCT 143/15; CCT 171/15) [2016] ZACC 11 (31 March 2016) paras 92-93.

[10] (2015) 36 ILJ 2021 (LAC) para 22.

[11] Above at para 50.

[12] Solidarity and Others v Department of Correctional Services and Others 2015 (4) SA 277 (LAC); [2015] 7 BLLR 649 (LAC); (2015) 36 ILJ 1848 (LAC) paras 58-59.

[13] SAPS v Solidarity obo Barnard (POPCRU as amicus curiae) 2014 (6) SA 123 (CC); [2014] 11 BLLR 1025 (CC); 2014 (10) BCLR 1195 (CC); (2014) 35 ILJ 2981 (CC) para 17.

[14] Labour Relations Act (Act 66 of 1995) s 1(d)(iv).

[15] Above paras 55 and 66.

[16] LRA s 151(1).

[17] LRA s 158(1)(a)(ii) and (iii).

[18] LRA s 1(d)(iv).

[19] LRA s 162(1).