"I am not a number! I am a free man!" The employment equity act, 1998 (and other myths about the pursuit of "equality", "equity" and "dignity" in post-apartheid south africa) part 2 am louw1 summary

The (non-)role of the contentious issue of service delivery in Barnard (CC)

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4.2 The (non-)role of the contentious issue of service delivery in Barnard (CC)

I do not intend to wade in here on the "representivity vs efficiency" debate41 that has frequently reared its head in respect of affirmative action. However, one matter that I find particularly worrying in the Constitutional Court's judgment in Barnard, in the light of the broader context of the litigation, is the degree of deference paid to the National Commissioner's decision on whether the failure to fill the relevant post would affect service delivery. This is not some peripheral issue; it is extremely important in the context of the greater constitutional milieu. As Pretorius observes:

... the standard of judicial review affects the degree of public accountability expected of the state for actions which limit rights. Judicial review institutionalises the degree of public accountability through the imposition of a particular burden of justification.42

Also, please remember that we are faced with almost daily media reports detailing alleged problems within the SA Police Service (quite apart from more general negative reporting on government service delivery). Even though the CC held that Ms Barnard had in fact abandoned her claim that her non-appointment negatively affected service delivery,43 this was an extremely important issue within the broader context of this case (if not on the pleadings, as such).

With that in mind, it is one thing for the court to say – as various judges did44 – that this question of the potential impact on service delivery of the claimant's non-appointment (or the fact that no-one was appointed) was a matter within the sole discretion of the Commissioner and that the court would or should be loath to interfere in this regard (especially in the light of the fact that the respondent had not brought a judicial review challenge to the decision). But it is another thing to consider that the judges of the court are surely all very familiar with the fact that this non-filling of posts through a system that at least bears some resemblance to a de facto, if not officially acknowledged, system of job reservation for designated groups, appears to have become quite widespread practice in the public service. At least, this seems to be true for the SA Police Service. If this were not the case we would surely not have seen so many cases similar to Barnard's and implicating the SAPS confronting the courts or arbitrators in recent years.45 And note also, of course, that at least one judge of the Constitutional Court not only acknowledged but also seemed to have no problem at all with a system of race-based job reservation46 - this simply must be cause for concern.

A former director of the SA Institute for Race Relations recently published a very provocative piece in the media about the effects of ill-considered affirmative action policies (and other problems) on South African society, with a special focus on the public service and on government's poor record of service delivery.47 In this piece, John Kane-Berman blames affirmative action (as applied in the public sector) for some major service delivery problems:

According to the Institute of Municipal Finance Officers, one third of all municipal officers, chief financial officers, and municipal supply chain managers do not have the right skills for the job. Three quarters of these posts are vacant. An audit by the South African Institution of Civil Engineering found that 83 of all municipalities - about a third of them - had no civil engineers, technologists, or technicians on their staff. Some 35% of these posts - enough for a thousand engineers - were unfilled, mainly because of budget constraints. The South African Institute of Electrical Engineers says huge numbers of engineers have been displaced.48

What is probably one of the most controversial aspects of Kane-Berman's piece - and the one which I find most interesting - is its bare-fisted indictment of an alleged, rather sinister motive behind affirmative action public service recruitment (I believe that this passage deserves to be quoted in full, as follows):

According to the [Commission for Employment Equity], Africans now hold 69% of top management jobs in government. But Africans within the 35-64 age cohort from which one would expect top managers to be drawn make up only 36% of the economically active population, while only 4.1% of over 20s have post-school training. This suggests that affirmative action has been rigorously implemented in the public sector regardless of levels of experience or formal qualification. Ivor Blumenthal, a business strategy consultant, reported in May 2014 that he was seeing a cleansing of white employees out of the public sector ... Very few people are willing to identify affirmative action as part of the problem. One who has done so is Adam Habib, vice chancellor and principal of the University of the Witwatersrand. In a paper in August 2013 he identified affirmative action and cadre deployment as among the causes of the 'malaise' in the public service. Professor Habib wrote: "As black staff were being recruited, mostly white incumbents were allowed and even encouraged to leave." Part of the reason for this, he said, was budget cuts. It nevertheless "sabotaged the skills-transfer process. The very people who could have played the role of mentors were no longer in the public service, and black recruits, particularly newly qualified young graduates, were set up for failure as they entered." Habib also observed that "a public service manager would be rewarded for not appointing a white candidate to a vacancy, even if no black candidate was available, since employing a white candidate would compromise that manager's transformation targets and annual bonus. Despite the fact that such behaviour violates the spirit of South Africa's constitution, the quantitative character of the performance management system made it logical for managers to leave vacancies unfilled rather than appoint qualified white candidates." One consequence, he said, is that the public service "is now saddled with employees who have severe deficiencies in their skill sets." These points need underlining. In the name of "transformation" managers in the public service have actually been incentivised to keep whites out for racial and ideological reasons. Better to leave a vacancy unfilled than to put a white person into it. Getting rid of whites and leaving vacancies unfilled not only hurts the whites in question, but sets up newly qualified young black recruits for failure. Their failures in turn hurt countless numbers of people dependent on the public service. This might be described as a lose-lose-lose situation. Or as madness. Yet despite all of this, the government and the ANC seem determined to pursue affirmative action. [My emphasis]

All of this may be quite alarmist and may very well be open to valid criticism from various quarters, but it would be irresponsible to label this simply as anti-establishment (or party-political) rhetoric, or to say that it departs much from at least a core truth regarding the reality of the experience of the application of transformation measures in the corridors of government offices across the country.49 Are we to believe that the judges of our highest court are blissfully unaware of this and of other such opinions50 as are regularly expressed in the public discourse? The Constitutional Court's deference in Barnard to the decision of the National Commissioner of Police on whether there might be service delivery implications of such a practice (the non-filling of posts in the interests of ensuring race or gender representivity) seems to ignore this reality (or, at least, perception), and this is troubling not only because of the potentially unfairly discriminatory effects of such a de facto "policy". It also ignores the undoubted reality that it is quite possible that only a fraction of cases ever reach the courts - Stuart Woolman has characterised the problem (in another context) as "the structured silence of disputes that never make it to court".51 Also, what of the chilling effect of job advertisements clearly labelled as "employment equity" positions, which are so prevalent especially in respect of government jobs? How many potential candidates (from either the non-designated group, or from the minority designated groups) never apply for such positions as a result? It is probable that the problem of such illegitimate job reservation is in fact much more widespread than the law reports might suggest (even though the number of cases that have reached the courts is significant in itself). In this sense, it is instructive to read Pretorius's comment (in his analysis of the Labour Court's judgment in Barnard), which raises the spectre that the pursuit of representivity may lead to the devaluation of other, germane and obviously relevant considerations in such cases:

The intended outcome [of the measure applied in Barnard] was to enhance the statistical racial balance in the particular subdivision. In this analytical scheme, concerns related to service delivery are of decidedly less importance than in the case where the organising principle of the inquiry is fairness and/or proportionality. The same holds for the weight the court attributed to the applicant's personal circumstances and the fact that the post was left temporarily vacant in the absence of suitable designated candidates.52

As I have indicated above, the logical and other inconsistencies inherent in this pursuit of a racial balance in the workforce are just too numerous and significant for this concept (or such a system of target-setting) to serve as justification for ignoring any other relevant factors. In a case such as Barnard this applies to the issue of the potential impact of race-based job reservation on service delivery. (This is especially true where posts are left vacant purely in the interests of representivity). One must thus ask whether it is not highly irresponsible of the CC to simply defer to the Commissioner's judgment in respect of such a high profile case (especially in the light of the obvious paucity of the reasons provided by the Commissioner for his decision in this instance), as the CC is probably well aware that the (potential) problem is much more prevalent and that its impact extends well beyond the bounds of one specific case.53 Examples abound, although Coetzer's case54 may have been the high (or should that be low?) water mark in this respect, due to the obvious illogicality of leaving the relevant posts in a critical division of the Police Service vacant in the interests of transformation/race representation. But that does not mean that less blatant but potentially as invidious (and dangerous) cases of such elevation of policy over function and need do not present on a daily basis. Is it then not strange for van der Westhuizen J (for example) to tell us that Coetzer's scenario is distinguishable from that of Barnard, because the latter involved a less important police function than the former? The learned judge appears to feel that the SAPS bomb squad (Coetzer) does more important work than the section (in Barnard) that investigates complaints "concerning police services including inadequate investigations, improper police conduct and corruption".55 Do the names Andries Tatane, Mido Macia and Marikana (not to mention alleged corruption and other indiscretions – Selebi,56 Cele and Mdluli) ring any bells? I cannot remember the last public media report of a significant (failed) explosion investigated or thwarted by SAPS, but I don't need to rack my brain much to know that these last types of issues raise their ugly heads on almost a daily basis in most of our public discourse about SAPS.

Instead of an indictment of the practice of such job reservation at the potential cost of service delivery, as probably being blatantly racist and destructive of the developmental ethos of our Constitution (and as a contemptuous slap in the face of Ubuntu), the judges of the CC in Barnard gave us flowery language regarding the importance of equality and upliftment and the plight of those disadvantaged by unfair discrimination ... without much more of substance. I personally would have appreciated less of van der Westhuizen J's views regarding the value of the words of John F Kennedy for our no doubt understandably disillusioned "born-frees", and more of Jafta J's views on why the reservation of jobs "for black officers" is so undeserving of critical constitutional scrutiny.57 In my opinion, and at the very least, the CC could and definitely should have sent a warning shot across the bows of public service managers who may feel comfortable in persisting in such practices in the name of ensuring racial (or gender) representivity on a balance sheet űber alles.58 After all, as Pretorius observes, "[i]t is the function of courts to 'compel public authorities into a process of reasoned engagement' when a violation of rights is claimed".59 We find very little if any of this in the CC's judgment. In the light of the Constitution's requirement of "broad representation" in the public service (as mentioned earlier), are we to believe that the judges of our highest court are (also) unaware of the White Paper on Affirmative Action in the Public Service published in 1998, which declared the end prize of transformation rather unequivocally to be as follows:

The Department [of Public Service and Administration] will, in particular, review national departments' and provincial administrations' progress in achieving numeric targets for representation, and will propose improved and refined targets with the aim of reaching the ultimate goal of full demographic representation. [My emphasis]60


The targets in the White Paper on the Transformation of the Public Service are minimum national targets. They do not represent the ultimate goal, which is that all groups and levels within the Public Service should be representative of society as a whole. For example, the target of 2% for people with disabilities is still well below the 5% of people with disabilities in society as a whole; and the 30% figure for the recruitment of women is only an interim step to achieving their full demographic representation.61

We have seen that this is not what the Constitution provides. So is all this then just a(nother) case of "the Constitution says, but government does otherwise", in a climate of Nkandla and/or "Guptagate"-like untouchability? If taking judicial notice of broader developments in the public service were out of the question (for some reason – and I simply cannot agree with the reason provided by van der Westhuizen J),62 the court could at least have taken a more active interest in the effects of these self-same affirmative action policies specifically in the SA Police Service, which was actually and very directly before it in the dock.63

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