South Africa: Fair's Fair? Applying Affirmative Action

Last Updated: 8 October 2013
Article by Liesl Brookshaw and Manisha Maganbhai-Mooloo

The ideals behind the enforcement of affirmative action in the workplace in South Africa, post-1994, are sound and understandable; however, there have been many challenges to overcome to ensure that the empowerment of the previously disadvantaged does not defeat the Constitutional right to equality.

In order to address these sensitivities our Courts have had to consider, develop and adapt the implementation of affirmative action on a continuous basis in order to promote the rights of all employees.  One such instance is in the recent reported case of Jennila Naidoo v The Minister of Safety & Security and The National Commissioner of the South African Police Service, Case No: JS 566/2011.

Before considering the legal principles expressed by Judge Shaik in the aforementioned matter, a brief synopsis of the facts must be considered:

The South African Police Service during April 2009, advertised vacancies, inter alia 5 positions for Cluster Commander in the Gauteng region.  Ms Naidoo (the "Applicant"), applied for the position of Cluster Commander: Krugersdorp.  The Applicant's application was considered by a selection committee and by virtue of her total mark she was placed second. However, and despite the provincial selection panel recommending the appointment of the Applicant, in that her appointment would inter alia address the issue of gender inequality, the national panel declined the Applicant's application on the basis that it would not enhance employment equity. An African male was appointed instead of the Applicant, despite his total mark scoring lower.  The Minister of Safety & Security and the National Commissioner of the South African Police Service (the "Respondents") defended its decision on the basis that the appointment was made in line with the numeric targets set out in its internal Equity Plan, implemented in accordance with the requirements set out in the Employment Equity Act, 55 of 1998.  This plan set out certain numeric targets, more specifically 79% Africans, 9.6% White, 8.9% Coloured and 2.5% Indians.  There was furthermore a gender target set out in the plan:  Male: 70%, Women 30%. 

As a result of these numeric targets, the Applicant alleged that she suffered unfair discrimination in that the Equity Plan constituted an absolute barrier to her appointment and that the manner in which the Equity Plan was implemented and how the targets were applied, were inconsistent and arbitrary and as such, unfair.  The Respondents alleged however that they were acting in accordance with the Equity Plan, that the Applicant would not comply with the prescribed "service delivery objectives" and further, that if there was discrimination, such discrimination was not unfair as it formed part of an affirmative action measure as envisaged in terms of section 6(2) of the Employment Equity Act.

In considering the Respondents' argument that the Applicant did not comply with the inherent requirements of the vacancy, Judge Shaik made reference to the Labour Relations Act No 66 of 1995, more specifically section 186(2) that requires employers to treat employees fairly when they apply for promotions. Judge Shaik further referred to section 6 of the Employment Equity Act No 55 of 1998, which prohibits unfair discrimination, inter alia, on the basis of race and/or gender.  Judge Shaik acknowledged that management has a prerogative when considering the promotional prospects of certain employees, however, the Court could interfere with "a decision made by a functionary if it is proved that the decision maker acted irrationally, capriciously or arbitrarily, and further that the decision was actuated by bias, malice or fraud, or failed to apply his or her mind or unfairly discriminated".  Judge Shaik emphasized that "the essence of affirmative action is to differentiate and to prefer a member of a designated group in order to promote and attach substantive equality.  Its purpose is to redress the effects of past discrimination and end discrimination and by these means promote equality."  In considering the above, Judge Shaik intimated that he was not inclined to accept the explanation offered by the Respondents that there were inter alia inherent requirements that precluded the appointment of the Applicant. Reference was made to the matter of Whitehead v Woolworths (Pty) Ltd (1999) 20 ILJ 2133 (LC), where it was held that an inherent requirement implies an "indispensible attribute" of the job, which must "relate in an inescapable way to the performing of the job required".  Shaik emphasised that "an inherent requirement is one that if not met, an applicant would simply not qualify for the post".

Judge Shaik then considered the element of service delivery, in response to the Respondents' argument that the Applicant did not meet the 'service delivery objectives', and whether the Applicant would have been able to ensure that the Krugersdorp Cluster under her command would meet the service delivery objectives. Shaik was however not convinced that the concern of the Applicant's ability to attain the required service delivery objectives was in fact the crux of this argument, more so in light of the Respondents' witness expressing that "it was not about [her] and her abilities or experience, but about the employment equity profile that was "dictating" the decisions to be made at the time".

Consideration was then given to the allegation by the Respondents that the discrimination was not unfair and was in line with the auspices of affirmative action.  Judge Shaik referred specifically to section 9 of the Constitution, read together with section 6 of the Employment Equity Act. He further referred to the well known authorities of Minister of Finance v F J van Heerden [2004] 12 BLLR 1181 (CC) and Harsen v Lane NO 1997 (11) BCLR 1489 (CC).

Shaik quoted Moseneke J, where he stated that "It seems to me that to determine whether a measure falls within section 9(2) the enquiry is threefold.  The first yardstick relates to whether a measure targets persons or categories or 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 equality." Shaik further commented that it was important to bear in mind that, whilst the Employment Equity Act prohibits unfair discrimination, it also promotes non-racialism and non-sexism, which he argued is the essence of the transformation agenda envisaged in the Constitution.  Shaik stated that "it is important in analysing an affirmative action measure to examine the measure from the perspective of the group to be advantaged. An analysis that is from the vantage of the group to be disadvantaged is to miss the point of affirmative action and give undue focus to the rights and interest of this group.  In the comparative to be made, the exceptions and tiny minorities are to be disregarded and the focus maintained on the majority."

When considering the Applicant's case in conjunction with the above, Shaik found that the Applicant had, in effect, and by virtue of the numerical targets applicable to the Indian race, coupled with the application of the gender division of 70/30, been treated as if she was not a member of the designated group, and that the Respondent had, by virtue of the denominational statistics, considered the Applicant last, as if her group had not been 'as disadvantaged' within the 'designated groups' as those of African and Coloured persons.  Shaik further stated that "the very purpose of employment equity is to redress the effects of past discrimination suffered by members of the designated group", and that "its purpose is not to create new de facto barriers to employment." He further concluded that "the fact that the barrier is created and results in a person from a designated group suffering discrimination, both on the grounds of [the Applicant's] race and gender, is perverse."   Shaik also indicated that a "situation-sensitive" approach must be adopted, and that "the disadvantage to be endured by the disadvantaged group is incidental to the purpose of promoting substantive equality."  Furthermore, "the disadvantage suffered is in pursuit of a higher purpose and to the extent that the higher purpose is realised, the disadvantaged group also benefits." Shaik concludes by stating "Thus advantage and disadvantage cannot be seen in a narrow context bound by the moment."  Shaik found that the barriers, patterns and limitations referred to in the evidence presented before him, held potential for considerable inter group contestation, conflict and protests amongst designated groups, which in essence undermines the pursuit of non-racialism and non-sexism.  Shaik intimated further that, whilst it may not have been the intended result of the Respondents to create barriers and patterns of disadvantage, in practice this effect was created. This effect under minded equal opportunity and the pursuit of substantive equality.

Shaik concluded in his judgment that "Whilst the impugned affirmative action measure is indeed designed to protect and advance members of the designated group, it has as its focus a much too narrow definition of the designated group and it is a feature of the flawed design that it is exclusionary rather than inclusive to a significant degree for the case of women; and in the case of Indians and Indian females it excludes them entirely and in doing so sets up an employment barrier."

Of course, every case needs to be considered according to its specific facts, and the above judgment cannot be considered to be applicable to all issues regarding promotional prospects when dealing with the implementation of affirmative action. However, Shaik has placed a reasonable burden on employers to carefully consider the impact their decisions to apply affirmative action may have on persons within the designated groups, but more so minority persons within the designated groups.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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