Solidarity obo Pretorius v City of Tshwane Metropolitan Municipality and Another (JS523/2014) [2016] ZALCJHB 155; [2016] 7 BLLR 685 (LC); (2016) 37 ILJ 2144 (LC) (12 April 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Reportable

Of interest to other judges

Case no: JS 523/2014

In the matter between

Solidarity obo JL Pretorius

APPLICANT

and

City of Tshwane Metropolitan Municipality Minister of Labour FIRST RESPONDENT SECOND RESPONDENT

Heard: 7 and 8 March 2016

Delivered: 12 April 2016

Summary: Affirmative action – exclusion of an applicant on the basis of a staffing policy in the absence of an employment equity plan - in the absence of an employment equity plan or employment equity targets, goals and objectives exclusion is unfair – whether a staffing policy without employment equity targets, goals and objectives qualifies as an employment equity or affirmative action measure to render discrimination on the basis of race and gender fair.

COETZEE, AJ

Introduction

[1] The applicant is Solidarity who represents and in this matter acts on behalf of its member Mr JL Pretorius and in its own interest. In this judgment, I refer to Mr Pretorius as the employee or the applicant.

[2] The City of Tshwane Metropolitan Municipality is the first respondent and the employer of Mr Pretorius. In this judgment, I refer to the first respondent as the employer.

[3] The employee is a white male employed in the position of Water Audit Officer, Department Water and Sanitation and who applied for the position of Foreman: Trades within the Department Services Infrastructure, Division: Water and Sanitation and more particularly in the section: Water Consumer Management ("the post").

The factual matrix

[4] The employee applied for the post prior to the closing date for applications on 7 September 2012.

[5] He was shortlisted and interviewed on or about 15 March 2013 and learned during July 2013 that the post was to be re-advertised. He again applied but was not short listed. The shortlist for the first advertisement was approved on 4 December 2012.

[6] The shortlisting was accompanied by a motivation from his department that he as a person from the non-designated group be included in the shortlisting for the reasons set out in the motivation.

[7] It is common cause that it was the practice to submit a motivation of this nature when appropriate.

[8] The motivation was not available during the trial.

[9] The recruitment process afterwards was declared null and void as conveyed in a letter dated 31 May 2013.

[10] The employer nullified the recruitment process on the basis that prior to the interviews Mr Ratsiane, the Acting Executive Director: Human Resource Management, conditionally approved the shortlist (containing the name of the employee) subject to the following condition:

'Only candidates from designated group should be shortlisted and interviewed'.

[11] Mr Ratsiane's evidence was that he made the comment or set the condition solely on the basis of workplace profile statistics reflected on the form submitted to him for approval and on which he had made the comment.

[12] His only consideration was the numbers in a table on the form. Those numbers gave him the impression that there were "too many" white males reflected in the group.

[13] He conceded that there were no numbers or numerical targets against which he could compare the white male representation.

[14] He did not consider the motivation for the inclusion of white males in the shortlist. The motivation accompanied the form submitted for his approval on which he made the comment. He could not recollect whether he saw the motivation at all. He did not consider any targets and he did not consider whether the position required a scarce skill. He was unaware that the position required certification as a plumber.

[15] Mr Ratsiane did not give any consideration as to whether the broader representativity was relevant to the shortlisting of candidates for this position in this specific department.

[16] The employer is a designated employer for purposes of the Employment Equity Act, Act 55 of 1988 (the "EEA")

[17] The employer adopted its new Employment Equity Plan on 8 May 2013 '… retrospectively to 1 July 2012'.

[18] For the period 1 July 2012 to 8 May 2013, it had no Employment Equity Plan in place. It initially submitted that the subsequent plan of 8 May 2013 was adopted retrospectively and that it covered the relevant period.

[19] The employer, prior to 2012, had in place an employment equity plan that had expired in June 2011. According to the representativity figures, in the occupational category "skilled technical", there were 1098 white males employed at "skilled technical" level with a target to be reached by 30 June 2013 set to be 1102 white males.

[20] This plan, at the time of the shortlisting of Mr Pretorius, had already expired. The information, however, was still relevant with regard to the representativity within this occupational category and suggested that there was room to appoint white males. This information was not considered by Mr Ratsiane. He took into consideration the representation only of Foreman within the Division: Water and Sanitation Department.

[21] The applicant and Mr Cassel testified that the Water and Sanitation Department needed and still needs a Foreman to ensure service delivery to the public. The applicant from time to time had to act in this position. Mr Viljoen, his senior, also from time to time had to attend to the duties of the Foreman which detracted from his own duties and focus in overseeing the functions and duties of the Department as a whole.

[22] The post is still vacant. The employer has not presented any evidence that the post has been frozen or that there is no provision made for it in the budget.

[23] In addition, it would have meant promotion to the employee to be appointed to the position of Foreman.

[24] The employer had in place a Staffing Policy contained in a collective agreement to which Imatu was a signatory. The employee is and was a member of IMATU.

[25] Mr. Ratsiane relied on the provisions of the Staffing Policy to exclude the employee from the process and to nullify the selection process.

Analysis and discussion

[26] The employee claims relief on the basis of unfair discrimination. It is the employee's case that he was excluded from competing for the vacant position on the basis of his race and gender.

[27] The decision of Mr Ratsiane to make the note, or impose the condition as he explained in evidence, to exclude persons from the non-designated groups from the shortlist and subsequently to declare the process null and void was based solely on the gender and race of the employee.

[28] The employer maintains that the employee should never even have been shortlisted in terms of its Staffing Policy and therefore the employer has not discriminated against the employee. In its view, the employee could only have been a suitable candidate if he was a member of a designated group.

[29] The employer, in fact, raises two defences: firstly that the employee was a member of IMATU who is a party to the collective agreement containing the Staffing Policy. That being the case, the employee is bound by the provisions of the collective agreement (and the Staffing Policy) to which IMATU is a party. Because in terms of the Staffing Policy, he was excluded as a suitable candidate; he should not have been interviewed and thus cannot complain as he was bound by the collective agreement. This of course presupposes that the Staffing Policy lawfully and fairly excluded him as a suitable person.

[30] Secondly, the employer initially defended itself by saying that it acted in terms of its Employment Equity Plan for the period July 2012 to June 2017. Its second defence in the hearing, however, changed from reliance on the Employment Equity Plan to reliance on the Staffing Policy.

[31] In argument, it abandoned its position that the plan applied retrospectively and conceded that for the period 1 July 2012 to 8 May 2013, it had no plan in place. It was during this period that the employee participated in the recruitment process.

[32] The employee in its statement of case asks for the Employment Equity Plan adopted on 8 May 2013 to be set aside. This relief has since been abandoned as the employer during February 2016 rescinded the plan (that did not apply from 1 July 2012 to 8 May 2013) and replaced it with a new plan which is not before Court.

[33] The employer did not submit that the declaration of nullity of 31 May 2013, after the adoption of the Employment Equity Plan ("the plan") on 8 May 2013, was done in terms of the plan or that it could rely on the plan for this conduct.

[34] The employer finally, and rightly so, conceded that in the absence of justification, it discriminated against the employee. The employer defended the alleged discrimination in terms of the Staffing Policy which it submitted was and is an affirmative action measure as contemplated in s 15 of the EEA.

[35] Having conceded that it discriminated against the employee, it carried the onus to justify the discrimination as fair. If the employer can show that it acted in accordance with an affirmative action measure then of course it's conduct cannot be unfair.

[36] The main issue for determination in this matter is whether the Staffing Policy is an affirmative action measure as contemplated in s 15 of the EEA. If it is not, then that is the end of the matter. If it is, the second question is whether the policy was applied fairly to the employee.

[37] In support of its submission that the Staffing Policy is an affirmative action measure, the employer referred to and relied upon a number of provisions of the policy itself. For convenience, the following relevant parts (not all relied upon by the employer) are extracted from the policy.

37.1 In the “Statement of Intent” three bullet points are relevant.

'(1) Consistent practices are applied and monitored to ensure compliance with the staffing principles and the code of good practice, the Constitution of the RSA, the relevant legislation, the CoT's conditions of service and related Council resolutions.

(2) Anyone applying for a position in the CoT is entitled to be treated in a fair, objectives and transparent manner in the evaluation of their application' and

(3) The Staffing Policy must be read in conjunction with the collective agreements and any other relevant policies, and national legislation that promote representivity.’

Clause 1.1:

'Employees are to be recruited, selected, appointed, transferred, seconded, redeployed and promoted on the basis of fairness and

non-discrimination in line with the Employment Equity Act, 1998 (Act and 55 of 1998) and the Employment Equity Policy of the City of Tshwane Metropolitan Municipality (CoT), as well as any other applicable legislation and CoT policies and applicable collective

agreements.'

Clause 1.5:

'Care must be taken that equal and similar selection processes apply to all candidates and that no exception is made that is to the advantage or disadvantage of any candidate.'

Clause 2.1:

'The objective of recruiting and selecting candidates is to invite individuals to apply, and to appoint the applicant, who is suitable

for a position, subject to collective agreement, Employment Equity Policy and any applicable legislation.'

Clause 2.2:

'The CoT is an equal opportunity employer that aims to eliminate all forms of unfair discrimination in the recruitment and selection of staff.'

Clause 3.1:

'Affirmative action means measures designed to ensure that suitably qualified people from designated groups have equal opportunities and are equitably represented in all occupational categories and levels of the workforce of the CoT.'

Clause 3.10:

'Department means the Department of the City of Tshwane Metropolitan Municipality consisted of Divisions.'

Clause 3.17:

'Fair discrimination means consistent and just differentiation between employees (applicants where applicable) for employment, e.g. to (a) take affirmative action measure is consistent with the purpose of the Employment Equity Act, 1998 (Act 55 of 1998) and (b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.'

Clause 3.45:

'Suitably qualified candidate means a person contemplated in section 20 (3) and (4) of the Employment Equity.'

Clause 5.1.1:

'Selection is conducted in accordance with this Staffing Policy, as amended from time to time and applicable at the time of selection, as well as with all applicable Bargaining Council resolutions, collective agreements and national legislation.'

Clause 5.2.1:

'Selection criteria must be based on the key performance areas and inherent requirements of the position and must be applied consistently.'

Clause 5.3.2:

'The relevant Department and the Strategic Human Resources Division (Staffing Services and Management Section) evaluate all applications

received for a specific position against the actual job requirements of the position as reflected in the person specification, such as qualifications, experience and skills.'

Clause 5.3.3:

'Candidates from designated and non-designated groups who applied for advertised posts may be excluded from the shortlisting process if it can be proved that their candidature will not promote representation in their Departments, taking into consideration the representation in the occupational categories.'

Clause 5.3.6:

'Preference in shortlisting is to be given to employees or candidates for whom the advertised position is a promotion.'

37.2 In terms of clause 5.3.7 the shortlist of candidates must be presented to amongst others the Executive Director: Strategic Human Resources and must be signed by all officials were involved in the shortlisting session.

Clause 5.3.9:

'Before the shortlisting is conducted, the relevant Department must ensure that the most recent employment equity plan or profiles or the employment equity statistics is on the table, as well as the approved organisational structure of the Department that shows Division, Section and the post in question. These documents must be sent to the Strategic Human resources Division. They will be attached to the interview documents.'

Clause 5.6.2:

'General consensus must be reached before the interview panel can make a recommendation.'

37.3 In terms of clause 5.6.4, the interview panel must make a decision in determining the successful candidate and may also identify a suitable backup candidate.

37.4 In terms of clause 5.7.8, a recognised trade union which is dissatisfied with the selection process must raise its objections before the interview panel adjourns and must submit it in writing within two working days.

Clause 8.1.1:

'No person may be appointed in the CoT unless the recruitment process described in this document has been followed, and the process and the appointment have been fair, transparent and reasonable.'

[38] What is also relevant is that on 8 May 2013, a motivation was submitted to the Mayoral Committee for the approval of the revised CoT's Employment Equity Plan and Strategy for the period 2012 to 2017.

[39] In this motivation, the following is stated:

'However, the Employment Equity Plan should not be read in isolation but should be read in conjunction and the broader understanding of the Employment Equity Policy, all human resources policies, Employment Equity Strategy and Disability Policy.'

It is important to note that no mention is made of the Staffing Policy unless it is included under '… all human resources policies'.

[40] The motivation further records that the

'… plan also seeks to address affirmative action measures has built objectives to be achieved for each year of the plan as required by section 20 (2) (a) and (b) of the Act.'

[41] In the same motivation, it is said that the Employment Equity Strategy has been developed for the city to fulfil its mission through the development of the Employment Equity Strategy, using the Employment Equity Plan, Employment Equity Policy, Disability Policy and Staffing Policy as key drivers of the strategy.

[42] Thus, the Staffing Policy is included in a basket of measures to achieve an employment equity strategy.

The statutory framework

[43] In order to determine if the Staffing Policy is an affirmative action measure and reliance thereon is justified, the discrimination as fair regard must be had to the statutory framework.

[44] The touchstone by which any measures dealing with the promotion of equality must ultimately accord with is s 9 of the Constitution, which states:

'9 Equality

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full an equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.'

[45] The EEA is intended to give effect to the right to equality. It is trite law that

'A litigant cannot circumvent legislation enacted to give effect to a constitutional right by attempting to rely directly on the

constitutional right.’[1]

[46] Amongst other things, it stipulates the requirements and governs the implementation, of affirmative action measures pursuant to the objective of substantive equality expressed in s 9(2) of the Bill of Rights. The pertinent provisions of the EEA for the purposes of this matter are sections 2,5,6,15,20 and 42, which read:

'2 Purpose of this Act

The purpose of this Act is to achieve equity in the workplace by-

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

(b 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.

….

5 Elimination of unfair discrimination

Every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment

policy or practice.

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 and birth.

(2) It is not unfair discrimination to-

(a) take affirmative action measures consistent with the purpose of this Act;

15 Affirmative action measures

(1) 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 workforce of a designated employer.

(2) Affirmative action measures implemented by a designated employer must include-

(a) measures to identify and eliminate employment barriers, including unfair discrimination, which adversely affect people from designated groups;

(b) measures designed to further diversity in the workplace based on equal dignity and respect of all people;

(c) making reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer;

(d) subject to subsection (3), measures to-

(i) ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce; and

(ii) retain and develop people from designated groups and to implement appropriate training measures, including measures in terms of an Act of Parliament providing for skills development.

(3) The measures referred to in subsection (2) (d) include preferential treatment and numerical goals, but exclude quotas.

(4) Subject to section 42, nothing in this section requires a designated employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups.

20 Employment equity plan

(1) A designated employer must prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in that employer's workforce.

(2) An employment equity plan prepared in terms of subsection (1) must state-

(a) the objectives to be achieved for each year of the plan;

(b) the affirmative action measures to be implemented as required by section 15 (2);

(c) where underrepresentation of people from designated groups has been identified by the analysis, the numerical goals to achieve the equitable representation of suitably qualified people from designated groups within each occupational category and level in the workforce, the timetable within which this is to be achieved, and the strategies intended to achieve those goals;

(d) the timetable for each year of the plan for the achievement of goals and objectives other than numerical goals;

(e) the duration of the plan, which may not be shorter than one year or longer than five years;

(f) the procedures that will be used to monitor and evaluate the implementation of the plan and whether reasonable progress is being made towards implementing employment equity;

(g) the internal procedures to resolve any dispute about the interpretation or implementation of the plan;

(h) the persons in the workforce, including senior managers, responsible for monitoring and implementing the plan; and

(i) any other prescribed matter.

(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-

(a) formal qualifications;

(b) prior learning;

(c) relevant experience; or

(d) capacity to acquire, within a reasonable time, the ability to do the job.

(4) When determining whether a person is suitably qualified for a job, an employer must-

(a) review all the factors listed in subsection (3); and

(b) determine whether that person has the ability to do the job in terms of any one of, or any combination of those factors.

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

(6) An employment equity plan may contain any other measures that are consistent with the purposes of this Act.

42 Assessment of compliance

In determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General or any person or body applying this Act must[2], in addition to the factors stated in section 15, take into account all of the following:

(a) The extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational category and level in that employer's workforce in relation to the-

(i) demographic profile of the national and regional economically active population;

(ii) pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees;

(iii) economic and financial factors relevant to the sector in which the employer operates;

(iv) present and anticipated economic and financial circumstances of the employer; and

(v) the number of present and planned vacancies that exist in the various categories and levels, and the employer's labour turnover;

(b) progress made in implementing employment equity by other designated employers operating under comparable circumstances and within the same sector;

(c) reasonable efforts made by a designated employer to implement its employment equity plan;

(d) the extent to which the designated employer has made progress in eliminating employment barriers that adversely affect people from designated groups; and

(e) any other prescribed factor.'

Analysis of the legal framework

[47] The Act contemplates, as an affirmative action measure, a plan based on prescribed information setting out numerical goals and the time period within which those numerical goals may be achieved.

[48] In the absence of a plan, an employer in making an appointment or granting promotion must have regard to the factors set out in s 15 and s 42.

[49] The Act further contemplates that the affirmative action measure must be such that it is capable of measurement and being monitored. The Department of Labour must be in a position to ensure compliance with the plan in terms of sections 15 and 42.

[50] The mere fact that the Staffing Policy is contained in a collective agreement does not shield it from scrutiny. The Labour Court in Department of the Premier, Western Cape v Plaatjies NO and Others[3] confirmed and followed a Labour Appeal Court decision as follows:

'… A collective agreement may not override statutory provisions; and … Where the effect of an agreed provision was to unfairly discriminate, its origin in a collective agreement would not constitute a justification'.

[51] Although it was not necessary for the Constitutional Court in South African Police Service v Solidarity obo Barnard[4] to evaluate whether the SAPS plan in question, in that case, was unfairly discriminatory. The court reiterated some of the considerations which a proper approach to challenges of that kind entail. Those considerations are equally relevant to determine whether the Staffing Policy qualifies as an appropriate affirmative action measure and if so, that it does not unfairly discriminate against members of the designated or non-designated groups. These considerations give direction to which measures qualify in terms of the Employment Equity Act:

[31] We must be careful that the steps taken to promote substantive equality do not unwittingly infringe the dignity of other individuals — especially those who were themselves previously disadvantaged.

[35] An allied concern of our equality guarantee is the achievement of full and equal enjoyment of all rights and freedoms. It permits legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination. Restitution or affirmative measures are steps towards the attainment of substantive equality. Steps so taken within the limits that the Constitution imposes are geared towards the advancement of equality. Their purpose is to protect and develop those persons who suffered unfair discrimination because of past injustices.

[36] The test whether a restitution measure falls within the ambit of s 9(2) is threefold. The measure must —

(a) target a particular class of people who have been susceptible to unfair discrimination;

(b) be designed to protect or advance those classes of persons; and

(c) promote the achievement of equality.

[37] Once the measure in question passes the test, it is neither unfair nor presumed to be unfair. This is so because the Constitution says so. It says measures of this order may be taken. Section 6(2) of the Act, whose object is to echo s 9(2) of the Constitution, is quite explicit that affirmative action measures are not unfair.'[5]

[52] Equality presupposes a measurable result. Simply relying on numbers without a measurable goal can only be described as a subjective barrier or form of quota to the exclusion of persons from the designated or non-designated group.

[53] Also, after noting that the respondent in Barnard had abandoned an attack on the plan and the national instruction, the Constitutional Court observed, in passing, that:

'[42] A designated employer is required to implement several measures in pursuit of affirmative action. They must identify and eliminate employment barriers, further diversify the workforce 'based on equal dignity and respect of all people' and 'retain and develop people' as well as 'implement appropriate training measures'. Section 15(3) contains a vital proviso that the measures directed at affirmative action may include preferential treatment and numerical goals but must exclude 'quotas'. Curiously, the statute does not furnish a definition of 'quotas'. This not being an appropriate case, it would be unwise to give meaning to the term. Let it suffice to observe that s 15(4) sets the tone for the flexibility and inclusiveness required to advance employment equity. It makes it quite clear that a designated employer may not adopt an employment equity policy or practice that would establish an absolute barrier to the future or continued employment or promotion of people who are not from designated groups.[6]'

[54] The Court in Solidarity v Minister of Safety and Security and Others,[7] summarised the cases prior to and after Barnard as follows:

‘[15] Before either of the judgments in Correctional Services or Public Servants Association were handed down, Tlhotlhalemaje, AJ handed down judgment in Solidarity and Others v SA Police Services and Others (JS 469/12). (Footnote omitted) In that matter, the court had to determine if a collective agreement concluded between the SAPS and other unions, but not Solidarity, was a valid affirmative action measure. For the purposes of that judgment, the Labour Court accepted that the SAPS plan was valid, as set out in the following passages:

“[33] The Collective Agreement is an affirmative action measure as conceded by Solidarity. For the purposes of these proceedings, I did not understand Solidarity’s case to be that it challenged the Employment Equity Plan as adopted in the Collective Agreement in its form, nor were the numerical targets set out in that Plan challenged. It is common cause that Solidarity has since lodged an application in this Court under case number J879/12 to seek an order setting aside the SAPS’ current Employment Equity Plan on the basis that it does not comply with the Constitution and other various statutory enactments. That matter is pending before this Court. Furthermore, Solidarity’s application in this Court under case number: J 2145/14 to seek an order that it be consulted at the level of the SSSBC in respect of the design of the Employment Equity Plan itself was dismissed, and an appeal has since been lodged in that regard.

[34] For the purposes of this application, and since it was accepted by Moseneke ACJ in Barnard that the validity of the SAPS Employment Equity Plan (A collective agreement) nor its fairness was placed in question, the Plan is indeed a valid affirmative action measure authorized by section 6(2) of the Employment Equity Act. (Footnote omitted) Equally more important is that the Plan passes the three-pronged test laid out in Van Heerden and Barnard. In this regard, Van der Westhuizen in a separate but concurring judgment in Barnard held that:

“The constitutional validity of the Act was not attacked. Section 6(2) of the Act specifically states that affirmative measures do not constitute unfair discrimination. The Employment Equity Plan as a measure (with its accompanying guidelines) passes the first two prongs. It identifies and targets categories of persons previously disadvantaged by unfair discrimination and categorises them in designated groups which must be advanced and promoted according to numerical targets' (Footnote omitted)

and,

'Therefore the implementation of the measure satisfies the third leg of the Van Heerden enquiry in that it promotes the achievement of equality….”

[35] The fact that the Employment Equity Plan is a valid affirmative action measure, or that it passed the Van Heerden test does not however necessarily imply the same with the Collective Agreement impugned despite it being accepted as an affirmative action measure. This is so in that unlike the Plan, which normally has a lifespan of five years, the Agreement was put in place for a particular purpose, and as a once-off measure or process, to populate the ranks as per the new structure over a period of 24 months. Although in implementing the Agreement numerical targets set out in the Plan were adapted, the Agreement has its own unique features, which as I understand Solidarity’s arguments are on their own or as implemented with the Plan, objectionable.”

[16] The Correctional Services judgment of the LAC dealt with a factual scenario which raised issues of law and principle, which in important respects are indistinguishable from the ones in this matter. That case concerned a number of individual coloured Correctional Service employees who believed they had been unfairly denied the opportunity of appointment or promotion because, in particular, the Correctional Services employment equity plan had failed to take account of the particular regional demographics of the Western Cape, where colourds comprise a higher proportion (approximately 50%) of the regional population than they do nationally (approximately 8.8 %).

[17] Like the matter before me, the complaint in the Correctional Services case was not that the employer had refused to deviate from the plan in particular instances, which was the underlying factual issue in Barnard, but that the equity plan itself made provision for transfers or promotions with reference to quotas strictly reflecting the national demographic representation of race and sex in the population. (Footnote omitted)

[18] In Van Heerden, the constitutional court (per Moseneke, J as he then was) set out, in summary, the three requirements of demonstrating that an affirmative action measure meets the constitutional standards set out in s 9(2) of the Constitution:

'It seems to me that to determine whether a measure falls within s 9 (2) the enquiry is threefold. The first yardstick relates to whether the measure targets persons or categories of persons who have been disadvantaged by unfair discrimination; the second is whether the measure is designed to protect or advance such persons or categories of persons; and the third requirement is whether the measure promotes the achievement of equality.' (Footnote omitted)

[19] In Correctional Services, the LAC reiterated the constitutional requirements of restitutionary measures mentioned in Van Heerden with reference to the facts before it:

“[51] Because Barnard was concerned with the decision by the National Commissioner not to appoint Captain Barnard to an advertised position, the court in that case did not have to examine the equity plan. It follows that the test set out in Van Heerden was not strictly applicable to the determination thereof. But in this case, the three criteria which the court in Van Heerden isolated in s 9(2) to test restitutionary measures are directly relevant. To recapitulate: the measure should target a category of beneficiaries disadvantaged by unfair discrimination. This is reflected in the very nature of the DCS plan. Secondly, the measure must be 'designed to protect or to advance such persons or categories of persons, and must be reasonably capable of obtaining the desired outcome'. In terms of the plan, there is a provision for deviations, which can be implemented in the event that a rigid implementation of a plan would compromise service delivery or where it would not be possible to appoint suitably qualified people from designated groups to the relevant occupational categories and levels in the workforce. If rationally implemented, these deviations ensure that the plan does not have to be implemented in a rigid fashion, in which case the plan is reasonably capable of obtaining its desired outcome of a representative workforce which is suitably qualified and achieves service delivery. Thirdly, the court in Van Heerden held that the measure must promote 'the achievement of equality'. Hence, the test is concerned to ensure that the plan does not impose disproportionate burdens or 'constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits, that our long-term constitutional goal would be threatened'. It is here that the rights of persons who are not part of the designated category can be protected. That this protection must pass through the prism of the substantive nature of the right to equality makes this the most difficult part of the enquiry.

[52] It is clear from the testimony of Mr Magagula and Mr Bonani that this was the objective which the DCS had in mind when it developed its plan to ensure substantive equality for those who suffered the most egregious forms of discrimination under apartheid. In the light of our observation regarding the third leg of the enquiry, there is a further important consideration which adds weight to the respondents' case; that is that the EEA must be read through the prism of s 9(2). Inevitably, on the reading we have given to s 9(2), weight is accorded in the balancing act to the position of the individual appellants even though there cannot be a blanket deference to a decision to promote disadvantaged groups. The EEA however recognises a need for balance. In the first place, a person appointed from a designated group must be suitably qualified for the position. Secondly, where an individual applicant possesses scarce or unique skills which are relevant to the organisational needs of the designated employer, these must be taken into account; hence the prohibition against an absolute bar to employment. Thirdly, for reasons which will become apparent presently, a consideration of regional demographics in terms of s 42 of the EEA may well come to the aid of categories of applicants who otherwise were unduly burdened by the implementation of the plan.' (Footnote omitted)

(Emphasis added)

[20] The PSA matter, like Correctional Services concerned alleged unfair discrimination against a specific individual from a designated group, in that instance an Indian male. One of the issues the court had to decide was whether the SAPS equity plan at that time (2000) was in line with the EEA. Once again, the LAC emphasised the primacy of the three pronged test for testing whether a restitution measure is compatible with what the Constitutional Court first described in detail in Van Heerden and mentioned again in Barnard. (Footnote omitted)

[21] On the facts of the case in PSA, the court found that the plan passed the first requirement of targeting a class of persons who had been susceptible to unfair discrimination and was designed to protect and advance the employment of applicants from that class. In dealing with the last prong of the test, the court found that the complainant had not been unfairly discriminated against for two reasons. Firstly, at all levels of the organisation, Africans were “hopelessly under-represented” and the plan was trying to ensure restitution took place “…in order that a broadly non-racial police force could emerge in Kwazulu-Natal, one that was not predicated on previous historical patterns”. Secondly, the difference in scores between the successful African candidate and the complainant was insignificant and the African candidate had the necessary ability to serve in the post with distinction. (Footnote omitted) Thus, having regard to the specific demographics in the province and the racial profile of the workforce with reference to the targets in the plan together with the ordinary selection criteria the balance struck between employment equity imperatives and operational needs was achieved relatively easily.

[22] In Naidoo’s case, the LAC found that the court a quo had erred in dealing with the validity of the plan because that had not been in issue before it. (Footnote omitted) Consequently, this judgment is of limited relevance to the current matter.

[23] In Correctional Services, the LAC concluded that the Department had failed to take account of regional demographics, which at the time was a mandatory requirement in terms of s 42(a)(i) of the EEA:

“[59] In summary, the respondents failed to take account of the particular regional demographics of the Western Cape which was a mandatory requirement at the time that the plan was conceived. The failure to do so could result in a large-scale reduction in the workforce of members of the designated group, who themselves had suffered egregious discrimination as a result of apartheid. 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 effective 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.” (Footnote omitted) (Emphasis added)

[24] Clearly, a feature of that case which had a material bearing on the LAC decision was that the complainants belonged to a designated group of previously disadvantaged persons and a primary objective of their challenge was to assert a claim to improve their position relative to other previously disadvantaged groups in line with their demographic profile in the economically active population in the Western Cape. In this case, the plan is attacked not with reference to the prejudice

allegedly suffered by a particular group of individual employees. Rather, the applicants contend that the very schema of the plan is such that it establishes absolute barriers to appointment or promotion the effect of which are indistinguishable from the operation of quotas.

[25] Although it was hoped that the decision in Barnard would clarify some of the issues important to this judgment because the focus of the Constitutional court was on the administrative review of the Commissioner’s specific decision not to appoint Captain Barnard to an advertised post, it shed little new light on the more difficult aspects of evaluating equity plans as such. The LAC decision in Correctional Services is more useful in relation to the critical aspect of the applicant’s case, namely whether the plan erects barriers to the employment of persons from non-disadvantaged groups amounting to quotas.’

[55] In the Solidarity-case (supra), the Court tested a SAPS employment equity plan against the legal framework and Constitutional requirements. In the same vein, the Staffing Policy also needs to meet these requirements in principle to qualify as an acceptable affirmative action measure.

[56] Firstly the affirmative action measure needs to have numerical goals '… as underrepresentation can only be determined against some kind of numerical norm.'[8]

[57] In this regard, the Code of Good Practice on the preparation, implementation and monitoring of equity plans states that:

'Numerical goals should be developed for the appointment and promotion of people from designated groups. The purpose of these goals would be to increase the representation of people from designated groups in each occupational category and level in the employer’s workforce where underrepresentation has been identified and to make the workforce reflective of the relevant demographics as provided for in form EEA8.' (My emphasis)

[58] Regulation 2(5) of the EEA General Administrative Regulations of 2009 states among other things that when a designated employer conducts the analysis required by section 19(1) of the EEA, the employer may refer to form EEA 8. The analysis in question is the analysis a designated employer must conduct of its employment policies, practices, procedures and working environment in order to identify employment barriers adversely affecting people from designated groups. Section 19(2) of the EEA requires the employer to include a profile of its workforce within each occupational category and level to determine the degree of underrepresentation of people from designated groups in the workforce. Obviously, ‘underrepresentation’ can only be determined against some kind of numerical norm.[9]

(Own emphasis)

[59] Form EEA 8, entitled ‘Annexure 1: Demographic Data’ reads:

‘Demographic Profile of the National and Regional Economically Active Population

WHAT IS THE PURPOSE OF THE DEMOCRATIC PROFILE OF THE NATIONAL AND REGIONAL ECONOMICALLY ACTIVE POPULATION AND WHERE TO FIND THEM?

Statistics South Africa provides demographic data using Labour Force Surveys from time to time. The Labour Force Surveys (LFS) that is normally released quarterly provides statistics on the national and provincial Economically Active Population (EAP) in terms of race and gender. Employers can access this information directly from Statistics South Africa. This information must be used by employers when consulting with employees, conducting an analysis and when preparing and implementing Employment Equity Plans.’

[60] There seems to be no dispute that the Staffing Policy may satisfy the first two legs of the constitutional test that a remedial measure must meet to qualify under s 9(2) of the Constitution, as laid down in Minister of Finance and Another v Van Heerden.[10] The only issue is whether it also met the third leg, namely whether the plan promoted the achievement of equality.

'The LAC identified this as the most difficult part of the test, which entails determining if the plan does not impose disproportionate

burdens or constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits, that our

long-term constitutional goal would be threatened. In Correctional Services the equity plan under consideration did satisfy the third requirement because of the existence of a deviation policy in the equity

plan.'[11]

[61] The third leg of the test is intimately bound up with the discussion of a deviation policy, which is dealt with below.

[62] The City of Tshwane in this case submitted that not only an Employment Equity Plan constitutes an affirmative action measure as contemplated in the EEA and submitted that its Staffing Policy amongst others is an affirmative action measure in itself. Is that true?

Compliance of the Staffing Policy with the EEA

[63] 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. 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 figures reflected on the form submitted to Mr Ratsiane without reference to the economically active population Mr Ratsiane did not consider either of these standards. The Staffing Policy also does not assist Mr Ratsiane as it does not have regard to numerical goals set in accordance with the economically active population. The Staffing Policy in this regard does not comply with the EEA.

[64] It has been submitted by the applicant does not provide for a flexible implementation.

[65] In Solidarity and Others v Department of Correctional Services and Others (Police and Prisons Civil Rights Union as Amicus Curiae),[12] the LAC addressed the question of when numerical employment targets used in an employment equity plan could be construed as quotas prohibited by section 15(3):

‘Evaluation of appellants' argument

[40] A 'quota' is defined in The Concise Oxford Dictionary, to the extent that it is relevant to this dispute, as 'a fixed number of a group allowed to do something e.g. Immigrants entering the country'.

[41] Much of the debate before this court turned on the distinction between a quota, which in terms of the EEA, is an impermissible mechanism, and the permissible concept of numerical targets. The key distinguishing factor between these two concepts turns, it appears, on the flexibility of the mechanism. An inflexible set of numbers with which the designated employer is required to comply 'come what may' constitutes a quota and would

therefore be in breach of s 15(3) of the EEA. By contrast, a plan based on designated groups filling specified percentages of the

workforce, but which allowed for deviations therefrom so that there was no absolute bar to present or continued employment or advancement

of people who do not fall within a designated group (s 15(4)) would pass legal muster. Similarly, a plan which provides that the numbers provided for in the plan constitute a goal to be achieved over a defined period would be congruent with the EEA. Of course, even in this case, a target may be designed to achieve a defined goal in a specified period, after which, absent some room for flexibility, the target could become a quota. If the plan is inflexible, then it must be struck down. See in this connection SA Restructuring & Insolvency Practitioners Association v Minister of Justice and Constitutional Development and Others (2015 WCC case no 4314/2014).’(Emphasis added)

[66] The Staffing Policy in the first place does not provide for numerical targets. Secondly, it does not make provision for a flexible implementation. This resulted in Mr. Ratsiane adopting an inflexible approach and blindly adopting the representivity figures before him as the only information he had to consider.

[67] The LAC found that the Department of Correctional Services equity plan did provide for deviations from the attainment of numerical goals when making appointments or promotions or promotions in certain circumstances. This was sufficient not only to avoid the conclusion that the Correctional services plan did not establish quotas but was also sufficient for the plan to pass constitutional

muster in terms of the third prong of the test set out in Van Heerden for evaluating remedial measures under s 9(2) of the Constitution:

‘In terms of the plan, there is a provision for deviations, which can be implemented in the event that a rigid implementation of a plan would compromise service delivery or where it would not be possible to appoint suitably qualified people from designated groups to the relevant occupational categories and levels in the workforce.’[13]

‘As indicated, we do not consider that a deviation plan that focuses exclusively on organisational need and the consequent assessment of skills, experience and the ability of an individual applicant to fulfil these defined needs renders such a plan unconstitutional.’[14]

[68] The Staffing Policy, in this regard, does not comply with the EEA. To the extent that it provides for a motivation to deviate from applying affirmative action measures, Mr. Ratsiane ignored the memorandum that accompanied the recommendation of shortlisted applicants submitted to him for his approval.

[69] In this instance, unlike in the Correctional Services matter (supra), there is no provision in the Staffing Policy setting out the circumstances in which a deviation from the Staffing Policy would be acceptable. Any member of management dealing with appointments or promotions would find no guidance in the Staffing Policy as to when or on what basis, it would be acceptable to make recommendations or decisions on employment or promotion that did not advance the goals set out in the Staffing Policy and which also would not negatively affect their own performance assessment or possibly result in disciplinary action being taken against them. On the wording of the Staffing Policy itself, it does not cater for exceptions. The Staffing Policy clearly relies upon other information for decision making.

[70] What is lacking in the Staffing Policy is a provision that tells decision makers under what circumstances can the pursuit of the figures put on the table (in the absence of a plan) yield to other considerations when recommending or making an appointment. Clause 5.3.9 that requires that '… the most recent employment equity plan or profiles or the employment equity statistics is on the table' (own emphasis) does not meet the requirements of the EEA to provide for a flexible

approach and to achieve equity. It is impossible for any decision maker to recommend or make an appointment based simply on the

statistics or simply on the employment profile without having regard to the numerical goals and an endeavour to achieve equity.

[71] The City of Tshwane, in this case, in support of its submission that not only an Employment Equity Plan constitutes an affirmative action measure as contemplated in the EEA relied upon a number of other authorities for its proposition that its Staffing Policy, amongst others, is an affirmative action measure in itself.

[72] The first is Willemse v Patelia N.O.and Others[15] wherein the Labour Court has said that:

'An Employment Equity Plan is helpful as a framework within which to determine the fairness of an employer's discriminatory decisions when it purports to make appointments, or refuses to make them, in furtherance of the employer's employment equity objectives'.

[73] In this case, the Court, however, further held that it was satisfied that the fact that the employer did not have an Employment Equity Plan as required does not in and by itself render the refusal to promote the employee unfair.

[74] It is, however, important to note that the court also said the following:

'Whilst the DEAT did not have a formal employment equity plan at the time the acting director-general refused the recommendation to promote Dr Willemse, the evidence before the arbitrator did disclose that the DEAT was operating within a framework of policy statements as well as targets with reference to its employment equity goals and objectives.'[16] (Own emphasis)

[75] The second authority is that of NEHAWU obo Manyana and Another v Masege N.O. and Others:[17]

'In any event, and as a matter of law, the absence of an Employment equity Plan cannot stand in the way of the employer nonetheless

applying considerations relating to employment equity when deciding whether to make appointments, which, in casu, and on the reasoning provided by the Third Respondent at the time, related to the underrepresentation of black females.'

[76] This remark, however, was made in a judgment reviewing an arbitration award and did not in any detail examine the validity of an affirmative action measure as such. The Commissioner in the award held that the alleged unfair promotion claim of the applicants in the matter could not succeed:

76.1 They applied for the promotional posts but were not appointed as nobody was appointed.

76.2 The evidence was that the posts were frozen.

76.3 A black female applied for a similar post in another province and was successful. The employer's justification for this appointment was that for affirmative action reasons she was the best candidate. The appointment was made prior to the posts being frozen.

[77] The Judge agreed with the observation that in the absence of an employment equity plan, employers are entitled, for employment equity considerations, to select the best candidate. The employer in question (as in this case) had a Human Resources policy in place. The policy recorded that the employer supports and practices employment equity by affording preferential treatment to suitably qualified applicants from designated groups and giving special attention to under-represented designated groups. This, however, was an obiter finding in the context of the review application as the Commissioner held that the post were in any event frozen.

Further evaluation of the Staffing Policy

[78] The test for an affirmative action measure in compliance with the Act was restated in the Barnard-case and has been followed in the Labour Court.

[79] Applying the test to the Staffing Policy, it is evident that sections of the Staffing Policy are designed and intended to target a particular class of people who have been susceptible to unfair discrimination; (b) designed to protect or advance those classes of persons; and (c) promote the achievement of equality as required by the test.

[80] The employer did not show that in relying on the policy, other than what was the position in the Willemse-case, that the city of Tshwane:[18]

'… was operating within a framework of policy statements as well as targets with reference to its employment equity goals and objectives'.

[81] It may well be that the employer may have had in place other policies and codes employment equity targets, numerical goals and objectives as contemplated in the EEA and in the Willemse-case. This is not what the employer pleaded. The employer also did not present any evidence of any existing targets, numerical goals and objectives. The only reference to is to be found in the motivation that accompanied the Employment Equity Plan when presented to the employer for approval. It is clear from the motivation that the other pillars of the Employment Equity Strategy had expired.’

[82] The Staffing Policy also fell short of compliance with the EEA in that it clearly does not contain the results of the investigation that an employer must conduct for purposes of designing and implementing affirmative action measures.

[83] The EEA clearly envisages a structured approach to the implementation of affirmative action measures. The measures must be such that, amongst others, there are targets, numerical goals and objectives that can be monitored and measured. The Staffing Policy lacks this.

[84] In the absence of measurable numerical targets and properly formulated measures, it would be impossible for an applicant who is excluded from promotion or an appointment to challenge the process and to uphold his or her human dignity.

[85] Mr Ratsiane's reliance on clause 5.3.3 for the exclusion of the employee from the shortlist is also misplaced. This clause clearly requires something more. It requires proof that the employee's candidature would not promote representation in his Department, taking into consideration also representation in the occupational categories.

[86] The policy does not define occupational categories. Logically, these can only be the six occupational categories or levels envisaged by the Act. It was incumbent upon Mr Ratsiane to have regard to the broader representivity issues including targets, numerical goals and objectives.

[87] He failed to do so because the Staffing Policy was one of a basket of measures upon which he should have relied. The absence of a plan at the time made that virtually impossible.

[88] It is safe to assume that when the collective agreement containing the Staffing Policy was entered into, it was done on the understanding that the employer would have, as it is obliged to do, an employment equity plan in place. The employer is a designated employer and obliged to submit and act in accordance with an employment equity plan. Because of a prior merger with two other municipalities, the plan for the period 2012-2017 was delayed.

[89] It is also evident that the employer had more than a Staffing Policy. It normally operates within the confines of an Employment Equity Plan, an Employment Equity Strategy and its own Code. The Staffing Policy is one pillar of its affirmative action strategy and measures.

[90] The employer did not plead justification for the exclusion of the employee on the basis of race and gender other than in terms of the then non-existent employment equity plan and its Staffing Policy. It then failed to present evidence on the targets, numerical goals or any objectives other than what was contained in the policy. The Staffing Policy primarily contains objectives in principle.

[91] Mr Ratsiane's fixation with those figures that he saw on the form that he had to approve caused him to close his mind to the fact that:

[91.1] There was a motivation in support of including a candidate from a non-designated group (flexibility), and

[91.2] There were broader considerations of equity to be considered.

[92] The employer, therefore, has failed to prove that the candidature of the employee would not promote representation in the occupational categories. In this sense, it did not comply with its own policy. I have already indicated that the policy, in my view, in itself does not constitute an affirmative action measure as contemplated by the EEA.

[93] There is no basis in law for Mr Ratsiane to have excluded suitable candidates from the interview process. The design of the EEA is to allow "suitable", as defined, candidates from the designated groups to compete with those suitable candidates from the non-designated group and to ensure that they benefit from the affirmative action measures.

Relief

[94] The interview panel recommended the employee for appointment to the post. The only objection, according to Mr Ratsiane, was after the interviews from the union based on employment equity considerations. Such an objection in the absence of targets, numerical goals or any objectives is unsustainable. Save for the objection based on affirmative action considerations after the interviews, there was no objection against the employee being the best suitable candidate for the post.

[95] But for the disqualification of the employee by Mr Ratsiane on the basis of race and gender on the workforce profile figures for that section, the employer has not shown that there was any bar to the appointment of the employee.

[96] The evidence that service delivery has been and is suffering as long as the post remains vacant was not disputed by the employer other than in cross-examination. The employer denied that that was the position but did not present any evidence contradicting that of the applicant or Mr Cassel.

[97] This court is empowered to provide appropriate relief to the employee. This may include payment of compensation or appointment to the position with or without payment of compensation.

[98] The employee has been subjected to the interview process. When Mr Ratsiane nullified the process and thereby the recommendation that he acted upon his belief that he lawfully and fairly had excluded the employee from the shortlist. That, however, is not the case. The recruitment process and the recommendation should stand.

[99] The employer has not presented any evidence to show that in terms of its current employment equity plan for the period 2012-2017, the appointment of the employee at this point in time would adversely affect its employment equity targets, goals and objectives either.

[100] The City of Tshwane is directed to appoint Mr JL Pretorius with effect from 1 May 2016 to the position that he was recommended for, that is, the position Foreman: Trades.

[101] The employer provided the employee with the outcome of his grievance in respect of the non-appointment on 8 October 2013. The outcome is based upon Mr Ratsiane's understanding of his powers and duties in terms of the Staffing Policy. The date of 8 October 2013 is close enough to the date when the employer would have appointed the employee had the grievance been successful.

[102] It is fair to the employer and the employee for the employer to compensate the employee for the period 8 October 2013 to 30 April 2016. The compensation should be equal to the difference between what the employee earned and what the employee would have earned in the post had he been appointed on 8 October 2013.

[103] Both parties have argued in favour of a cost order. I can see no reason why I should not make a cost order in accordance with what the parties wanted. There is no reason to disregard their arguments.

[104] The Court has been asked to order the City of Tshwane in future not to exclude candidates from shortlisting for employment equity considerations.

[105] This case is about the position of Mr Pretorius. The relief is directed at Mr Pretorius.

[106] I make the following order:

1. The first respondent is ordered to appoint Mr JL Pretorius to the position of Foreman: Trades in the Department of Water and Sanitation in the City of Tshwane with effect from 1 May 2016.

2. The first respondent is ordered to pay compensation to Mr JL Pretorius equal to the difference between what he has earned and what he would have earned in the post of Foreman: Trades during the period 8 October 2013 to 30 April 2016.

3. The first respondent is ordered to pay the applicant's costs.

___________

Coetzee AJ

Acting Judge of the Labour Court

Appearances:

For the applicant:

Advocate M J Engelbrecht

Instructed by:

Serfontein Viljoen & Swart

For the First Respondent: Advocate Wilhelm P Bekker

Instructed by:

Gildenhuys Malatji Inc

[1] MEC for Education: KwaZulu Natal v Pillay 2008 1 SA 474 (CC)at para [40]

[2] The word “must” was replaced with “may” by the Employment Equity Amendment Act 47 of 2013, with effect from 1 August 2014.

[3] (2013) 34 ILJ 2876 (LC) at para 41.

[4] (2014) 35 ILJ 2981 (CC).

[5] Ibid at paras 30-37.

[6] Ibid at para 42.

[7] (J879/12) [2016] ZALCJHB 15 (26 January 2016) at paras 15-25.

[8] Solidarity v Minister of Safety and Security and Others (supra) at para 43

[9] Ibid at para 43

[10] [2004] ZACC 3; 2004 (6) SA 121 (CC).

[11] Solidarity v Minister of Safety and Security and Others (supra) at para 49

[12] (2015) 36 ILJ 1848 (LAC) at paras 40-41.

[13] Van Heerden at para 51.

[14] Ibid at para 70.

[15] (2007) 28 ILJ 428 (LC) at para 34.

[16] Ibid.

[17] (Case No JR 363/2012) 2014 ZALCJHB 124 (8 April 2014) at para 53.

[18] Fn 27