SHAMIMA GAIBIE
Director: Cheadle Thompson & Haysom
The impact of the Barnard decision
INTRODUCTION
THE CONSTITUTIONAL RIGHT TO EQUALITY & THE EQUIVALENT RIGHT IN THE EEA
Section 9 of the Constitution is central to this debate. It provides:
S 9(2):
‘Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.’ S 9(3) and (4) prohibit unfair discrimination.
S 9(5):
‘Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.’
Section 6 of the EEA is the equivalent provision and directly relevant to employment matter. It provides:
Section 6(1):
‘No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.’
Section 6(2) recognises that: ‘It is not unfair discrimina on to ―
(a)
take affirmative action measures consistent with the purpose of this Act; or
(b)
distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.’
Affirmative action raises difficult questions about the relationship between the aim and the measures. For instance, should there be a relationship between the aim and the measures? If so, how close should the fit be? Is it enough that the measures should be reasonably capable of achieving the aim or must the measures demonstrate that the aim will be achieved with certainty? What criteria must be proved to demonstrate that the aim is achievable either reasonably or with certainty? How is the disadvantaged group or how are the beneficiaries of affirmative action identified? Should there be a difference in treatment between those who make up the disadvantaged group either on the basis of colour or on the basis that some of them have not in fact suffered disadvantage? If so, how should such a difference be applied and what criteria would justify such a difference in treatment? Should the application of affirmative action measures be balanced against the cost to those who have been deliberately excluded?
THE VAN HEERDEN JUDGMENT
In 2004 the CC in Minister of Finance & another v Van Heerden3 had occasion to interpret these provisions. 3
2004 (6) SA 121 (CC)
THE FIT BETWEEN THE AIM OF EQUALITY AND THE MEASURES TO ACHIEVE EQUALITY Should there be a relationship between the aim and the measures? If so, how close should the fit be? In Van Heerden the CC stated that the remedial measures must be ‘reasonably capable of attaining the desired outcome’. This excludes measures which are arbitrary, capricious, or display naked preference, or are not reasonably likely to achieve the end of advancing or benefiting the interests of those who have been disadvantaged by unfair discrimination. In other words, the CC requires the measures to meet the standard of reasonableness, and not of necessity. HOW DOES THE CONSTITUTIONAL COURT DETERMINE WHETHER A MEASURE MEETS THE STANDARD OF REASONABLENESS
In Van Heerden, Moseneke J established a three‐stage test for determining whether a measure falls within s 9(2):
• First, the measure must target persons or categories of persons who have been disadvantaged by unfair discrimination;
• Second, the measure must be designed to protect or advance such persons or categories of persons;
• Third, the measures must promote the achievement of equality.
First stage – categories of persons
The Constitution leaves the detail of the potential beneficiaries of affirmative action deliberately vague and open ended. While race will be the permeating feature of affirmative action measures, the CC recognised that the purpose of s 9(2) is to redress disadvantages based not only on race but also on the basis of gender and class and ‘other levels and forms of social differentiation and systematic under‐privilege, which still persist’.
In contrast, s 1 of the EEA identifies the following three distinct categories of beneficiaries:
•
black people, •
women of all races and •
people with disabilities. •
The category of black people is intended to cover the same racial categories that are reminiscent of the apartheid era, such as ’African’, ‘coloured’ and ‘Indian’.6
6 See the definition of ‘black people’ in s 1 of the EEA
Does this identification of beneficiaries mean that all members of those categories should benefit simply because they share the same protected characteristic, or is something more needed? Put another way, should middle class blacks benefit even though they are affluent and no longer experience either racial or socio‐economic disadvantage?
Moseneke J held that the measure should be assessed by ‘whether an overwhelming majority of members of the favoured class are persons designated as disadvantaged by unfair exclusion’. Mokgoro J’s separate but concurring judgment was more unequivocal in this regard. According to her, actual disadvantage does not have to be demonstrated, as membership of the group identified by legislation is all that is needed to benefit from affirmative action measures. Second stage ‐ the measure must be designed to protect or advance such persons or categories of persons As indicated earlier, the measures ‘must be reasonably capable of attaining the desired outcome’. The meaning of what is ’reasonably possible’ is open‐ended and the courts will have to develop appropriate jurisprudence in this regard over time. According to Currie & De Waal, ‘it is necessary to show both the purpose of the programme in question and the means selected are reasonably capable of meeting that purpose. This requires affirmative action programmes to be carefully constructed to achieve equality ’. •
In an attempt to grapple with this requirement, our courts have developed the principle of rationality. •
The following principles have emerged from the jurisprudence thus far:
• There must be a policy or programme through which affirmative action measures are to be effected for the purposes of ensuring accountability and transparency7; • An affirmative action policy or practice that is ‘haphazard, random and overhasty, could hardly be described as measures designed to achieve something’; 7(2000) 21 ILJ 1119 (LC) para 19
• The refusal to promote an employee in circumstances where an employment equity plan was not yet in existence constituted unfair discrimination8; • shortlisting formulae aimed at excluding members of a particular race were essentially discriminatory and irrational9; • the refusal to promote an applicant on the basis of the application of an affirmative action measure in circumstances where the employer’s affirmative action targets had been reached and the applicant was the best candidate for the post was arbitrary and unfair10; • the refusal to promote an applicant in consequence of an erroneous application of an employment equity plan was arbitrary and unfairly discriminatory11;
8 Public Service Association of SA obo Helberg
v Minister of Safety & Security & another (2004) 25 ILJ 2373 (LC)
v Minister of Justice & Constitutional Development & others (2006) 27 ILJ 1811 (SE)
10Willemse v Patelia NO & others (2007) 28 ILJ 428 (LC)
11Baxter v National Commissioner: Correctional Services & another (2006) 27 ILJ 1833 (LC)
9 Du Preez
• Employment policies or programmes which afforded absolute preference to members of designated groups who met the minimum job requirements were not compatible with the variety of factors that needed to be taken into account for an employment decision to meet the constitutional requirements of fairness and proportionality12;
• In appropriate circumstances, the imperatives of ‘efficiency’ and ‘service delivery’ in the public service are factors that must be taken into account in the implementation of an employment equity programme13. 12 Du Preez.
13 Public Servants Association of SA & others v Minister of Justice & others
1997 (3) SA 925
Third stage ‐ the measures must promote the achievement of equality In determining whether a measure promotes the achievement of equality, the CC requires us to assess whether the measure will ‘in the long term promote equality’ and it requires a consideration as to whether the measure constitutes an abuse of power, or imposes ‘such substantial and undue harm on those excluded from its benefits that the long term constitutional goal will be threatened’.
The second and third stages of the Moseneke test are at best, broad principles upon which employment equity plans should be premised. Whether a particular appointment constitutes an ‘abuse of power’ or imposes ‘substantial and undue harm’ on those excluded from the benefits of such appointment can only be assessed at the point of implementation and in the circumstances of a particular case. Mokgoro J, distanced herself from the third stage of the Moseneke test, in the following terms: ‘This distinction is in my view important. It would frustrate the goal of section 9(2) if measures enacted in terms of it paid undue attention to those disadvantaged by the measure when that disadvantage is merely an invariable result and not the aim of the measure. The goal of transformation would be impeded if individual complainants who are aggrieved by restitutionary
measures could argue that the measures unfairly discriminated against them because of their undue impact on them . . .. It is for this reason that the equality jurisprudence developed by this Court in the context of s 9(3) is unsuited to analysis under s 9(2). The test as established by cases such as Harkson v Lane NO and Others and President of the Republic of South African and Another v Hugo would focus unduly on the position of the complainant to be appropriate to the section 9(2) analysis.’ This difference in approach between Moseneke J and Mokgoro J leads us to an important question: on the assumption that an employer’s employment equity plan complied with the threefold test set out by Moseneke J, would all measures that fall within the proposed targets qualify for protection from any unfair discrimination claims? Moseneke J said the following in relation to this issue:
‘It is therefore incumbent on Courts to scrutinise in each equality claim the situation of the complainants in society; their history and vulnerability; the history, nature and purpose of the discriminatory practice and whether it ameliorates or adds to group disadvantage in the real life context, in order to determine its fairness or otherwise in light of the values of our Constitution. In the assessment of fairness or otherwise a flexible but ‘situation sensitive’ approach is indispensable because of shifting patterns of hurtful discrimination and stereotypical response in our evolving democratic society . . . ’
Moseneke J went on to explain:
‘If a measure properly falls within the ambit of s 9(2) it does not constitute unfair discrimination. However, if the measure does not fall within s 9(2), and it constitutes discrimination on a prohibited ground, it will be necessary to resort to the Harksen test in order to ascertain whether the measures offend the anti‐discrimination prohibition in section 9(3).’
And:
‘When a measure is challenged as violating the equality provision, its defender may meet the claim by showing that the measure is contemplated by s 9(2) in that it promotes the achievement of equality and is designed to protect and advance persons disadvantaged by unfair discrimination.’
THE EMPLOYMENT EQUITY ACT
According to Woolman et al, the Van Heerden judgment demonstrates that the application of the s 9(2) criteria to a particular case involves a fairly detailed scrutiny of the issues and that:
‘This assessment requires looking at the scheme or measure as a whole, its historical context, the duration, nature and purpose of the measure, the position of the person complaining of unfair discrimination and the impact of the measure on him or her and his/her class, as well as the position of the group being promoted. In other words, the issues considered in the enquiry are similar to those considered in the enquiry into unfair discrimination. Like that latter enquiry, s 9(2) demands a contextual enquiry into impact, but with an emphasis on the group being promoted.
THE BENEFICIARIES OF AFFIRMATIVE ACTION
Perhaps one of the most controversial issues that has arisen in recent times is whether, and if so, on what basis, a legitimate differentiation should be made between persons within a particular disadvantaged group. There is no proper design or map for such differentiation in the EEA. There are however other indirect pointers relevant to this issue. • s 195(1)(i) of the Constitution provides: ‘Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past to achieve broad representation.’
• The preamble to the EEA requires the achievement of a ‘diverse workforce broadly representative of our people’. • This requirement is developed in s 15 of the EEA which equates the concept of ‘broadly representative’ with ‘equitable representation’. Neither of these terms is defined in the EEA. • s 15(1) which defines affirmative action measures as –
‘measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer’.
• In assessing compliance of a designated employer with its employment equity obligations in terms of the EEA, the director‐general14 is required in terms of s 42(a)(i) of the EEA, to take a range of factors into account including the ‘demographic profile of the national and regional economically active population’ (the demographics or demographic data).
• Section 19(2) of the EEA requires a designated employer, before developing an EEP, to determine the degree of underrepresentation of people from designated groups in various levels at the workplace. 14 Department of Labour. • The determination required in terms of s 19(2) is done with reference to demographic data (item 7.3.2(b) of the code).
• The demographic data may be regional, provincial or national depending on the level of responsibility and the degree of specialisation of the job (this might mean that the more specialised the job, the bigger the recruitment area) (item 7.3.2(c)).
• The ultimate goal is to make the workforce reflective of the demographics (item 8.4.1 of the code). In order to make the workforce reflective of the demographics, employers must rely on the statistics obtained from the most recent census report. The census report will allocate posts in order of the following preference: Africans, whites, coloureds, Indians and the disabled (and cater for the female component within each group). If national population demographics are used, whites will be allocated more posts than the other designated groups (such as the minority groups, consisting of coloureds and Indians). Given that the purpose of affirmative action measures is intended to redress the imbalances of the past, a strict application of the national demographics simply does not achieve this purpose. It ‐
• converts numerical goals or targets into quotas; • establishes barriers to a flexible and situation sensitive approach; • allocates more posts to whites than it does to the minority groups within the designated class; • is intrinsically racist and divisive of the persons who make up the designated group; and • inevitably deprives the minority groups of representation in the higher paying or more senior positions. It is the latter issue that was raised by the facts, rather than the outcome, of two recent cases: Naidoo v Minister of Safety & Security & Others15 and Munsamy v Minister of Safety & Security & another16.
In Naidoo, a female of Indian descent applied for one of 19 posts established in different parts of the country. The post was entitled ‘cluster commander’ and it was a senior post established at level 14. Relying on the demographic data provided by the 2001 census report, the South African Police Service (SAPS) formulated its EEP for the period 2007 to 2010 in the following ratios: •
•
•
•
79% African; 9,6% White; 8,9% Coloured; 2,5% Indian. 15 (2013) 34 ILJ
16 (2013) 34 ILJ
2279 (LC)
2900 (LC) The 19 posts had to be allocated according to the following mathema cal calcula ons ― •
•
•
•
Africans: 19 x 79% = 15 of the 19 posts; Whites: 19 x 9,6% = 1,8 posts; Coloureds: 19 x 8,9% = 1.6 posts; and Indians: 19 x 2.5% = 0.475 posts.
The net effect of these targets: • in the lower grades or levels where there may be many more jobs in the public service, the 2,5% ratio allows for some Indian representation; • in the middle or top level jobs, where the jobs are few, both Indians and coloureds will not be represented. • The consequences for female incumbents of these minority groups are much worse.
THE BARNARD JUDGMENT
So how does the CC deal with these issues, if at all, in the Barnard matter?
What is the test to determine whether a restitution measure falls within the ambit of section 9(2) of the Constitution and section 6(2) of the EEA?
All the judges in Barnard confirm the test established in Van Heerden.
The measure must –
(a) target a particular class of people who have been susceptible to unfair discrimination;
(b) be designed to protect or advance those classes of persons; and
(c) promote the achievement of equality17.
According to the majority judgment –
once the measure passes this 3 stage test, any measures taken in consequence of it, is neither unfair nor presumed to be unfair18;
17 Para 36
18 Para 37
Can there be any challenge to the implementation of affirmative action measures?
•
the implementation of restitutionary measures that emanate from a valid EEP may be challenged but only for the following very limited purpose of:
‘deciding whether a valid Employment Equity Plan has been put into practice lawfully’ and it ‘may not be harnessed beyond its lawful limits or applied capriciously or for an ulterior or impermissible purpose’20
•
As a bare minimum, the implementation of a legitimate restitution measure must be rationally related to the terms and objects of the measure21.
20 Para 38
21 Para 39
Analysis of the majority judgment
•
This judgment is a fundamental shift, if not a substantive retraction of the Van Heerden
judgment and the difference in approach has not been explained.
•
It is Mokgoro J’s single and separate judgment in the Van Heerden matter that has been elevated as the appropriate standard in this matter. •
Apart from Van Der Westhuizen J, none of the other judges raise the nature of the three stage test, and the fact that the (2nd and) 3rd legs of that test can only be determined at the stage of implementation of the plan rather than at the point of formulation and approval. The majority simply assumed that the 3 stage test is applicable at the point of formulation and approval of the plan.
o On the majority’s argument, an affirmative action measure must be constitutionally compliant at the point of formulation (and approval); o On the minority’s view, an affirmative action measure must be constitutionally compliant at both the point of formulation and implementation; •
There is in my view a fundamental misconception about equating the provisions of section 6(2) of the EEA with section 9(2) of the Constitution.
o The structure and wording of section 9 might indicate that the measures meeting the requirements of section 9(2) cannot be unfair discrimination under sections 9(3) to (5). o Issues relevant to the principle of equality and discrimination in the workplace are governed by the LRA and the EEA.
o Section 6(1) of the EEA states the general prohibition against discrimination, and section 6(2) provides the employer with two defences or justifications to avoid a declaration of unfair discrimination. 
The first justification is for an employer to claim that the conduct although overtly discriminatory is justifiable because it is an affirmative action measure ‐ section 6(2)(a);

The second justification is for the employer to claim that the conduct although overtly discriminatory is justifiable because it is an inherent requirement of the job – section 6(2)(b).
THE END