Affirmative action, bomb squads and political capital

Affirmative action, bomb squads and political capital

By Perrott Van Niekerk Woodhouse Inc. who may be contacted at www.elaw.co.za & www.caselaw.co.za

# COETZER & 11 OTHERS V THE MINISTER OF SAFETY AND SECURITY JS222-2002 (LABOUR COURT)

More than 3 months after the Labour Court decided a case involving the application of affirmative action measures in the SAPS Bomb Disposal Squad, Solidarity proudly announced to the world in Business Day this week that "there are limits to the implementation of affirmative action" and that business would be encouraged to review affirmative action programme.

Comments from various advisers and consultants varied in their response to the judge's refusal to allow SAPS leave to appeal against his ruling, but all of them read some significance into the judgement. One expects unions to make political capital out of their victories, but the SAPS judgment says little that is new or controversial.

The case was brought by inspectors in the Bomb Squad (all white males) who complained that their exclusion from consideration for promotion into posts designated for affirmative action candidates unfairly discriminated against them on the grounds of their race.

The Judge decided that the SAPS's defence of the application of an affirmative action measure (a recognised defence to a claim of discrimination) should fail. He did so because the SAPS had failed to produce a specific affirmative action plan for the unit, and because the national commissioner had refused to promote the employees concerned only on account of imperatives in the SAPS's more general employment equity plan to promote representativity. In doing so, he had overlooked the constitutional imperative that the SAPS maintain its efficiency. The Court ordered the SAPS to promote the employees to the rank of captain.

The Courts have never interpreted the affirmative action defense in an unlimited fashion. The starting point is that the Constitution embodies a substantive conception of equality- one that recognises that the right to equality extends beyond mere non-discrimination. Both the Constitution and the Employment Equity Act recognise that affirmative action measures are consistent with this conception of equality.

The Employment Equity Act allows an affirmative action measure, consistent with the purposes of the Act, as a specific defence to a claim of unfair discrimination. In this context, the Courts have been called on to balance considerations of efficiency with those of representativity. But efficiency is not generally recognised as a matter to be considered separately from or in opposition to representativity. While the requirement of represenativity is often linked to efficiency; they are not competing or opposing aims. If there is any tension between these ideals, the Courts attempt to strike a balance. That is what Judge Landman did in the SAPS case.

In this instance, the efficiency of the police force was a constitutional imperative that had to be accorded proper weight. But that does not mean that employers can circumvent their obligations under the Employment Equity Act by creating artificial barriers based on efficiency requirements. It also does not mean that efficiency requirements must be sacrificed in the blind pursuit of demographic represenativity. Proper, considered affirmative action plans, rationally applied, will pass the test. Random, haphazard discrimination will fail.