Public Servants’ Association of South Africa and Another v Minister of Justice and Others
1997 (5) BCLR577 (T)
Date: / 04 / 03 / 97
Before: / JDM Swart, Judge
Flynote
Equality
affirmative action – section 8(3)(a) of the Interim Constitution providing that the equality guarantee contained in section 8(1) and the guarantee of the right not to be unfairly discriminated against contained in section 8(2) shall not preclude measures designed to achieve the adequate protection and advancement of persons and groups formerly disadvantaged by unfair discrimination in order to enable their full and equal enjoyment of all rights and freedoms – an affirmative action programme is not rendered immune from review merely by virtue of the provisions of section 8(3)(a) – nor does section 8(3)(a) justify any measure which prima facie infringes the section 8(1) and 8(2) rights of non-target groups merely because such measure is generally directed at the advancement of formerly disadvantaged groups – section 8(3)(a) protects only those measures which meet certain requirements to be gleaned from the provision itself – the only measures which are protected are those which do not extend beyond what is “adequate” for the purpose, which have been “designed” to achieve such purpose in the sense that they are carefully constructed to achieve it and not merely intended to achieve it, and which aim at enabling the target group to achieve “equal” enjoyment of their rights and freedoms – the objective of enabling the target group to achieve such equal enjoyment of rights and freedoms implies that in designing such measures the target group’s interests are not to be considered in vacuo but with due regard to the interests of the community as a whole and the possible disadvantages that the target group itself may suffer as an effect of the measures – where an affirmative action measure is brought under review, both the means adopted and the end envisaged will be subject to scrutiny.
State
employee – affirmative action programmes – section 212(5) of the Interim Constitution, in permitting an exception to the express requirements of section 212(4) as to the criteria which are to be taken into account in filling public service posts, does not permit unrestricted action to promote a public administration which is broadly representative of the South African community as envisaged by section 212(2)(b) – representivity may not be pursued in vacuo at the expense of the other constitutional requirements enumerated in section 212(2) – section 212(2)(b) itself requires that the public service promote an efficient public administration – it does not permit representivity to be pursued by sacrificing efficiency – where section 212(4) provides that the “suitability” of candidates is a factor to be taken into account in filling posts, the word “suitability” is used in the same sense as that in which it is used in the Public Service Staff Codes in relation to the merits of the candidate to meet the job
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requirements, and does not take into account race, gender or other qualities such that the particular candidate’s appointment would make the public service more broadly representative of the South African community – government department having earmarked certain posts to be filled exclusively by blacks, women or disabled persons, and having considered applications from members of such groups outside the public service while more qualified and experienced white male officials within its own department were desirous of being considered for such posts – department seeking to justify such action on the basis that such necessary to promote greater representivity in the public service as required by section 212(2)(b) of the Interim Constitution – department contending that it was unable to promote greater representivity without adopting an affirmative action approach, and that it was permitted to take into account race, gender and other like qualities in filling the posts on the basis that such qualities relevant to the “suitability” of the candidates as contemplated by section 212(4) – such action held in the circumstances to discriminate unfairly against white male officials within the department who were desirous of being considered for appointment of the earmarked posts.
Editor’s Summary
At the time that the Interim Constitution commenced the public service was, particularly the higher echelons thereof, largely the domain of white males. Promotion in the public service was largely governed by the provisions of the Public Service Staff Code and occurred in accordance with a system which took into account the qualifications, level of training, merit, efficiency and suitability of the persons who were contenders for appointment. Where a post could not satisfactorily be filled from within the ranks of the public service, the appointment of an outsider required the approval of the public service Commission (formerly the Commission for the Administration), Second Respondent. The provisions of the Public Service Staff Code were based on the recommendations of Second Respondent, whose function it was to make recommendations in respect of the employment, remuneration and other conditions of service of public servants. In terms of section 237 of the Interim Constitution, however, the public service was required to be rationalised as soon as possible with a view to establishing an effective administration as contemplated in section 212(1). Section 212(2) enumerated certain requisites which the new Public Service was required to fulfil including the requirement contained in section 212(2)(b) that it should “promote an efficient public administration broadly representative of the South African community”. Section 212(4) echoed the terms of previous legislation governing the public service by requiring that, “in the making of any appointment or the filling of any post in the public service, the qualifications, level of training, merit, efficiency and suitability of the persons who qualify for the appointment, promotion or transfer concerned, ... shall be taken into account”. Section 212(5) expressly provided that “subsection (4) shall not preclude measures to promote the objectives set out in subsection (2)”. Ostensibly to pave the way for the entry into the public service of sufficient numbers of members of formerly disadvantaged groups, an amendment to the Public Service Act (Proclamation 103 of 1994) provided that Second Respondent “may in accordance with section 212(5) of the Constitution and notwithstanding the provisions of section 11, give directions regarding measures to promote the objectives set out in subsection 212(2) of the Constitution”. Section 11, to which the amendment made reference, provided for the appointment to and filling of posts in accordance with the criteria mentioned above and had hitherto been construed in a manner which prohibited taking into account factors such as race and gender. Pursuant to
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the amendment, Second Respondent added further chapters to the Public Service Staff Code which were intended to provide for interim measures enabling the public service to absorb members of previously disadvantaged groups, and “to establish directives, guidelines and procedural measures directed towards ensuring that the selection of candidates is undertaken in a justifiable, equitable and fair manner, in compliance with the commanding provisions of section 11 of the Public Service Act”. These chapters were also intended “to provide interim measures and procedures relating to the staffing of the rationalised structures of the public service”. Although the provisions of the new chapters were to be applied only to departments which had already been rationalised, Second Respondent granted the department of First Respondent a dispensation to apply the provisions of the new chapters despite the fact that the rationalisation of First Respondent’s department had not been completed. First Respondent’s department then made a decision in October 1995 to earmark certain vacant posts as “affirmative action posts” while other posts would be filled strictly in accordance with section 11 of the Public Service Act. This decision was severely prejudicial to a number of officials in the State Attorney’s office. Various posts in that office were vacant throughout the country. They were advertised. Second Applicant and a number of other officials in the State Attorney’s office applied for such posts. All were very well qualified, experienced and eligible as candidates for the posts. None of them were appointed or even invited to an interview. The only persons from within the State Attorney’s office who were invited to an interview were three women each with considerably less experience than Second Applicant or any of the other male officials who were interested in such posts. At a meeting on 27 October 1995 when the final decision was taken by First Respondent’s department to earmark certain posts as “section 11” posts and others as “affirmative action” posts a representative of the State Attorney’s office specifically asked whether it would be worth the while of any serving officials in the State Attorney’s office to apply for the affirmative action posts. The reply that was given suggested that no white males would be considered for these posts. The Court observed that the course of conduct embarked on by First Respondent’s department appeared to fly in the face of logic, merit, efficiency and sensible administration.
Against this background, First Applicant, a body representing the interests of its members in all negotiations with their employer, the State, and also an admitted employee organisation as defined in section 1 of the Public Service Labour Relations Act (Proclamation 104 of 1994) together with Second Applicant, a senior assistant state attorney and a member of First Applicant, launched an application seeking relief which would preclude First Respondent from proceeding to deal with the filling of posts on an affirmative action basis.
In justifying the cause of action which had been embarked upon, Respondents pointed to the requirements of section 212(2)(b) of the Interim Constitution. This required the promotion of a public administration which was “broadly representative of the South African community”. The public service had hitherto essentially been the preserve of white males. It followed that in order to make it more representative, preference had to be given to black persons and women. It was impossible to do this without a programme of affirmative action. While section 212(4) required the “suitability” of candidates to be taken into account in making appointments, section 212(5) expressly provided that the former provisions “shall not preclude measures to promote the objectives set out in subsection (2)”. In order to promote a public administration broadly representative of the South African community, the word “suitability” in provisions such as section 212(4) had to be construed so as to permit the race and gender of candidates to be taken into account. Even if the process prima facie offended section 8(2) of the Interim Constitution guaranteeing the right of other persons not to be unfairly discriminated against, the process was justified by section 212(2)(b) and section 8(3)(a) which provides that the guarantee against unfair discrimination “shall not preclude measures designed to achieve
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the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms”.
The question arose as to the extent to which an affirmative action programme is shielded from review merely because of the provisions of section 8(3)(a). The Court pointed out that section 8(3)(a) was not merely a general description of what was to be considered fair, but contained its own requirements expressly stated. The words “adequate”, “designed” and “equal” were important. These words indicated that both the end envisaged as well as the means employed were reviewable. The measures which section 8(3)(a) contemplated as being saved were not permitted to go beyond what was adequate to protect the formerly disadvantaged groups. The words “designed to achieve” did not simply mean “aimed at”. “Designed” meant “constructed so as to achieve” rather than “intended to achieve”. The intention was a measure that was carefully constructed rather than one that was haphazard or random. There had to be a causal connection between the designed measure and the objective. The objective had to be the adequate protection and advancement of formerly disadvantaged groups. Adequate meant “sufficient” and no more. Furthermore, the fact that such measures were designed to enable formerly disadvantaged groups to attain equal enjoyment of all rights and freedoms meant that the interests of the target groups were not to be considered in vacuo, but also with regard to the rights of others, the interests of the community and the possible disadvantages that the target groups may themselves suffer.
<JL:Jump,"Act 200 of 1993 s 212(5)">Section 212(5)<EL> in permitting a certain disregard of the criteria set out in <JL:Jump,"Act 200 of 1993 s 212(4)">section 212(4)<EL> required that this be done to promote the objects set out in section 212(2). The latter provision was not restricted to the goal of broad representivity in public administration, but enumerated several other constitutional requirements. Furthermore, even within subparagraph (b) of section 212(2), representivity was not stated in isolation but in the context of the phrase “promote an efficient public administration broadly representative of the South African community”. Efficiency had to be promoted at the same time as representivity. Nor was the word “promote” to be equated with “achieve immediately”. Representivity could not be pursued as an objective in vacuo at the cost of other constitutional requirements, one of which was efficiency in public administration. This implied that the efficiency of the public administration could not be compromised for the sake of promoting representivity. If the situation in any particular instance were that both black and white candidates all had broadly the same qualifications and merits, a deliberate selection of black candidates would promote representivity without any cost to efficiency.
The Court then turned to applying these principles to the circumstances in casu. It came to the conclusion that the measures which had been adopted were haphazard, random and overhasty. They failed to meet the requirement of being “designed” measures. Affirmative action had been applied without any discernable rationale. The action amounted to the exclusion of all the other candidates for the post on the basis of their race and gender. The other candidates had been unfairly discriminated against.
The Court then set out its reasons for granting the order which it ultimately made, which departed slightly from the original prayer in Applicants’ Amended Notice of Motion.
First Respondent had brought a counter-application seeking an order declaring that section 11 of the Public Service Act permitted and required the race and gender of candidates to be taken into account in making any appointment or filling any post in the public service whenever it was necessary or appropriate to do so in order to promote a public administration broadly representative of the South African community. First Respondent’s counter-application was accordingly dismissed.
Respondents were ordered to pay Applicants’ costs.
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Judgment
Swart J
The finally amended prayers of the applicants read as follows:
“1.
The respondents are interdicted from making a recommendation, giving a direction or taking a decision or amending existing provisions and measures, if any, in pursuance of any power or function of any of the respondents, whether by delegated authority or otherwise, granted in terms of the Public Service Act of 1994 (Proclamation 103 of 1994), where such power or function relates to a matter of mutual interest as contemplated in section 13(1) of the Public Service Labour Relations Act of 1994 (Proclamation 104 of 1994) read with item 15, Part D, Schedule 7 of the Labour Relations Act 66 of 1995 (hereinafter referred to as ‘the PSLRA’) and relates to the making of any appointment or the filling of the vacant posts set out in prayer 7(a), (b) and (c) hereof in order to promote representivity of the public service as contemplated in section 212 of Act 200 of 1993, otherwise than:
1.1
in terms of section 13(6) of the PSLRA read with section 5(7) of the said Public Service Act; and
1.2
in terms of an agreement negotiated on such a matter in the relevant chamber of the Public Service Bargaining Council as defined in section 1 of the PSLRA.
2.
The decision and recommendation and/or direction of the second respondent to extend to 31 October 1995 the provisions of Chapter B (Special) of the Public Service Staff Code (hereinafter referred to as ‘Chapter B (Special)’), in so far as those provisions allow for the staffing of vacant posts in the public service by way of the procedures set out in paragraph 6.2 of Chapter B (Special), be reviewed and set aside.
3.
Alternatively to prayer 1 (which should read ‘2’):
A declaratory order is issued that the provisions of Chapter B (Special), in so far as they allow for the staffing of vacant posts in the public service by way of the procedures set out in paragraph 6.2 of Chapter B (Special), do not apply after 31 October 1995.
4.
The decision and direction of the second respondent purportedly taken and issued in terms of section 3(5)(a)(vii) of the Public Service Act of 1994, that in dealing with the staffing of rationalised posts with a view to promote representivity by either transfer/promotion of an official or the appointment of a person from outside the public service (see paragraph 6.2(d) of Chapter B (Special)), the candidature of persons from within or outside the public service who meet the advertised requirements and whose transfer/promotion/appointment will promote representivity, must receive preference, subject to the following conditions:
(a)
Posts falling in the category mentioned above must be advertised;
(b)
When requesting the advertising of the relevant post, it must be clearly stated that the relevant executing authority, assisted by his/her head of department has in terms of the prescripts of paragraphs 6.2(c) and 6.2(d) and in accordance with an approved management plan prescribed in paragraph 6.3, identified the relevant rationalised post to be utilised to promote representivity;
(c)
it must also specifically be stated in the relevant advertisement that it is the intention to promote representivity in the public service through the filling of the relevant post and the candidature of persons whose transfer/ promotion/appointment will promote representivity, will receive preference;
be reviewed and set aside.
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