Presenter: Adv Colin Kahanovitz SC Title: CASE LAW UPDATE

1. SASLAW CAPE TOWN CHAPTER SEMINAR 3 SEPT 2013 Presenter: Adv Colin Kahanovitz SC Title:CASE LAW UPDATE

2. [52] In my view s 32(3)(c) was not complied with, which renders a determination of whether any further additional requirements or B considerations relating to potential job losses were to be implied unnecessary to decide. The requirements of s 32(3)(c) [53] In the Neasa decision Van Niekerk J held: C 'Accordingly, for the purposes of s 32(3)(b) and (c), before deciding to agree a valid request from a bargaining council to extend a collective agreement to non-parties, the minister must determine the scope of the agreement that is sought to be extended, and for the purposes of compliance with the majority threshold requirements, thereafter be satisfied of two things. The first is that the majority of those employees who fall within the scope of the agreement are members of trade unions that are parties to the council. The second is that the majority of employees who will fall within the scope of the agreement are employed by employers who are members of employers' organizations that are parties to the council.' ) Valuline CC & others v Minister of Labour & others

3. Valuline CC & others v Minister of Labour & others (b) In Walele v City of Cape Town & others 2008 (6) SA 129 (CC) at para 60 the Constitutional Court held: 'In the past, when reasonableness was taken as a self-standing ground for review, the City's ipse dixit could have been adequate. But that is no longer the position in our law. More is now required if the decision-maker's opinion is challenged on the basis that the subjective precondition did not exist. The decision-maker must now show that A the subjective opinion it relied on for exercising power was based on reasonable grounds. In this case it cannot be said that the information, which the City admitted had been placed before the decision-maker, constituted reasonable grounds for the latter to be satisfied.' [55] The requirement is not whether the requisite majority was in fact employed by members of party employers' organizations, but whether the minister was 'satisfied' objectively of this at the time of exercising her power.

4. [58] It must be accepted that the number of employees employed in a particular industry and which would fall within the scope of an extended collective agreement, is in a constant state of fluctuation due to continuous hiring and termination of employment for whatever reason. The level of representation at a particular point in time is therefore always at best assessed on the basis of objective evidence or information placed before the first respondent at the time that the request to extend the collective agreement is made, and in relation to which she then concludes that she is so 'satisfied'. [59] It is not the respondents' case that the first respondent actually attempted to gauge the representativity of employers, or was presented with any kind of data which demonstrated objectively that the representativity requirement in s 32(3)(c) was met. Rather it is contended that in satisfying herself that the requirements of s 32(3)(c) were met, the first respondent relied upon a certificate of representativeness issued by the Registrar of Labour Relations in terms of s 49(4) of the LRA, which she accepted as being decisive. Valuline CC & others v Minister of Labour & others

5. [60] Section 49 of the LRA, which forms part of 'Part F — General provisions concerning councils' provides: 'Representativeness of council (1) When considering the representativeness of the parties to a council, or parties seeking registration of a council, the registrar, having regard to the nature of the sector and the situation of the area in respect of which I registration is sought, may regard the parties to a council as representative in respect of the whole area even if a trade union or employers' organisation that is a party to the council has no members in part of that area. (2) A bargaining council having a collective agreement that has been extended by the Minister in terms of section 32, must inform the registrar annually, in writing, on a date to be determined by the registrar as to the number of employees who are — (a) covered by the collective agreement; (b) members of the trade unions that are parties to the agreement; (c) employed by members of the employers' organisations that are party to the agreement. Valuline CC & others v Minister of Labour & others

6. (3) A bargaining council must on request by the registrar inform the registrar in writing within the period specified in the request as to the number of employees who are (a) employed within the registered scope of the council; (b) members of the trade unions that are parties to the council; (c) employed by members of the employers' organisations that are party to the council. (4) A determination of the representativeness of a bargaining council in C terms of this section is sufficient proof of the representativeness of the council for the year following the determination. (5) This section does not apply to the public service.' Valuline CC & others v Minister of Labour & others

7. [61] The s 49 certificate certified amongst other things that 51% of the employees falling within the second respondent's registered scope, that is within the clothing industry as defined in its registration certificate, were employed by members of the employers' organizations which are parties to the council. 50 The submission is that this certificate was valid at the time when the extension was made on 24 December 2010, and in the absence of a review and setting aside of the certificate, it remained valid and of full legal force and effect. [62] Section 32(3)(b) and (c) are evidently designed to ensure a form of majoritarism by requiring that a majority of the persons bound by a collective agreement after its extension, were through representatives on the bargaining council, party to the conclusion of that agreement and bound thereby. In terms of s 32(3)(c) employers must employ more than 50% of the employees who fall in the scope of the agreement after it has been extended. Valuline CC & others v Minister of Labour & others

8. [63] The schedule attached to the bargaining council's application to the first respondent for extension of the collective agreement recorded that employers' organizations that were party to the collective agreement employed 48.58% of the total number of employees covered by the collective agreement. Paragraph 5 records that the total number of employees employed within the scope of the collective agreement by employers who belonged to the employers' organizations who are party to the collective agreement is '27,371' and that the total number of employees employed within the scope of the collective agreement is '56,341'. [64] Section 32 refers to 'the majority of all the employees who fall within the scope of the collective agreement', as contrasted to the provisions of s 49(4) which refers to the representativeness of a 'bargaining council' and 'employees registered within the scope of the council'. Valuline CC & others v Minister of Labour & others

9. [65] The representativeness of the second respondent is clearly something very different to representativeness arising from a collective agreement. The respondents however submit that there is no significant difference between the number of employees falling within the registered scope of the council and the number of employees falling within the scope of the collective agreement because 'the council's scope of registration is substantively identical to the definition contained in the collective agreement'. Valuline CC & others v Minister of Labour & others

10. [67] Reliance on the s 49 certificate was misplaced and did not amount to a proper application of the first respondent's mind to the requirements in s 32(3)(c) for at least one or more or all of the following reasons: (a) Section 32(3)(c) refers to an actual factual position, not a deemed one. The first respondent had to be satisfied that the majority of G all employees falling within the scope of the collective agreement once extended were in the employ of members of the employer parties to the bargaining council. Valuline CC & others v Minister of Labour & others

11. (b) Section 32 does not provide that any determination as to the representativeness of a bargaining council in terms of s 49 is sufficient for the purposes of the enquiry to be undertaken in terms of s 32(3)(c). Indeed, the provisions of s 49(2) requiring particulars to be furnished annually by the registrar in writing as to the number of employees covered by a collective agreement and the like, indicate that reliance on the certificate was not I proper. There will be no need for these particulars to be furnished if reliance would simply be placed on the certificate of representativeness of the council. (c) Section 32 does not indicate, whether expressly or by implication, that all the first respondent needed to do to satisfy herself the requirements of s 32(3)(c) had been met, was to consider a determination made under s 49. Valuline CC & others v Minister of Labour & others

12. (d) If the first respondent could satisfy herself as to the level of representativeness required by s 32(3)(c) by considering a certificate of representativeness in terms of s 49, it would constitute an impermissible fettering of her discretion in relation to the very enquiry she is required to undertake and to be satisfied on. (e) Section 49, relating to the 'representativeness of council' is to determine the representativeness of a bargaining council and is made in respect of criteria very different to those under s 32(3)(b) and (c). (f) The certificate referred to the number of employees 'within the registered scope of the council', information required by s 49(3)(a), and does not indicate the number of employees 'covered by the collective agreement', the information required by s 49(2)(a) and pertinent to the enquiry in terms of s 32(3)(c). Valuline CC & others v Minister of Labour & others

13. [68] As in the Neasa judgment the unavoidable conclusion is that the factual assumption on which the first respondent based her decision to extend the collective agreement, namely the adequacy of the certificate of representativity in terms of s 49, was incorrect. As it was put in that judgment: 'Put another way, there were no reasonable grounds for the minister to be satisfied that the conditions set out in paras (b) and (c) of s 32(3) had been met. The minister's decision to extend the collective agreement to non-parties put forward in the registered scope of the agreement is invalid and accordingly stands to be reviewed and set aside.' Valuline CC & others v Minister of Labour & others

14. [14] According to the commissioner, supported by the expert witness called on the appellants' behalf, Mr Ndebele, the uniformity of dress and appearance provided by the dress code is intertwined with and critical for the enforcement and maintenance of discipline and security in a prison environment. Any deviations from uniformity to accommodate diversity would open the floodgates for exemption requests to the department's detriment. Dreadlocks also posed a particular risk because they could easily be grabbed by an inmate to disarm an official. Department of Correctional Services & another v Police & Prisons Civil Rights Union & others (2013) 34 ILJ 1375 (SCA)

15. [15] The Labour Court accepted that the respondents were dismissed because they wore dreadlocks and disobeyed the commissioner's instruction to cut them; that they wore the dreadlocks in pursuance of sincerely held religious or cultural beliefs and that their female counterparts were not prohibited from wearing dreadlocks. In the court's view, it was 'beyond doubt that the impact of the instruction would have a devastating impact on their beliefs' and faith. However, the court found that they failed to draw their beliefs to the commissioner's attention and to assert their right to their faith. Thus, they failed to establish a 'causal link . . . between the prohibited reasons for dismissal and the circumstances of the dismissal' and 'factual causation, that is a belief in religious and cultural practices had not been proved to have been the sine qua non or prerequisite reason for the dismissal'. Department of Correctional Services & another v Police & Prisons Civil Rights Union & others

16. [16] The court therefore found no direct or indirect discrimination I against the respondents on the grounds of religion, belief or culture. Instead, it held that the respondents had established discrimination against themselves on the basis of gender as the appellants did not show 'why the biological differences between men and women had to justify discriminating between them . . . when it came to dreadlocks'. The court concluded that the appellants had failed to rebut the presumption of unfairness of the commissioner's instruction and that the dismissals were automatically unfair. It ordered reinstatement of those respondents who sought it and compensation for those who no longer wanted their jobs. Department of Correctional Services & another v Police & Prisons Civil Rights Union & others

17. [17] The appellants did not accept the judgment and took the matter to the LAC. Without first applying for leave, the respondents also noted a cross-appeal against the Labour Court's failure to find unfair discrimination also on the grounds of religion, belief or culture. As indicated, the LAC dismissed the appeal and held the dismissals automatically unfair on the bases of religion, culture and gender. …. [18] On further appeal to this court, the appellants raised a number of grounds which were duly motivated in their heads of argument. However, the issues trimmed down significantly in argument before us. The appellants' counsel conceded most of the issues previously raised by his predecessor. These included a concession that the dress code operated disparately among correctional officers and was directly discriminatory on all three proscribed grounds, namely religion, culture and gender. The concession was well made. Indeed, but for their religious and cultural beliefs, the respondents would not have worn dreadlocks. And but for that fact and their male gender, they would not have been dismissed. The disparate treatment constituted discrimination and the appellants' motives and objectives of the dress code are entirely irrelevant for this finding. Department of Correctional Services & another v Police & Prisons Civil Rights Union & others

18. [19] In the event, the appellants' case distilled to simply that the discrimination was justifiable because it sought to eliminate the risk and anomaly posed by placing officers who subscribe to a religion or culture that promotes criminality — in the form of the use of dagga — in control of a high regulation, quasi-military institution such as a prison. It was contended that the department's real problem lay not with the hairstyle worn by Rastafari and 'intwasa' initiates as such but their faiths which require the use of dagga, an illegal and harmful drug, as an integral ritual in their observance. [20] The appellants' counsel pointed out that South Africa expends a huge effort in the discharge of its international obligation to combat the drug [trade] to which the use of dagga is central. The risk posed by dreadlocks, it was argued, is that they render Rastafari officials conspicuous and susceptible to manipulation by Rastafari and other inmates to smuggle dagga into correctional centres. This would negatively affect discipline and the rehabilitation of inmates. It was also submitted that the department was not particularly concernedwith female officials who wore dreadlocks. This was so because the risk in females was significantly reduced as it is not unusual for them to wear long hair. Department of Correctional Services & another v Police & Prisons Civil Rights Union & others

19. Further, it is notorious and was accepted as true by the Constitutional Court in Prince v President, Cape Law Society, that women and children are not involved in the use of dagga in Rastafarianism. The dress code therefore served an important and legitimate government purpose because Rastafari officials would not be easily identifiable if they did not wear dreadlocks. [21] Once discrimination has been established on a listed ground, unfairness is presumed, and the employer must prove the contrary. Relevant considerations in this regard include the position of the victim of the discrimination in society, the purpose sought to be achieved by the discrimination, the extent to which rights or interests of the victim of the discrimination have been affected, whether the discrimination has impaired the human dignity of the victim, and whether less restrictive means are available to achieve the purpose of the discrimination. Department of Correctional Services & another v Police & Prisons Civil Rights Union & others

20. [22] Without question, a policy that effectively punishes the practice of a religion and culture degrades and devalues the followers of that religion and culture in society; it is a palpable invasion of their dignity which says their religion or culture is not worthy of protection and the impact of the limitation is profound. That impact here was devastating because the respondents' refusal to yield to an instruction at odds with their sincerely held beliefs cost them their employment. [23] Whether the discriminatory impact of the dress code was justifiable stands to be decided under the provisions of s 187(2)(a) of the LRA as the constitutionality of the policy was not challenged. According to the section 'a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job'. An inherent requirement of a job has been interpreted to mean 'a permanent attribute or quality forming an . . . essential element . . . and an indispensable attribute which must relate in an inescapable way to the performing of a job'. Department of Correctional Services & another v Police & Prisons Civil Rights Union & others

21. [24] The appellants face an insurmountable hurdle. The case they advanced in evidence was that the rationale for the dress code was to entrench uniformity and neatness in the dress and appearance of correctional officials which would engender discipline and enhance security in the prison facility. The about-turn during argument this appeal did their cause no good. The dress code was not shown to be concerned with the use of dagga, the prevention of which it is now touted to have targeted. The appellants laid no foundation for their belated argument, as their counsel properly acknowledged. Department of Correctional Services & another v Police & Prisons Civil Rights Union & others

22. [25] Even assuming otherwise, no evidence was adduced to prove that the respondents' hair, worn over many years before they were ordered to shave it, detracted in any way from the performance of their duties or rendered them vulnerable to manipulation and corruption. Therefore, it was not established that short hair, not worn in dreadlocks, was an inherent requirement of their jobs. A policy is not justified if it restricts a practice of religious belief — and by necessary extension, a cultural belief — that does not affect an employee's ability to perform his duties, nor jeopardize the safety of the public or other employees, nor cause undue hardship to the employer in a practical sense. No rational connection was established between the purported purpose of the discrimination and the measure taken. Neither was it shown that the department would suffer an unreasonable burden if it had exempted the respondents. The appeal must, therefore, fail. Department of Correctional Services & another v Police & Prisons Civil Rights Union & others

23. [45] It is important to note at the outset that the claim of the respondents is based not on delict, but on a breach of contract. What they allege is that there was a contract between the parties which imposed an obligation on FAWU that it failed to perform in the manner contemplated by that contract. The first duty of the court is therefore to determine the nature of the obligation imposed upon FAWU by H the contract. It may well be that in terms of its constitution FAWU may not have been obliged to assist the respondents. But that can hardly avail it now. For, the simple truth is that FAWU had in fact undertaken to represent the respondents in their dispute with Nestlé. Not just that, it thereafter did in fact do so before the Commission for Conciliation, Mediation & Arbitration (the CCMA). Thus whether the respondents did indeed qualify for such assistance in terms of FAWU's constitution is, on the view that we take of the matter, a red herring. That the contract in question is one of mandate appears to admit of no dispute. Food & Allied Workers Union v Ngcobo & another (2013) 34 ILJ 1383 (SCA)

24. Contd….. Once it accepted that mandate FAWU was obliged to perform its functions faithfully, honestly and with care and diligence (David Trust & others v Aegis Insurance Co Ltd & others 2000 (3) SA 289 (SCA) para 20). It mattered not that it was not to receive any remuneration for the discharge of that obligation. For, as Hoexter JA made plain in Bloom's Woollens (Pty) Ltd v Taylor 1962 (2) SA 532 (A) at 539G-H: 'I wish to emphasise that in our law a A person who has undertaken an obligation is bound duly to perform it, whether or not he is to receive remuneration.' [46] At the outset we should perhaps dispose of a contention sought to be advanced on behalf of FAWU that being a trade union and not an attorney a less exacting standard should be expected of it. There is a short answer to that contention. It is to be found in the following dictum of Graham JP in Mead v Clarke 1922 EDL 49 at 51: Food & Allied Workers Union v Ngcobo & another

25. 'Voet (XVII.1.9.) points out that where a man has expressly or tacitly professed to have business capability he ought not to have undertaken an affair for C which he was not qualified and in which he knew or ought to have known that his own lack of skill would be damaging to the interests of his principal. And Story, in his work on Bailments, sec. 175, states the same principle: "Nor will want of ability to perform the contract be any defence to the contracting party, for though the law exacts no impossible things, yet it may justly require D that every man should know his own strength before he undertakes to do an act. And if he deludes another by false pretensions to skill he shall be responsible for any injury that may be occasioned by such delusion."' [47] In our view the mandate given to FAWU was a relatively simple one — E it was to take such steps as were necessary to have the respondents' labour dispute with their employer determined in accordance with the provisions of the LRA. That it could easily have done. Food & Allied Workers Union v Ngcobo & another

26. Contd…. FAWU committed breaches of its mandate. It did so in the first place by failing to timeously refer the respondents' dispute with Nestlé to the Labour Court (LC) and in the second place by failing to secure condonation for that failure. In both instances it failed to act honestly or diligently. When the dispute remained unresolved and a certificate to that effect was issued by the CCMA on 18 June 2002, the respondents acquired an unconditional right to approach the LC to have that dispute resolved. FAWU well knew that the respondents' dispute had to G be referred to the LC within 90 days of the issuance by the CCMA of its certificate. That much emerges from its own correspondence to the respondents and Nestlé. Food & Allied Workers Union v Ngcobo & another

27. Contd.... FAWU, moreover, failed to inform the respondents that the matter had not been referred within the requisite 90 days or to keep them apprised of the progress of their case (because, one suspects, there was none). It took a visit by the respondents to the University of Durban-Westville Law Clinic for them to learn that no papers had been filed with the LC. That was approximately one year after the CCMA certificate of non-resolution had issued. The consequence of FAWU's failure to diligently discharge its mandate by failing to timeously refer the respondents' dispute with Nestlé to the LC was that it altered the nature of the respondents' right to one that could now only be exercised with the leave of the LC upon good cause being shown. A successful application for condonation thus became a necessary preliminary to a referral of the dispute to the LC. Food & Allied Workers Union v Ngcobo & another

28. “[33] The essence of Section 20 is that a designated employer must develop and adopt an Employment Equity Plan that focuses on its workplace. Importantly the section gives a designated employer the power to use its Employment Equity Plan to adopt recruitment measures that seek to bring equity in the ranks of its employees and to redress the under representivity of certain categories of employees in its workplace. The appellant is such a designated employer and it had, before the onset of this matter, adopted an Employment Equity Plan which it applied when filling vacancies thereafter. The advertised post at the centre of this dispute is one such vacancy. The appellant’s Employment Equity Plan was, before its adoption, the subject of consultations in the appellant’s workplace. It is correct that Solidarity did not participate in the consultations and preparation of the appellant’s Employment Equity Plan as it was not sufficiently representative in the appellants’ workplace but POPCRU, the amicus in this appeal, was involved. South African Police Services v Solidarity obo Barnard (2013) 34 ILJ 590 (LAC)

29. [34] An Employment Equity Plan is equally a measure, like the Employment Equity Act, as contemplated in section 9(2) of the Constitution. It is therefore a constitutionally mandated tool in a designated employer’s hands to ensure compliance with the injunction to ensure and achieve equitable employment practices and representivity. [37] It is important to also note that in the Employment Equity Plan, the numerical goals for level 9 of the National Evaluation Services Section, where the advertised post was located, was that by the end of 2006, there should be 10 African males and six African females at that level and one white male and one white female. Furthermore, the plan made provision that in order to achieve these numerical goals, eight and six level 9 posts were to be made available for the appointment and/or promotion of African males and black candidates respectively. Notably no posts were made available for the promotion/appointment of white candidates. Rigid or not, these numerical targets represent a rational programme aimed at achieving the required demographic representivity status quo required by the Employment Equity Plan. South African Police Services v Solidarity obo Barnard

30. [38] The over representivity of white males and females is itself a powerful demonstration of the insidious consequences of our unhappy past. White people were advantaged over other races especially in the public service. This advantage was perpetuated by the transfer of skills, some critical, to the same white race to the exclusion of others, especially blacks. The over representivity of whites in level 9 is a stark reminder of our past and indeed the present and yet another wake up call to decisively break from these practices. These are practices that can be effectively broken by embracing the restitutionary spirit of the Constitution. [39] It must also be pointed out that the role of Employment Equity Plans is also to ensure that decisions as to who is to be appointed in the context of affirmative action are not arbitrary or haphazard and do not occasion unfairness. The Supreme Court of Appeal, in Gordon v Department of Health: KZN stated that any appointment made on the basis of affirmative action had to be in terms of a plan to avoid such arbitrariness. The application of such plans therefore cannot be relegated as suggested by the Labour court. . . . South African Police Services v Solidarity obo Barnard

31. South African Police Services v Solidarity [41] It remains to consider the Labour Court’s conclusions that the failure to appoint Barnard was irrational and compromised service delivery, based on its view that by failing to appoint either of the two black candidates, the National Commissioner had failed to implement the Employment Equity Plan. In this regard, the Labour Court agreed with the interview and divisional panels’ statement that Barnard's promotion to level 9 would enhance representivity efforts in level 8. Of course, it is strange that the National Commissioner did not appoint either of the two black candidates who were by all accounts appointable. In my view this failure owes much to the National commissioner simply focussing his mind on the recommendation to appoint Barnard. Clearly he was at liberty to appoint either of the black candidates, both of whom had passed the assessment with high ratings. This however cannot, on any conceivable basis, be regarded as a failure to implement the Employment Equity Plan.

32. South African Police Services v Solidarity obo Barnard [42] …..On the other hand, failing to appoint either of the black candidates does not translate into a justification of Barnard’s claim, as a white female to be so appointed. As I point out above, appointing her would fly in the face of the employment equity orientated measures applicable in the appellant’s environment and would have aggravated the overrepresentation of whites in level 9. In fact, the black candidates had an unquestionable claim to be appointed over Barnard in keeping with the Employment Equity Plan and she has readily conceded this point. Discriminating against Barnard in the circumstances of this case was clearly justifiable. . . .

33. South African Police Services v Solidarity obo Barnard [44] I should also point out that the statement advanced by the Labour Court that there must be a rational connection between the equity plan and its objectives was not raised as an issue requiring determination. That issue arises if there is a legal challenge to the plan which was not before this Court. A reading, however, of the appellant’s Employment Equity Plan demonstrates that the plan was crafted with due consideration of rationality and reasonableness. It is a plan that was drafted with due regard to the appellant’s workplace dynamics and identifies the gaps requiring attention as well as providing for a programme of action that is time bound regarding the closing of the gaps identified. The issue rather is whether there is a rational connection between the transformational goal of promoting the achievement of equality by ensuring equitable representation of designated groups in all occupational categories and levels in the appellant’s workforce on the one hand and the means used to achieve that goal on the other hand. . . .

34. South African Police Services v Solidarity obo Barnard [46] The Labour Court’s conclusion that the failure to appoint Barnard compromised service delivery is also misconstrued. The National Commissioner is the accounting officer of the appellant and is the only person who is answerable regarding service delivery matters. It is not open to a court to ‘second guess’ a decision that not filling a post will or will not compromise service delivery. In this case the National Commissioner, as the responsible accounting officer, decided not to fill the advertised post which he subsequently withdrew. In any event, I am of the view that the National Commissioner was the only person well-placed to determine if service delivery would be compromised by the failure to fill the post and his decision that this would not be so is unassailable.

35. South African Police Services v Solidarity obo Barnard Cont..... Frankly speaking that is his prerogative and should he be incorrect in so deciding and imperil service delivery as a result, he is answerable to his accounting authority, being the Minister and ultimately to Parliament. The National Commissioner is similarly answerable in that manner should he fail to achieve the targets set out in the Employment Equity Plan. Our role as courts is to determine if any conduct, alleged to be based on an Employment Equity Plan, for instance, is justifiable in terms of that plan such as we have here. It is not open to a court to dictate to the National Commissioner that he is compromising service delivery and should fill a post.

36. South African Police Services v Solidarity obo Barnard Conclusion [47] The Labour Court clearly misconstrued the purpose of the employment equity orientated measures by decreeing that their implementation was subject to an individual's right to equality and dignity. This misconception is highlighted in this case, where the individual concerned is a white woman, whose group was overrepresented in level 9, and who was clearly advantaged by past unfair discriminatory laws. Importantly she did not hope to be appointed as there were two appointable black candidates from designated groups. She was also aware that black candidates were targeted for the post for which she applied and which target was within the conscripts of National Instruction 1 of 2004.”

37. Munsamy V Minister of Safety and Security and Another (D253/03) [2013] ZALCD 5 (3 April 2013) [28] According to section 17, and, implicit in sections 17, 20 and 42 of the Act and guidelines 8.4.2 of the Code, the issues for consultation must include the workforce profile analysis, including the relevant information an demographics and the extent of under-representation of employees from the designated groups in the different occupational categories and levels. It must also address what sort of affirmative action measures are to be applied, including demographic guidelines and goals and whether, in these respects, national and/or regional demographics will be used, time periods and what constitutes reasonable progress over the duration of the plan.

38. Munsamy V Minister of Safety and Security and Another [29] Based on the above provisions, where an employer used affirmative action measures to prefer one designated group over another who were supposedly over-represented, the employer must prove the following to establish that its conduct was in line with a defensible employment equity plan: (i) that there was an over-representation of the discriminated against group and an under-representation of the preferred group in the level of the post in question: this requires the conduct of a proper workplace profile audit; (ii) that the measure is sufficiently coherent and not open to arbitrary application or abuse; (iii) that the measure is permitted by the Act; (iv) an equity plan that permits the disputed measure, either expressly or by clear implication; (v) that the measure is intended to correct inequitable representation in the workplace; and, (vi) that the measure arose out of proper consultations, i.e. there had been proper consultation on the particular measure.

39. Munsamy V Minister of Safety and Security and Another [30] Whether a court may be called upon to adjudicate the fairness, in the wide sense of the word, of ‘measures’, especially where they have been the subject of proper consultation and agreement between management and labour in the consultative forum and where the aggrieved parties have the right to advance their interests through political and industrial action, is debatable but as will be seen is not an issue that needs to be determined in this case. It is not necessary for the resolution of this dispute.”

40. Munsamy V Minister of Safety and Security and Another • 42. The court then pointed out the steps taken by the employer that in the court’s view had not been in line with a rational coherent employment equity plan: • a. Indian males, although members of the designated group, were given the same scores as white males; • b. the provincial panel had not been furnished with any demographic statistics by the National office at the time that it decided on the points system; • c. none of the employer’s witnesses were able to point to any equity plan which permitted such a points system, nor could they provide any explanation as to how the points system was established or what informed the actual allocation of specific points to the individual race groups. The system was thus arbitrary and lacked any rational basis;[1] [1] paragraph 32 [2] para's 36-38.

41. Munsamy V Minister of Safety and Security and Another • d. the employer applied fixed quotas for the promotion posts; • e. Prior to the promotions 95, Indian males occupied positions at salary levels 9 to 11, while 11 Indian females were employed at this level. In terms of the employer’s proposal embodied in the numerical goals document, the Indian male incumbency was theoretically to be reduced to a total of 17 and the female incumbency to 7. If this approach was to be applied strictly it would have required that no single Indian person could be promoted and that any Indian person seeking promotion would have to undertake provincial migration.[2]