IN THE LABOUR COURT OF SOUTH AFRICA (HELD AT CAPE TOWN)
CASE NO.: C 368/2012
In the matter between
SOLIDARITY - First Applicant
PJ DAVIDS - Second Applicant
CF FEBRUARY - Third Applicant
AJ JONKERS - Fourth Applicant
LJ FORTUIN - Fifth Applicant
GM BAARTMAN - Sixth Applicant
and
DEPARTMENT OF CORRECTIONAL SERVICES - First Respondent
THE MINISTER OF CORRECTIONAL SERVICES - Second Respondent
THE NATIONAL COMMISSIONER OF THE DEPARTMENT OF CORRECTIONAL SERVICES - Third Respondent
THE MINISTER OF LABOUR - Fourth respondent
APPLICANTS' STATEMENT OF CLAIM IN TERMS OF RULE 6 OF THE RULES OF THE LABOUR COURT
TAKE NOTICE THAT the first to sixth applicants will accept notices and service of all documents in this matter at the following address:
SERFONTEIN VILJOEN & SWART ATTORNEYS
Attorneys for the applicants
165 Alexander Street
Brooklyn
Pretoria
0181
Reference Mr Swart/Claassen/fb/CS0070
c/o BARGRAIMS ATTORNEYS
5 De Lorentz Street
Gardens
Cape Town
8001
Reference Mr Michael Bargraims
TAKE NOTICE FURTHER THAT any of the respondents who intend opposing the matter must, in accordance with rule 6(3) of the Rules of the above honourable Court, deliver a response within 10 days of service of this statement, failing which the matter may be heard in that party's absence and an order for costs may be made against that party.
SUBSTANTIVE CLAIM
DETAILS OF THE PARTIES
The applicants
1. The first applicant is Solidarity, a trade union duly registered in terms of the Labour Relations Act No 66 of 1995 (‘the LRA') with its principal office situated at c/o DF Malan Avenue and Eendracht Street, Kloofsig, Pretoria.
2. In launching this application, Solidarity acts -
2.1. in its own interest; and
2.2. on behalf of the second to sixth applicants, all of whom are paid - up members of Solidarity, in accordance with section 200 of the LRA.
2.3. in the interests of its members generally who, as employees (‘the affected employees') in the Department of Correctional Services (‘the DCS'), have suffered actual or potential prejudice in consequence of the employment policies currently being pursued by the DCS;
3. The second applicant is Pieter Johannes Davids, an adult male currently employed by DCS in the rank of Senior Correctional Officer at the component CC Staff Support at Centre Level (within the correctional centre).
4. The third applicant is Christopher Francis February, an adult male currently employed by DCS in the position of Finance Clerk at the component Financial Accounting Voorberg Management Area and acting in the position of Senior State Accountant.
5. The fourth applicant is Andre James Jonkers, and adult male currently employed by DCS in the position of Human Resources Development Practitioner at West Coast Management Area, Malmesbury.
6. The fifth applicant is Linda-Jeanne Fortuin, an adult female currently employed by DCS in the position of Area Coordinator Corporate Services, Brandvlei Correctional Centre.
7. The sixth applicant is Geo-Nita Monrovia Baartman, an adult female currently employed by DCS in the position of Senior State Accountant Financial Accounting, Malmesbury.
The respondents
8. The first respondent is the Department of Correctional Services, already designated as the DCS.
8.1. The DCS is an organ of state as contemplated in terms of section 239 of the Constitution of the Republic of South Africa 3 of 1996 (‘the Constitution');
8.2. It is established in terms of the Correctional Service Act 111 of 1998 (‘the CS Act');
8.3. It is headed by the second respondent, the Minister of Correctional Services (‘the Correctional Services Minister').
9. The second respondent is the Minister of Correctional Services, cited in her official capacity as such.
10. The third respondent is the National Commissioner of the Department of Correctional Services, cited in his official capacity as such.
11. The fourth respondent is the Minister of Labour (‘the Labour Minister'), cited in her official capacity as such.
11.1. The Labour Minister is the head of the Department of Labour.
11.2. In this capacity she receives reports of employment equity plans that have been prepared and presented under s 21 of the Employment Equity Act (‘EEA').
11.3. Among the plans in question is the one that is the subject of scrutiny in the present proceedings.
11.4. In consequence, she is cited in order to preserve such interest as she may have in the outcome of these proceedings.
12. By law process can properly be served on the respondents at the offices of the State Attorney, Ground Floor, Salu Building, 225 Schoeman Street, cnr Andries & Schoeman Street, Pretoria 0001.
JURISDICTION
13. This honourable court enjoys jurisdiction over the claims of the applicants, based as they are on alleged unfair discrimination in employment, by virtue of -
13.1. s 6 of the EEA, which prohibits unfair discrimination against employees in any employment policies and/or practices, read with -
13.1.1. s 10(6) of the EEA, which grants parties the right to refer a dispute to this honourable Court where a dispute remains unresolved after conciliation; 13.1.2. s 49 of the EEA, which confers jurisdiction upon this honourable court to determine any dispute about the interpretation or application of the statute;
13.2. s 157(2) of the LRA, which confers jurisdiction on this Court where alleged or threatened violations of fundamental rights occur in employment and labour relations sphere.
14. The individual applicants live and work in the Western Cape and, as a result, it is desirable and proper that the Labour Court in Cape Town should entertain these proceedings.
STATEMENT OF FACTS THAT WILL BE RELIED ON BY ALL APPLICANTS
History of equity plans adopted by DCS
15. In January 2000, the DCS adopted a plan, the DCS EE Plan that was intended to give effect to the EEA. A new version of the Plan was approved in October 2006 and its full implementation took effect in April 2007. By June 2009 the DCS was able to record its satisfaction with the fact that ‘[r]epresentation of Africans is quite significant and there is marked progress in the employment of females within the department'. The result, the DCS felt free to state, was that the downgrading of other race groups was being achieved: ‘[d]own management of White colleagues in general is progressing well whilst that of our Coloured colleagues is a bit slow'.
16. An internal memorandum dated 30 June 2010, prepared by the Director Employment Equity of DCS and signed off by her on 6 July 2010, sought approval for a DCS EE Plan for the period 2010 to 2014. On 12 July 2010, DC: Equity & Recreation recommended adoption of the proposals contained and that the National Commissioner approved of the recommendations on 7 September 2010.
Salient features of the DCS EE Plan
17. Paragraph 3 of the Plan states that DCS has developed a ‘subsequent Draft Employment Equity Plan that will span from 1 April 2010 to 31 December 2014' and that the development of the plan was ‘informed by the "Mid-year population estimates of South Africa by population group and gender, 2005" of economical [sic] active persons'.
18. Paragraph 3.1 of the Plan states that:
18.1. ‘At salary levels 3-8, the 60%:40% (males against females) EE target should remain';
18.2. ‘At salary levels 9-10, 50%:50% (Males against Females) EE target is proposed for the next 5 years a move away from 60%:40% to bring about equity at this level and prepare women for middle management positions';
18.3. ‘At salary levels 11 - 12, a 50%:50% (Males against Females) EE target is also recommended for the next 5 years to create a pool to tap on internally when filling Senior Management positions';
18.4. ‘At salary levels 13 - 16, the 50%:50% (Males against Females) EE target should remain as approved by Cabinet';
18.5. ‘The 2% target for People with Disabilities, (PwD's) at all salary levels should also remain as per Cabinet Approval'; and
18.6. ‘Upon approval, the Employment Equity Plan should form part of the Senior Manager's Performance Agreements as required by the Presidency to advance progression of PwD's and women as the most previously disadvantaged groups'.
19. In paragraph 2 of the Plan, the point is made that the ‘recruitment and selection processes must be employment equity driven as a measure of ensuring that short listing and all appointments are informed by the EE Plan' and that regional implementation plans are to be ‘aligned to the National Plan'. Paragraph 12 goes on to state that the ‘limitations and shortcomings' of the Plan's previous iteration included the fact that9 ‘[r]ecruitment and selection processes were not always EE Plan driven as some appointments that were made were not compliant with the EE targets'.
20. The DCS EE Plan contains a matrix with the organisational categories within the DCS and the number of positions filled within these categories. The targets are:
20.1. African males and females - 79,3%
20.2. White males and females - 9,3%
20.3. Coloured males and females - 8,8%
20.4. Indian males and females - 2,5%
Final Approved DCS AA Programme
21. At the same time, the DCS also adopted the so-called ‘Final Approved DCS AA Programme', approved by National Commissioner on 7 September 2010 (‘DCS AA Programme').
21.1. Paragraph 2.2. of the DCS AA Programme records that ‘[w]hile the programme targets employees from the designated groups, the department acknowledges the need to accommodate required scarce skill areas, the need for mentoring and coaching and as such non-designated employees would not be excluded'.
21.2. Paragraph 2.4 of the document states that ‘[t]he programme shall recognize that even among the designated groups, varying levels of representativity do exist within the organization, e.g. Coloured males in relation to African males, White females in relation to Coloured females and African females in general, in-10 relation to the representation needs of the organization as per the DCS' Employment Equity Plan'.
22. The beneficiaries of the DCS AA Programme are identified as women of all racial groups, persons with disabilities of all races and ‘Blacks (Africans, Coloureds and Indians', but the document goes on to state in paragraph 3 that ‘[o]ccupational categories and levels where under-representativity [sic] has been identified in terms of the Departmental Employment Equity Plan will receive specific focus'.
23.
23.1. Point 6 in the programme of action, which is to be found in paragraph 6 of the Programme, identifies as a barrier that ‘Recruitment and Selection practices do not consider representativity [sic]'. In order to rectify this perceived problem, the Plan states, recruitment practices must comply with the DCS EE Plan specifically by ensuring that ‘[s]hort listing processes [are] driven by Employment Equity Targets'.
23.2. This result is to be achieved in the following manner: ‘Directorate Equity to be informed in advance of envisaged advertisements to enable the directorate to provide accurate targets to relevant areas and responsible persons'. In accordance with point ten of the programme of action, employment equity compliance are included as part of the ‘normative performance standard'.
24. Paragraph 10 of the Plan reiterated the position that the ‘National Commissioner has the prerogative to appoint any candidate in accordance with the departmental Employment 11 Equity Plan and is the only person who may deviate with valid documented reasons that will stand the test in the court of law'.
Concerns about DCS EE Plan and DCS AA Programme
25. During the National Commissioner's visit to Brandvlei management area on 18 February 2011, he addressed a group of managers and confirmed that certain problems had been raised, amongst others that:
25.1. the implementation and enforcement of national equity targets in DCS causes dissatisfaction because it is seen as unfair discrimination;
25.2. so-called ‘Coloured' personnel were increasingly displaying a lack of enthusiasm, particularly because they perceive that they cannot be promoted within DCS;
25.3. the perception exists among employees that affirmative action measures within DCS are aimed at benefiting only Africans, even though affirmative action is officially directed at all black people (as defined in the EEA);
25.4. the implementation of the DCS EE Plan amounted to racial profiling of the sort that ought not to be tolerated in a post-apartheid South Africa;
25.5. employees not classified as Africans are unwilling to act in vacant positions, because they are not considered for promotion to such positions;
25.6. many prisons and management areas situated in traditional Afrikaans towns do not have English schools where the children of African appointees can be accommodated;
25.7. much-needed appointments in vacant social worker posts and other occupational classes cannot be effected where the applicants are not Africans, although the majority of the prison population in the Western Cape is Afrikaans-speaking and in need of programmes and services rendered in that language;
25.8. little or no regard is given to effectiveness and organisational interest in the filling of positions;
25.9. there is no official classification with regard to race that can be applied; and/or
25.10. the statistics employed to set targets are outdated.
26. On 2 June 2011, a consultative meeting concerning the application of employment equity targets was held at Pollsmoor. Another meeting was convened on 24 June 2011.
At these meetings, the following issues were raised:
26.1. The DCS EE Plan has the perverse consequence that the needs of the DCS are not met.
26.1.1. DCS requires the services of an Afrikaans-speaking social worker, but it is virtually impossible to ensure the appointment of such person, because the employment equity targets require the appointment of Africans only.
26.1.2. equity targets result in a negative impact on the appointment of staff with specialised skills in certain occupational classes.
26.2. The DCS EE Plan deviates from the EEA, which identifies Coloureds, Indians and females of all race groups as designated groups.
26.3. The principles enshrined in the EEA are not applied when the DCS EE Plan and DCS AA Programme are followed. In accordance with the EEA:
26.3.1. considerations such as the retention of skill and the efficient operation of the organisation, service delivery and good administration are to be taken into account;
26.3.2. employment equity is not merely about chasing targets and employers are required to systematically develop the workforce.
26.4. Mechanical compliance with the EEA does not amount to genuine compliance.
26.5. National targets are not workable in the Western Cape.
27. On 24 June 2011, the Regional Commissioner Correctional Services Western Cape received a letter from the National Commissioner.
27.1. In a facsimile dispatched to Regional Commissioners on that same date, the National Commissioner instructed Regional Equity Managers to become involved in the short listing process and said that employment equity targets should be made available to all selection and interview panels. Panel members were to ‘comply with EE targets'.
27.2. Regional Managers were advised that the National Commissioner was ‘the only person mandated to effect an appointment that is not in line with the [DCS] EE Plan with reasons that would stand the test in a court of law to avoid setting unnecessary precedents'.
27.3. In approving the instruction, the National Commissioner noted that ‘[c]ompliance with Employment Equity is fundamental and not negotiable'.
28. In paragraph 2 of the DCS Employment Equity Plan Circular No 01 of 2011/12 of 27 June 2011, issued by the National Commissioner, it is stated that -
28.1. the DCS ‘is a national department as opposed to a provincial department and as such has one employment equity plan (EE Plan) also referred to as the DCS EE plan or National Plan';
28.2. the DCS EE Plan ‘requires Regions to develop their own "EE Implementation Plans" that are aligned to the National Plan, not regional plans';
28.3. in the DCS EE Plan ‘numerical goals have been determined by analysing the national demographic profile of the economically active population provided by statistics South Africa';
28.4. ‘Regions are not to develop their own regional plans based on the regional demographic profile of the economically active population but that the different regions are to develop own EE implementation plans to work towards realization of the national numerical goals set for the entire department';
28.5. ‘deviations or any appointment that is against the EE Plan is effected by the National Commissioner as the only person mandated to do so'.
28.6. ‘Senior Managers must ensure that selection processes are EE Plan driven and that Equity Targets are used as one of the short listing criteria'.
STATEMENT OF THE FACTS SPECIFICALLY PERTAINING TO THE INDIVIDUAL APPLICANTS
The second applicant
29. The second applicant is a white male currently employed by DCS in the rank of Senior Correctional Officer at the component CC Staff Support at Centre Level (within the correctional centre). He commenced employment on 1 December 1986 and currently earns a gross salary of R20 869.50 per month.
30. On 23 and 26 of July 2010 the first respondent internally advertised the position of Assistant Director Human Resources Administration, Allandale Management Area Western Cape region. The second applicant applied for the position and was shortlisted with four other candidates. After the candidates were interviewed on 23 September 2010, he was strongly recommended as the first and only candidate for the position.
31. On 23 October 2011 the second applicant saw that the position for which he had applied was being re-advertised in Rapport newspaper. From this he deduced that his application for the position had been rejected.
32. Arising out of the rejection of his application, the second applicant lodged a grievance on 26 October 2011.
32.1. On 1 November 2011, the Area Commissioner, Allandale Management Area stated that his grievance was being referred to the offices of the Regional Commissioner for consideration.
32.2. On 9 January 2012 the second applicant was told that the grievance was regarded as finalized at management area level and was being forwarded to the Regional Commissioner's office.
32.3. No feedback has been received from the Regional Commissioner.
33. During February 2012, the second applicant received an internal memorandum concerning a ‘request to effect an appointment that is in deviation to the EE Plan of the Department of Correctional Services: Mr PJ Davids: ASD HR Administration: Allandale Management Area: Western Cape Region'. The recommendation was supported by the Acting Regional Commissioner of the Western Cape Region on 29 December 2010.
34. From the document it was clear that the purpose of the memorandum was to obtain permission from the National Commissioner to appoint the second applicant to the position for which he had applied - a so-called ‘deviation' from the DCS EE Plan. The document confirmed the second applicant had been strongly recommended for appointment, that no other candidate had been recommended for appointment to the relevant position and that the failure to fill the position, which had been vacant for a long time, was having a negative impact on service delivery at Allandale.
35. After considering the request for deviation, the Director Equity recommended that that the region re-shortlist and that consideration be given to the headhunting of a candidate that would meet the requirements of the EE Plan. On 2 February 2011, the Acting Divisional Commissioner Human Recourses Management recommended that the 17 position be re-advertised. The National Commissioner confirmed this recommendation on 9 September 2011.
36. The position was filled after a shortlisting and interview process during February 2012.
The second applicant had again applied for the position, but was not shortlisted in this process.
The third applicant
37. The third applicant is a coloured male currently employed by the DCS in the position of Finance Clerk at the component Financial Accounting Voorberg Management Area and is currently acting in the position of Senior State Accountant. He commenced employment on 7 February 1996 and currently earns a gross salary of R166 980, per annum.
38. On the 23 and 26 July 2010 DCS internally advertised the position of Senior State Accountant in the component Financial Accounting in the Voorberg Management Area.
This was a post in which the third applicant was acting at the time. The third applicant applied for the position and was shortlisted together with five other candidates. The candidates, including the third applicant, were interviewed on 13 October 2010. The third applicant was strongly recommended as the best candidate for the position.
39. On 29 December 2010, the Acting Regional Head Corporate Services forwarded an internal memorandum to the National Commissioner in which he requested to effect an appointment by way a deviation from the DCS EE Plan. The request related to the third applicant. In the internal memorandum in question, it was confirmed that the third 18 applicant stood head and shoulders above the remainder of the applicants. It was also pointed out that the third applicant had been acting the position for an extensive period.
Finally, it was stressed that the position had been vacant for quite some time and that this fact had a negative impact on proper service delivery at Voorberg.
40. On same date, the Acting Regional Commissioner: Western Cape Region confirmed that he supported the application for deviation. On 28 January 2011 the Director Equity indicated that the appointment of the recommended candidate was not in line with the DCS EE Plan. It was observed that the second recommended candidate (an African female) was in line with the DCS EE Plan and therefore that the appointment of that individual was supported by the Director Equity. The Acting Director Human Resources Management supported this recommendation on 2 February 2011.
41. On 9 September 2011 the National Commissioner declined to grant the application for deviation. In the meantime, however, the second recommended candidate had been appointed in the same position in a different area. It was requested that the position be re-advertised, which request was approved.
42. The third applicant lodged a grievance on 16 May 2011 and requested reasons for the failure to appoint him.
42.1. On 30 June 2011, the Regional Head Corporate Services Western Cape informed the third applicant that the appointment memorandum for the position was still being processed and the delegated authority had not taken the decision in this regard.
42.2. The third applicant received no further communication regarding his grievance, and only learnt that he was not to be appointed when the position was readvertised during October of 2011.
42.3. The position has yet to be filled and the third applicant is currently still acting in the position.
The fourth applicant
43. The fourth applicant is a coloured male currently employed by DCS in the position of Human Resources Development Practitioner at West Coast Management Area, Malmesbury. He commenced employment with the Respondent on 6 February 1997 and currently earns a gross salary of R12 471 per month.
44. Since the fourth applicant's appointment in the division Human Resources Development in 2005, he has twice acted in the position of Manager in the Training Division for a total of nearly five years.
45. In 2008 the position was advertised and he was shortlisted and interviewed. The appointee, an African female named Ms Sigamla, vacated the post two years later in the course of ‘migrating' to the Centre, and the fourth applicant was again required to act in the position. In January 2011 the fourth applicant was invited to an interview for the position of Senior Administrative Officer: Human Resources Development: West Coast, in which he had acted. The fourth applicant was not appointed and instead a Mr Magaqa, an African male, was appointed.
46. On 20 July 2011 the fourth applicant applied for the position of Senior Administrative Officer Human Resources Development in the management areas of Allandale, Voorberg, Breede River and Pollsmoor. Though shortlisted and interviewed, he was once more overlooked in favour of Mr Arumugam (Indian) for position Allandale, Mrs Mtembu (African) for position Pollsmoor, Mrs. Molisi (African) for position Breede River and Mr Nkqayi (African) for position Voorberg. Mr Nkqayi's appointment was, however, withdrawn and the position was re-advertised. The pattern was repeated in January 2012, when the position at Voorberg was advertised, together with the same position at Goodwood. The fourth applicant was once again interviewed, but an African female, Ms QM Meti, and an African male, Mr Radebe were appointed.
47. The fourth applicant lodged a formal grievance on 16 September 2011 in which he requested reasons for his non-appointment. On 11 October 2011 he received correspondence from DCS in which it was inter alia indicated that he was not the recommended candidate and if he was not satisfied with the outcome he should explore other external remedies in accordance with the LRA. The fourth applicant believes that the true reason is that he is a coloured and not and African.
The fifth applicant
48. The fifth applicant is a coloured female currently employed by DCS in the position of Area Coordinator: Corporate Services, Brandvlei Correctional Centre. She commenced employment on 10 March 1986 and currently earns a gross salary of R32416.53 per month.
49. During August 2010, the applicant applied for three positions within the Department: Senior Manager Services, Head of Centre Area Coordinator Pollsmoor, and Director Regional Head Corrections Free State and Northern Cape. She was invited to interviews on 13 and 14 October 2010. Her applications were rejected in their entirety even though she was the recommended candidate for position of Area Coordinator Pollsmoor. On 30 October 2011 this position, as well as Regional Head Corrections Free State, was re-advertised. No appointment has yet been made and the position is still vacant.
The sixth applicant
50. The sixth applicant is a coloured female currently employed by DCS in the position of Senior State Accountant: financial Accounting Malmesbury. She commenced employment with the First Respondent on 1 March 1999 and currently earns a gross salary of R16935.00 per month.
51. On 15 October 2010 the sixth applicant was interviewed for the position of in which she was currently acting - Assistant Director Manager Financial and Management Accounting Malmesbury Area. The other candidates were four African females and one African male. The sixth applicant was recommended for the position in question and the panel requested approval from the National Commissioner to deviate from the DCS EE Plan.
52. Despite this, it was decided that the second candidate, an African female, be appointed.
Before the decision could be implemented, however, the candidate had already been appointed to a position for which she had applied at Breede River. Steps were taken to 22 re-advertise the post but, in a change of tack, the DCS withdrew the advertisement and recommended the appointment of the third candidate, an African male. The recommendation was never implemented, however, because this candidate elected not to accept the appointment. To date, the position has not been re-advertised.
Individual applicants' ability to perform
53. The second to sixth applicants are able to perform the functions and responsibilities attached to the positions for which they applied and for which they had been recommended, alternatively for which they were the best candidate.
54. Their appointment in each case was declined solely on the grounds of their race or gender or both and because it would have resulted in a deviation from the DCS EE Plan.
CONCLUSIONS OF LAW
55. The contentions and conclusions of law upon which the applicants rely are set out below.
Individual applicants specifically
56. The second applicant:
56.1. the second applicant was the only recommended candidate for the position of Assistant Director Human Resources Administration;
56.2. the second applicant was denied appointment to the position of Assistant Director Human Resources Administration -
56.2.1. owing to the fact that he is white, and the actions taken by his employer therefore amount to unfair discrimination based on racial considerations;
and/or
56.2.2. owing to the fact that he is male, and the actions taken by his employer therefore amount to unfair discrimination based on gender.
57. The third applicant:
57.1. the third applicant was the only recommended candidate for the position of Senior State Accountant in the component Financial Accounting in the Voorberg Management Area;
57.2. the third applicant was denied appointment to the position of Senior State Accountant in the component Financial Accounting in the Voorberg Management Area -
57.2.1. owing to the fact that he is what is termed ‘Coloured' in the EEA, and the actions taken by his employer therefore amount to unfair discrimination based on racial considerations; and/or
57.2.2. owing to the fact that he is male, and the actions taken by his employer therefore amount to unfair discrimination based on gender;
58. The fourth applicant:
58.1. the fourth applicant was the recommended candidate for the position of Senior Administrative Officer; Human Resources Development in the management areas of Allandale, Voorberg, Breede River and/or Pollsmoor;
58.2. the fourth applicant was denied appointment to the position of Senior Administrative Officer in any of the foregoing management areas -
58.2.1. owing to the fact that he is what is termed ‘Coloured' in the EEA, and the actions taken by his employer therefore amount to unfair discrimination based on racial considerations; and/or
58.2.2. owing the to the fact that he is male, and the actions taken by his employer therefore amount to unfair discrimination based on gender;
59. The fifth applicant:
59.1. the fifth applicant was the recommended candidate for the position of Senior Manager Services Head of Centre, Area Coordinator, Pollsmoor;
59.2. the fifth applicant was denied appointment to the position of Senior Manager Services Head of Centre, Area Coordinator, Pollsmoor owing to the fact that she is what is termed ‘Coloured' in the EEA, and the actions taken by her employer therefore amount to unfair discrimination based on racial considerations;
60. The sixth applicant:
60.1. the sixth applicant was the recommended candidate for the position of Assistant Director Manager Financial and Management Accounting, Malmesbury Area;
60.2. the sixth applicant was denied employment in the position of Assistant Director: Manager Financial and Management Accounting, Malmesbury Area owing to the fact that she is what is termed ‘Coloured' in the EEA, and the actions taken by her employer therefore amount to unfair discrimination based on racial considerations.
61. All individual applicants:
61.1. The third respondent's decision to refuse, whether pursuant to an application for deviation or otherwise, to promote the individual respondents to the aforesaid positions of posts is unreasonable, irrational unlawful within the contemplation of paras (e)(iii), (f)(ii) (h) and/or (i) of s 6 of the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA').
61.2. Accordingly the decision falls to be reviewed under PAJA.
Applicants generally
62. It is impermissible under the Constitution to discriminate on the grounds of race and gender. The EEA, in outlawing discrimination, echoes this principle. The enactments legitimate affirmative action measures in order to redress the inequities of the past, but they positively decline to sanction social engineering mechanically designed to produce racial and gender representation in the future. Witness to this fact is the provision in the26 EEA (s 15(3)) that states that an affirmative action plan may ‘may include preferential treatment and numerical goals, but [it must] exclude quotas'.
63. The naked pursuit of demographic representation based on these two factors can, in consequence, never be lawful. This is in line with s 195(1) of the Constitution and s 2(b) of the EEA, which clearly envisage representivity that is broad and equitable, that is based on reasonable accommodations being made, and that is not absolute.
Furthermore, s 42 of the EEA provides for the consideration of factors to determine compliance with employment equity concerns. All of these factors, including, but not limited to, the demographic profile of the economically active population and the pool of suitably qualified people from the designated groups, must be taken into account.
No basis is laid in the EEA for the employment of a national demographic profile to determine an appropriate composition of the workforce.
64. The DCS EE Plan engages upon social engineering based on naked race and gender profiling, differentiates between members of the designated groups purely on the basis of their race, and sets targets that, properly analysed, constitute nothing but a compendium of absolute quotas. So much is clear from the fact that the DCS EE Plan states as its objective representation of races based on the national demographic and that fact that it employs a system of allocation of positions on the basis of racial profiling.
64.1. An applicant, however appropriate and extensive his qualifications and experience, will be rejected unless he or she falls within the group - male or 27 female on the one hand and white, coloured, Indian and African on the other - that is underrepresented in the DCS taken nationally.
64.2. In its most egregious form, the implementation of the DCS EE Plan leads to the outright refusal to appoint or promote suitable staff to vacant positions on the grounds that the pursuit of strict demographic representation will potentially be frustrated.
64.3. The DCS is not entitled, under the enabling legislation, to engage upon social engineering, and neither is it entitled to approach categories of disadvantaged persons in an absolute fashion when a nuanced and ad hominem approach is called for.
65. The DCS EE Plan, by pursuing the principle of unqualified numerical race and gender based representivity as determinative of the composition and deployment of DCS personnel, is in fundamental conflict with the following enactments:
65.1. s 1 of the Constitution and the Bill of Rights in Chapter 3 of the self-same enactment, which do not, under the rubric of either equality (whether formal or substantive) or affirmative action (which seeks to legitimate measures designed to redress past discrimination), sanction the social engineering based on naked race and gender based profiling contemplated by the DCS EE Plan;
65.2. s 195(1) of the Constitution, which provides the constitutional basis for the evaluation of employment and affirmative action practices in the public service 28 on the basis of inter alia broad representation, democratic values and principles and efficiency; and/or
65.3. the EEA, which mandates race and gender as legitimate factors (among others) to be taken into account in making appointments and promotions, but -
65.3.1. sets its face against the profiling referred to;
65.3.2. makes absolutely no provision for dividing the set of persons described as ‘designated groups' (comprising black people, women and those who are disabled) into the subsets of coloured, Indian and African; and
65.3.3. does not provide for representation on the basis of the national demographic;
65.3.4. prohibits the use of quotas; and
65.3.5. denies employers the entitlement to place absolute barriers to employment and/or advancement of employees.
66. When examined for coherence upon its own terms (ie that absolute targets based on demographics are legitimate), the DCS EE Plan is hopelessly crude and arbitrary. No account is taken of regional differences in racial demographics so that, for example, the representation of coloured people is made to depend on national demographics despite the preponderance of such persons in the Western Cape. In the same vein, no account is taken of the incidence of economically active people in the country.
67. In the circumstances, the manner of implementation of the affirmative action measures in question conforms neither to the letter and the spirit of the EEA nor to s 195(1)(i) of the Constitution. It places absolute barriers for appointment to all non-designated employees; it effectively establishes a quota system; the targets which it has set for itself do not comply with the statutory and constitutional obligation of achieving a workforce broadly representative; and/or the relevant respondents clearly fail to consider any of the factors which needs to be taken into consideration in terms of section 42 of the EEA.
68. Finally, affirmative action and the need for employment equity must be balanced with the need and constitutional obligation to enhance and provide effective service delivery.
This constitutional obligation is breached by the respondents in their determined pursuit of irrational affirmative action measures.
LEGAL QUESTIONS ARISING FROM THE FACTS
69. Whether the DCS EE Plan, constituting as it does social engineering based on naked race and gender profiling -
69.1. is in conflict with:
69.1.1. s 1 and/or s 9 and/or s 195(1) of the Constitution and/or
69.1.2. the EEA
69.2. improperly divides sets of persons described as ‘designated groups';
69.3. improperly provides for representation on the basis of the national demographic;
69.4. places absolute barriers to employment and/or the advancement of employees;
69.5. is arbitrary, in particular insofar as it fails to take account of regional differences in racial demographics;
70. whether the implementation by the DCS of affirmative action measures conforms to the requirements of the EEA;
71. whether affirmative action and the need for employment equity need be balanced with the need and constitutional obligation to enhance and provide effective service delivery;
72. whether the DCS EE Plan ought to be struck down for want of compliance with the provisions of the EEA and/or the Constitution;
73. whether the second to sixth applicants were directly discriminated against on the basis of their race or gender and, if so, whether such discrimination was unfair;
74. whether the relevant respondents acted arbitrarily, capriciously and/or according to a wrong principle by refusing to consider the applicants' appointment solely because it would not ‘enhance' employment equity targets;
75. whether the decision not to appoint the second to sixth applicants in the positions applied for was taken in terms of an equity plan or policy and, if so, whether that plan or policy was complied with;
76. whether, in not appointing the second to sixth applicants, the first and/or second and/or third respondent (‘the relevant respondents') breached the constitutional values and principles by which they need to governed;
77. whether, in declining to sanction the deviations or otherwise promote the applicants to the positions or posts referred to above, the third respondent breached the EEA and the Constitution and, if so, whether the decision is reviewable under PAJA; and 78. whether the applicants are entitled to relief.
ATTEMPTS AT CONCILIATION
Second applicant
79. When no further information concerning his grievance was forthcoming from his employer, and in light of the information gleaned from the internal memorandum, the second applicant referred the matter to the CCMA for conciliation.
80. On 5 March 2012, the Commission for Conciliation, Mediation and Arbitration (‘CCMA') issued a certificate of non-resolution and the matter was referred to this court for adjudication.
Third applicant
81. Adverse comments by the National Commissioner contained in the internal memorandum concerned with a deviation request, described more fully above, as well as the fact that no response to the third applicant's grievance had been received, led him to approach the CCMA.
82. On 23 February 2012, the CCMA issued a certificate of non-conciliation and the matter was referred to this honourable court.
Fourth applicant
83. When it became clear to the fourth applicant that no resolution of his dispute with DCS would be obtained through internal measures, he referred his matter to the CCMA.
84. On 23 February 2012, the CCMA issued a certificate of non-conciliation and referred the matter to this honourable court.
Fifth applicant
85. After the fifth applicant learnt that the position she had applied for and had been recommended for was re-advertised during October 2011, she filed a dispute at the CCMA.
86. On 23 February 2012, the CMMA issued a certificate of non-conciliation and referred the matter to this honourable court for determination.
Sixth applicant
87. When no response to her requests for further information were received, the sixth applicant filed a dispute with the CCMA.
88. On 23 February 2012, the CMMA issued a certificate of non-conciliation and referred the matter to this honourable court for determination.
RELIEF SOUGHT
In light of the foregoing, the first to sixth applicants seek an order -
1. Declaring that the DC EE Plan 2010 to 2014 (‘the Plan') -
1.1. by requiring decisions on the appointment, transfer or promotion of personnel within the Department of Correctional Services (‘personnel placement decisions') to be made by reference to quotas strictly reflecting the demographic representativeness of the races and sexes,
1.1.1. fails to satisfy the requirements of an employment equity plan within the contemplation of of the Employment Equity Act 55 of 1998 (‘the EEA'), in particular s 20;
and/or
1.1.2. constitutes a contravention of the prohibitions on race, gender and/or sex discrimination within the contemplation of s 6 of the EEA;
alternatively
1.2. by requiring personnel placement decisions to be made by reference to quotas strictly reflecting the national demographic representativeness of the races, is unreasonable and/or irrational, and so unlawful, within the contemplation of paras (e)(iii), (f)(ii) (h) and/or (i) of s 6 of the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA');
2. Reviewing and setting aside, as unlawful, the decision of the first and second respondents to adopt, apply and implement the Plan in the course of making employment placement decisions.
3. Declaring the respondents' refusal, whether pursuant to an application for deviation or otherwise, to promote the individual respondents to certain positions of posts (‘the positions or posts'), to wit -
3.1. the second applicant to the position of Assistant Director: Human Resources Administration, Allandale Management Area: Western Cape Region;
3.2. the third applicant to the position of Senior State Accountant in the component Financial Accounting in the Voorberh Management Area;
3.3. the fourth applicant to the position of Senior Administrative Officer Human Resources Development in the management area of Allandale or Voorberg or Breede River or Pollsmoor;
3.4. the fifth applicant to the position of Senior Managers Services Head of Centre Area Coordinator Pollsmoor;
3.5. the sixth applicant to the position of Assistant Director: Manager Financial and Management Accounting Malmesbury Area to be unreasonable or irrational and so unlawful within the contemplation of paras (e)(iii), (f)(ii) (h) and/or (i) of s 6 of the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA').
4. Declaring the third respondent's refusal, whether pursuant to an application for deviation or otherwise, to promote the individual respondents to certain positions of posts to constitute unfair discrimination on the basis of race and/or gender, as the case may be;
5. Reviewing and setting aside, as unlawful, the decision of the respondents to refuse to promote the individual applicants to the positions or posts.
6. Requiring the respondents, with effect retrospective to a date one month after the individual applicants were each recommended for promotion -
6.1. to make the promotions in question;
alternatively
6.2. if and to the extent that the positions or posts are or become filled by some other appointee -
6.2.1. to treat the individual applicants (so far as title, remuneration and benefits are concerned) in every respect as though they had been so promoted;
and
6.2.2. to place them in a position or post, when one falls vacant, equivalent to the one they would have occupied had their promotion been granted.
7. Directing the first and/or second and/or third respondent to compensate the second to sixth applicants with amounts that the court, in each instance, deems equitable.
8. Directing the first and/or second and/or third respondents to take steps to prevent the recurrence of unfair discrimination in the manner currently contemplated in the Plan.
9. For costs of suit.
10. For alternative relief.
SCHEDULE OF DOCUMENTS
Attached is a schedule of documents, which are material and relevant to the issue.
SIGNED AND DATED AT PRETORIA ON THIS 18TH DAY OF MAY 2012. SERFONTEIN VILJOEN & SWART ATTORNEYS
Attorneys for the applicants
165 Alexander street
Brooklyn
Pretoria
0028
P.O. Box 11512
Hatfield
0181 Ref: Mr Swart/Claassen/FB/CS0070 c/o Bargraims Attorneys
5 De Lorentz Street
Gardens
Cape town
8001
Ref: Mr Michael Bargraims
TO: REGISTRAR OF THE LABOUR COURT
Twindell House
113 Loop Street
Cape Town
8001 TO: DEPARTMENT OF CORRECTIONAL SERVICES
Poyntons Building
124 Church Street
c/o Shubart Street
Pretoria
0001 TO: STATE ATTORNEY
Attorneys For Respondent
Ground Floor Salu Building
225 Schoeman Street
c/o Andries & Schoeman Street
Private Bag X91
Pretoria, 0001
Source: www.solidaritymedia.co.za
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