This is the last of a three-part series that puts the question: Should the courts play a ‘special role’ in public sector workplace affirmative action challenges in South Africa? Broadly, the series focuses on the adjudication of challenges to the application of affirmative action in terms of the Employment Equity Act, 1998 in the public sector. It highlights the potential negative impact of poorly implemented affirmative action on service delivery to the poor, and considers whether affirmative action in the public sector always succeeds in meeting the demands of constitutional compliance. I argue that the Employment Equity Act’s relatively limited potential for achieving substantive equality may in many cases be outweighed or overshadowed by the constitutional importance of fulfilling delivery of socio-economic rights to the masses of poor citizens. I recommend a special approach by our courts to adjudicate such claims (which mostly present as individual equality-based/unfair discrimination claims) to move away from the narrow consideration of the interests of individual beneficiaries and non-beneficiaries, to incorporate the interests of persons beyond only the parties before the court, who represent a truer measure of service delivery by the public sector.
What remedies are available?
Even though section 6(2) of the EEA provides that it is not unfair discrimination to apply affirmative action consistent with the purpose of the Act, the Labour Court in Coetzer v Minister of Safety and Security (“Coetzer”)[1] recognised that affirmative action under the EEA is not an absolute defence to a claim of unfair discrimination by non-beneficiaries.
As Partington and Van der Walt have observed, “[a]ny imperative contained in the Constitution may affect and influence the defence of affirmative action”.[2] In Coetzer this was the imperative of efficiency within the SA Police Service. Justice Landman explained that section 3 of the EEA requires it to be interpreted in compliance with the Constitution, but that this went beyond just interpretation of the Act’s provisions.
He held that the Constitution “envisages a balance between the affirmative action imperative and other imperatives including, as in this instance, the need for the police service to ‘discharge its responsibilities effectively’.”[3] This accords with the following as expressed in Public Servants Association of SA & others v Minister of Justice & others:[4]
“[R]epresentativity cannot be pursued as an objective in vacuo at the cost of other constitutional requirements. Although what an ‘efficient’ public administration is, may, to a certain extent, be subject to interpretation, it also means to my mind that the efficiency of the public administration cannot be compromised by promoting a broadly representative public administration. I think this follows as a matter of logic and experience. It is the civil service which bears the enormous responsibility and requires the extensive expertise to manage the country on the ground from day to day, which management encompasses a myriad of statutory provisions, scientific and technological requirements and logistical and administrative applications, to mention but a few. This is particularly true of professional departments such as for instance the state attorney’s offices. To my mind a broadly representative public administration can, in terms of s 212, not be promoted at the expense of an efficient administration … The public and the taxpayer, including targeted persons or groups, are entitled to an efficient administration.”
See also the following from South African Police Services v Zandberg and Others:[5]
“Promoting equity in the workplace can therefore not conflict with or compromise the constitutional promise, which includes equitable delivery of goods, socio economic rights and benefits and services, including security services. Equity is therefore not only a workplace concern but also a community concern. Therefore, in assessing merit and suitability, qualities relevant to ensuring delivery to the community must also be considered.”
It is, however, not only in respect of the scope of affirmative action as a defence under section 6(2) of the Act that Coetzer is informative. It also provided some guidance regarding appropriate remedies in cases involving the public service. Section 50 of the EEA makes provision for the orders the Labour Court can make upon a finding of unfair discrimination against an employer. This includes an order for compensation, an award of damages, and an order directing an employer to take steps to prevent the same unfair discrimination or a similar practice occurring in the future in respect of other employees.
After finding that the National Commissioner’s decision to not appoint the applicants from non-designated groups had considered representivity but not the efficiency of the service (a critical one within the SAPS), Justice Landman held that such decision was irrational, and that it would have been reasonable and rational for the non-designated group applicants to have been appointed to the relevant posts.
Section 50(2) of the EEA provides that, upon a finding of unfair discrimination against an employer, the Labour Court may make “any appropriate order that is just and equitable”. As McGregor puts it, Coetzer is authority that “[i]n fashioning a remedy for a case of unfair discrimination in the public sector, it was not sufficient to consider only the circumstances of the applicants”.[6] On the facts of the case, Justice Landman came to the following conclusion in respect of the appropriate remedy:
“Where the discrimination, as in this case, affects the ability of the police service to render an efficient service to the community, a remedy restricted to monetary compensation would not be appropriate. The remedy must be one which addresses the interests and benefits of the South African people. An order for damages and compensation is not one which would be appropriate. The promotion of the applicants would, in my view, be the most appropriate remedy and be one which is just and equitable.”[7] ‘
While McGregor believes that Coetzer “should not be read as a blanket ruling, because it was based on very specific circumstances’” she does believe it has value:
“Landman’s J reasoning with regard to an appropriate remedy created a precedent for cases on employment law. The interests and benefits of the South African people were held to be important in deciding on an appropriate remedy. The judgment shows how the Constitution must be used in interpreting a national law. The labour court has interpreted the EEA in compliance with the Constitution (s 2 of the EEA) and has promoted the spirit, purport, and objects of the Bill of Rights (s 39(2)) of the Constitution).”[8]
Coetzer provides food for thought in cases where the aggressive pursuit of demographic representivity in the public sector may have a serious and detrimental impact on service delivery to the poor and the needy. Considering, especially, the potential ramifications of narrowly tailored transformation policies for the realisation of socio-economic rights on a broader scale may require that Labour Courts faced with individual equality-based challenges to such policies should be required to go beyond the claim at issue and the parties before it, and to apply a more broadly constitutionally aligned jurisprudence.
This does not have to negatively impact on the separation of powers; it may in fact provide a prime example of the success of checks and balances within the system.[9]
It is my contention that a court adjudicating a challenge to a representivity-based affirmative action policy or measure in the public service should be ever alive to the interests of the public in respect of the demand for efficient and speedy service delivery. This might, specifically, entail such court having to seriously consider ordering the appointment or promotion of an applicant from a non-designated group where such applicant meets the criteria for the relevant post. It might also require a court that finds it improbable that a suitable designated group candidate might be found by way of further advertising of a post, to make an appropriate order to interdict such further advertisement(s) in the interests of the immediate filling of a post which is required in order for services to be delivered.[10]
Conclusion
The problematic forms of public service affirmative action policies and measures discussed here, to my mind, place the greater transformative constitutional project in jeopardy. It has the potential to threaten more than just the achievement of equality, although at the very least it seems incompatible with the parameters for the constitutionality of affirmative action as set out in Van Heerden. There Justice Moseneke observed the following:
“Determining whether a measure will in the long run promote the achievement of equality requires an appreciation of the effect of the measure in the context of our broader society … In assessing therefore whether a measure will in the long-term promote equality, we must bear in mind this constitutional vision. In particular, a measure should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened.”[11] [My emphasis]
In appropriate cases, where complainants who challenge public sector affirmative action policies or measures are themselves from non-designated groups (or from minority designated groups who are non-beneficiaries of such policies or measures based on the concept of demographic representivity and the fact that their particular group is ‘numerically challenged’) – but who are also suitable candidates to fill the relevant posts – the courts should not shy away from their power to order the appointment or promotion of such claimants by the relevant designated employer. Not only would such an order be just and equitable in the context of the individual claimants upon a finding that what purports to be affirmative action actually constitutes unfair discrimination, it would be an appropriate order in the context of the primacy of efficient service delivery by public sector employers. The courts’ exercise of such power is within the bounds of their role in the constitutional order.[12]
Some parts of the recent and contemporary South African political and social narrative have to a significant extent focused on calling on communities within our society to ‘state-proof’ themselves from the frequent and wide-spread failures of the government. The recent calls by the government of national unity (the “GNU”), and particularly its still most prominent member, the African National Congress, for a hike in the value-added tax (“VAT”) rate, have been accompanied by reiterations of the practical reality of ‘double taxation’.
Those few who can afford it in contemporary South Africa are on a daily basis paying twice for services that should be rendered by the government: They pay their taxes but need to then also pay again because the quid pro quo of those services is so deficient: Private security services to supplement (or replace) what the SAPS should be providing; private medical aids to provide the services state health institutions should be providing; private schools to replace what the Department of Basic Education should be providing. The examples are myriad.
The point here, though, is that those who are most dependent on the state to provide such services are simply unable to pay to fill these gaps. Those are the persons really affected by poor service delivery, and who may have little patience or understanding for public sector policies that hold no potential benefit in their daily lives and really may just be a form of political window-dressing and a completely unnecessary speed bump on the road to self-actualisation, or even just survival.
What I am calling for here in respect of the courts’ role in public sector affirmative action challenges is not an illegitimate interference with a public sector employer’s managerial prerogative.[13] The issue is not one of merely individual justice and the promotion of such claimants’ equality and dignity rights. It involves acknowledgement and appreciation of much broader interests involving persons who are very much not before the court in most if not all such cases.
This is not to say that the courts must dabble in potential violation of the separation of powers by engaging in policy-making. What it does say is that the courts should give effect to their role as custodians of the Constitution who should serve, fundamentally, the interests of the voiceless who cannot afford that double tax, let alone just putting food on the table.
The time has arrived where the necessity of racial (and otherwise) transformation of our public service may frequently need to take a backseat to the dire need of the services which must be provided by that very same sector, as best and as quickly as possible. In the early years post 1994 the transformation imperative was based on the public service achieving legitimacy in the eyes of the masses, after what preceded it had so significantly lacked any semblance of legitimacy because of the wide-spread abuses of a system of racial segregation and of the systemic neglect of the interests of the majority of our people.
After nearly 30 years of racial majority rule and true and radical transformation in respect of political power, but which has been coupled with sub-standard service delivery by the public sector, that boat has long sailed. Legitimacy in terms of demographic representivity was probably achieved two decades ago, already. But actual legitimacy in terms of service delivery from such ‘transformed’ public service eludes us. Let’s get out of the prism of potential politically inspired negative perceptions and roll up our sleeves to deal with the current reality of what South Africans really need.
The courts have a definite and positive role to play in this regard, specifically in cases involving the application of affirmative action in the public sector. I would call on our labour courts to bear this in mind and to show a special degree of judicial fortitude when future cases present in this very particular – and existentially important – context.
Let impact on service delivery and the socio-economic rights of all our people be a specific and fundamental component of the adjudication of individual affirmative action challenges in the public sector context, and in the formulation of remedies.
[Image: Lucas Todeschini on Unsplash]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 4 SA 490 (CC)
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Department of Rural Development & Agrarian Reform; Eastern Cape v General Public Service Sectoral Bargaining Council & Others [2020] 41 ILJ 1321 (LAC)
Eskom Holdings Soc Ltd (Peaking Power Station) v Solidarity obo Erasmus [2025] ZALAC 55
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[1] (2003) 2 BLLR 173 (LC)
[2] Partington J & Van der Walt A “The development of defences in unfair discrimination cases (Part 2)” (2005) 26 Obiter 595 at 603
[3] At par. 31 of the judgment
[4] (1997) 18 ILJ 241 (T) at 307B-D
[5] [2009] ZALC 97
[6] McGregor M “Affirmative action and ‘efficiency’ in the public service” 11(1) JBL (2003) 25 at 31
[7] Coetzer at par. 43. It is interesting to note that in Solidarity obo Erasmus v Eskom Holdings SOC Ltd supra Rabkin-Naicker J, after finding that the employer had unfairly discriminated against the applicant, chose not to order appointment of the claimant to the position in question (at par. 79):
“[T]his Court will not usurp the role of the employer and promote Erasmus. Given that I have found that Erasmus was unfairly discriminated against, I will however grant him compensation in an amount that I find to be just and equitable on the evidence before me.” The court ordered compensation in the amount of 18 months’ salary to be paid to the applicant.
[8] McGregor supra at 33
[9] As Ngang observes:
“Without appropriate checks and balances by the courts, decision making by the political system may seem efficient but may indeed be challenged by serious irregularities. The judicial enforcement of socio-economic rights has in fact demonstrated a potential to balance oscillations in legislations and policies that sometimes inflict adverse consequences on the poor as a result of defective political decision making … [T]hrough political intransigence, the state has in some instances not complied adequately with its socio-economic rights obligations, which has allowed the courts the latitude to require the state to justify its actions or in-action. Such intervention has no doubt created tension on the grounds of the separation of powers which, as indicated, has adversely affected the courts’ jurisprudence, thus creating a potentially limiting effect on the enforcement of socioeconomic rights … Courts are sometimes better placed to protect the socio-economic interests of the poor than the coercive arrogant majority who wield excessive political influence over government. In order to ease the tension created by the question of the separation of powers, the judicial enforcement of socio-economic rights should be seen and acknowledged as a complementary strategy to the political objective of social transformation, rather than as an oppositional force to the proper functioning of government.”
Ngang C “Judicial enforcement of socioeconomic rights in South Africa and the separation of powers objection: The obligation to take ‘other measures’” (2014) 14 African Human Rights Law Journal 655 at 680
[10] Compare Nadesan supra, where Whitcher J found further advertising of a post that had been vacant for more than a year to be irrational (at par. 40):
“On the rationality leg, the accepted evidence was that the Appellant had no pipeline of African female employees at an occupational level from which they could logically be drawn. (I find that this was, in all probability, the profile of employee that the Appellant would have been holding out to appoint if indeed equitable representivity was its goal.) Being aware that no suitable candidates from this under-represented group existed, it would have made no sense to readvertise the post one more time as a means to achieve their equitable representation. If the Appellant had withdrawn the advertisement altogether, the irrationality of its response would not have arisen. Indeed, a rational response to its conundrum was to focus on creating a layer of appointable employees from under-represented groups for work in the Stores section and only then to run another advertisement. To the extent that Nadesan was denied appointment on the basis of the restitutionary measure of a re-advertisement to occur within a year, this was, on the evidence, irrational.”
[11] Minister of Finance v van Heerden at par. 44
[12] As has been observed:
“The judiciary’s role is not to ‘second guess’ the legislative and executive branches of government or interfere in matters that are not their concern. Their task is to give meaning to the Constitution and, where possible, to carry this task in a manner that is not detrimental to effective governance. This role extends to helping those who are constitutionally incapable of helping themselves …” Masumbe PS “The rule of law through judicial activism in South Africa” (2024) Law and World, 10(30) 31, with reference to Executive Council of the Western Cape Legislature and Others v. President of the Republic of South Africa and Others 1995 1995 (4) SA 877 at par. 99
[13] The proper approach to determining substantive fairness in claims of unfair labour practices relating to promotion was explained by the Labour Appeal Court in Department of Rural Development & Agrarian Reform; Eastern Cape v General Public Service Sectoral Bargaining Council & Others [2020] 41 ILJ 1321 (LAC) at par. 23:
“Because there is ordinarily no right to promotion, arbitrators and courts should hesitate before appointing the aggrieved employee to the post. Such deference, however, will be less compelling where the employer has unfairly discriminated against an employee or acted otherwise egregiously. Likewise, the remedy of instatement might be appropriate where it will cause no prejudice to another successful candidate because the post is vacant; or the employee proves that but for the unfair conduct he, or she, would have been appointed.”