Van Heerden v Min of Finance. Du Preez v Minister of Justice and Constitutional Development and Others (Equality Court )

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1 Van Heerden v Min of Finance Du Preez v Minister of Justice and Constitutional Development and Others (Equality Court ) [The proceedings were governed by the Equality Act. The Employment Equity Act is not applicable to magistrates in that in terms of the Magistrates Act they are judicial officers, independent of the public service, and subject only to the Constitution. They do not work for the state. They are therefore not employees as defined in the Employment Equity Act.] During May 2002 and June 2003, the The Magistrates Commission invited applications for vacant positions of regional court magistrates in certain specified districts. Minimum requirements were stated in the advertisement.the complainant applied for the positions in Port Elizabeth. He was unsuccessful in even making the shortlist. He thereupon instituted the present proceedings in terms of the Equality Act. Shortlisting was done by the appointments committee.this committee determined the general criteria for shortlisting in respect of each advertised post. They are: experience, qualifications, the provisions of s 174(2) of the Constitution, and the specific needs of the office. Score sheets are used for shortlisting purposes. The committee has adopted a method whereby a specific weight is attached to each of the criteria on the score sheet. Candidates obtaining the highest score are shortlisted. The issue for determination between the parties was whether the criteria for short listing for posts constituted, pursuant to the provisions of section 13(2) of the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000, fair discrimination. The complainant had 19 years experience as a magistrate and held the degrees of BJuris, LLB and Master of Public Administration. He averred that in the shortlisting of candidates, the commission unfairly discriminated against him on the basis of race and gender. He submitted that the criteria used were irrational, unreasonable and unconstitutional as on the basis of the score sheets, it was impossible for a white male to compete successfully against a black woman. He contended that in the result he was the victim of unfair discrimination. The first respondent directed the attention of the court to the public duty vested in the respondent to adhere to the principles of the Constitution, in particular s 174(2) thereof which dictates that the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are being appointed.

2 The Court stated that equality among all our people lies at the heart of the Constitution. Section 1 thereof propounds the values upon which the Republic of South Africa is founded: (a) Human dignity, the achievement of equality and advancement of human rights and freedoms. 2. Non-racialism and non-sexism. 3. Supremacy of the constitution and the rule of law. Chapter 2 of the Constitution contains the Bill of Rights, which is stated to be a cornerstone of democracy in South Africa which enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. In this broad normative context, equality is guaranteed in the Bill of Rights (section 9) in the following specific terms: 9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (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. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. The central provision of the Equality Act is s 6 thereof which declares unequivocally: Neither the State nor any person may unfairly discriminate against any person. There is manifest concordance in wording between this section and s 9(3) of the Constitution: both provisions unequivocally proscribe unfair discrimination in any form. Section 14 (1) of the Act provides as follows: It is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination or the members of such groups or categories of persons. This provision can be seen as the culmination of the strong affirmative action thrust of the Equality Act. On the face thereof, the provision by declaring that affirmative action is not unfair discrimination would appear to place such measures beyond the purview of the Act, irrespective of their content and effect on others. Although affirmative action measures do not necessarily disadvantage any other persons, inevitably some measures will have that effect - such as when one person is preferred over another on the basis of race or gender in the appointment to a position for which both had applied. To escape constitutional invalidity such measures must come within the protection afforded affirmative action by s 9(2) of the Constitution.

3 An interpretation of s 9(2) of the Constitution that sees its implicit approval of affirmative action measures as excluding or negating the right to equality, will therefore offend constitutional principle. Rather, affirmative action measures must be seen as essential and integral to the goal of equality; and not as limitations of or exceptions to the equality rights. [Compare Van Heerden] Certainly, tension can and does arise between constitutional values. This often presents the courts with difficult constitutional questions - in practice much of constitutional law is concerned with such issues, as is the case in the present matter. Those issues must be resolved within the context of the tension existing between the countervailing constitutional principles, with due regard to the values that support those principles. This exercise requires a value judgment. Both s 9 of the Constitution and s 14(1) of the Act recognize and by clear implication encourage measures designed to protect and advance categories of persons disadvantaged by unfair discrimination. In its context here, the phrase designed to must be interpreted as meaning likely to. Such construction of the phrase designed to advance in both s 9 and s 14(1), above, compels the court to give due weight to the fact that it was persons of categories previously disadvantaged by non-representivity on the bench that were advantaged over a category of persons previously favoured in such appointments. Section 13 of the Equality Act, read with the definitions in s 1 thereof, provides that if the complainant makes out a prima facie case of discrimination, not disproven by the respondent, then if the discrimination took place on the prohibited grounds of race or gender, it is unfair, unless the respondent proves that it was fair. The considerations that must be taken into account in determining whether the respondent has discharged that onus of proof, are set out in s 14(2) and (3) of the Act: (2) In determining whether the respondent has proved that the discrimination is fair, the following must be taken into account: (a) the context; (b) the factors referred to in subsection (3); (c) whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned. (3) The factors referred to in subsection (2)(b) include the following: (a) whether the discrimination impairs or is likely to impair human dignity; (b) the impact or likely impact of the discrimination on the complainant; (c) the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage; (d) the nature and extent of the discrimination; (e) whether the discrimination is systemic in nature; (f) whether the discrimination has a legitimate purpose;

4 (g) whether and to what extent the discrimination achieves its purpose; (h) whether there are less restrictive and less disadvantageous means to achieve the purpose; (i) whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to (i) address the disadvantage which arises from or is related to one or more of the prohibited grounds; or (ii) accommodate diversity. These listed considerations in section 14 do not supplant the test for the constitutionality of an affirmative action measure outlined above, but give substance to that test. As the first step in the s 13 procedure, the complainant must make out a prima facie case of discrimination. Clearly the shortlisting criteria applied by the committee amounted to discrimination by the respondents against the complainant. Accordingly, in terms of s 13 of the Act, the measure is unfair unless the respondents prove that it was fair. The respondents justify the discrimination in the shortlisting process on the grounds that the Constitution enjoins them to have regard to the racial and gender composition of South Africa when judicial officers are being appointed. There is a need for such a policy. It is generally accepted that for the judiciary to achieve credibility in the eyes of the public, it must be diversified. Transformation of the bench will, in addition, have the effect of promoting restorative affirmative action. It is clear from the affidavit of the commission s chief personnel officer48 that there was a real need for the racial and gender diversification of the Port Elizabeth regional court bench. The question that arises is whether the discrimination against the complainant applied by the appointments committee in pursuit of that goal, was unfair. The shortlist was so constructed that white males with maximum points would score the same as black males and white females with minimum points; white males with only an LLB degree (presumably the majority of the prospective candidates) would automatically be outscored by all other categories of candidates; black males and white females with maximum points would score the same as black females with minimum points; 4. black women with the minimum points would outscore all other categories of candidates with only an LLB degree. It is relevant that the complainant, as a white male, does not belong to a group that suffered past patterns of disadvantage. It is inevitable that affirmative action will in some instances operate to the disadvantage of such persons. That consequence would no doubt have been within the contemplation of the drafters of the Constitution when they framed the affirmative action clause contained in s 9(2).

5 This did not however place affirmative action measures beyond judicial scrutiny. Persons adversely affected by such action are not without protection under the Constitution. It is the complainant s contention that in the case of Port Elizabeth, the application of the shortlisting formula in effect negated experience where a white male was in competition with other categories of candidates. In a broad sweep, it can be said that persons belonging to the category of the complainant gained experience in the past at the expense of categories of persons disadvantaged on the basis of race and gender. To overemphasize experience, or even to apply it as a rigid comparative criteria, would then be to perpetuate past discrimination. Such discrimination has had ongoing negative consequences in relation to the racial and gender composition of the courts, including the Port Elizabeth regional courts. Unless remedied those consequences may continue for a substantial time, even indefinitely. These are cogent considerations operating in favour of the remedial discrimination inherent in the shortlisting procedure. The court must nevertheless ask itself whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned.in the present situation, such a criterion is experience. Regional court magistrates bear a heavy workload and endure a great deal of stress in their unremitting and onerous task of presiding daily in trials. Their task demands insight and maturity. There is here no substitute for experience. Furthermore, only suitable experience will indicate whether a person has the capacity to cope with the work and the necessary qualities of character and personality to persevere in the post day in and day out over years. Appointing candidates who have insufficient legal experience will subject those persons to considerable stress, which could detract from their performance. They could find it difficult to stay the course. The regional court bench has an important position in the administration of justice. It is of cardinal importance that public confidence in the criminal justice system be fostered and maintained by appointment to regional courts of suitably qualified and sufficiently experienced persons. As a result of the way that the points were allocated under the various heads, at no stage was the complainant s experience as district court magistrate of any consequence in the selection process. Clearly, no equitable assessment of the merits of the complainant s application was possible without proper consideration of his previous experience as against that of his competitors for the posts. Experience was however not the only relevant consideration negated in the shortlisting procedure. By basing selection solely on the shortlisting scores, the committee failed to have regard to the candidates profiles and curricula vitae, which according to the commission s secretary were to serve as guidelines for the shortlisting and interviewing of candidates.63 The committee, moreover, took no account of certain, important, criteria that were to be used by the commission in the final selection candidates, mentioned by the secretary of the commission,these were: legal knowledge, leadership and management skills, language proficiency, communication capability, vision, potential, commitment to transformation and development, integrity,

6 social context, sensitivity and interpersonal relationship. The narrow shortlisting formula, by ignoring these criteria, was not geared to identify the candidates best suited for final selection by the commission. The first stage in the selection process was therefore inconsistent with the second stage of the procedure. This not only prejudiced such candidates, but also was not in the interests of society which requires that the regional courts function at the highest achievable level of efficiency. There is patent disproportionality in a selection policy based on race and gender to the absolute exclusion of all the other qualities required for a position as responsible and important as that of regional magistrate. Such a policy is irrational within its own terms and objectives. The Court pointed out that the Equality Act and EEA complement each other and are sufficiently close for authority on the one to be of assistance in the interpretation and application of the other, especially in the present case which contains elements of employment. Both were enacted in compliance with section 9(4) of the Constitution. The Court then said that it is the essence of the complainant s case that he was unfairly discriminated against in that the shortlisting criteria constituted for him an absolute barrier to being considered on merit for the posts: The concept of an absolute barrier based on race or gender has received the attention of the labour courts and of legal writers in the sphere of employment law. Section 15 of the Employment Equity Act provides in relation to (a)ffirmative action measures, in ss (3) thereof, that such measures include preferential treatment but exclude quotas; and, in ss (4), that nothing in this section requires a designated employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups. While the act, by these provisions, does not prohibit such measures outright, it absolves employers from imposing absolute barriers against non-favoured groups. In a case before the Labour Court, it was found that a particular measure implemented by the South African Police Service constituted such a barrier in that it presented white male members of the force with an insurmountable obstacle to promotion; as such it constituted an absolute barrier. The measure therefore offended the employment equity plan of the SAPS which stated that no employment policy or practice will be established as an absolute barrier to prospective or continued employment or advancement of persons not from designated groups. Pretorius, Klinck and Ngwena describe as the most drastic form of preferential treatment those employment policies or programmes which afford absolute preference to members of designated groups who meet the minimum job requirements. The effect of such an approach is, they say, that selection is done irrespective of how the preferred designated group candidate compares with competitors from non-designated groups and sometimes irrespective of how the decision affects the excluded nondesignated group members personally, as well as the specific operational needs of the employer or the special requirements of the job. The learned authors express the view that such measures would not be compatible with the variety of factors that need to be taken into account for an employment decision to meet the constitutional requirements of fairness and proportionality. Fairness, as they put it, depends on the cumulative effect

7 of all relevant concerns, including the extent of the impact of the measure on the rights and interests of the complainant. Proportionality, they say, requires, by definition, the balance of competing interests. Affording automatic preferences for designated group members eliminates the possibility of affirmative action from being tested in respect of its fairness and proportionality and elevates the affirmative action objective to the position of sole requirement for validity. The effect of the committee s shortlisting formula was to raise an insurmountable obstacle for the complainant. It was therefore an absolute barrier to his appointment to the post of regional magistrate, Port Elizabeth. The formula effectively gave automatic and absolute preference to black female applicants who met the minimum job requirements, irrespective of how they compared to the complainant, or for that matter to black male and white female applicants. No regard was had to how the formula affected such other applicants, nor did it have effective regard to the specific needs of the posts, beyond the minimum qualifications for the positions. The inflexible modus operandi of the committee comes foursquare within the situation of absolute inclusion of designated group members to the absolute exclusion of non-designated group members described by Pretorius et al, above. It is therefore subject to the valid criticism levelled at such measures by the learned authors. The effect of the formula was to frustrate the complainant s ambition for advancement in his chosen career, with denial to him of the concomitant benefits of heightened prestige and increased income. The discrimination was therefore serious in its nature and extent. And the more detrimental the nature of the discrimination upon the interest of the affected party, the more likely it is to be unfair. In as much as the discrimination was built into a departmental policy, it was systemic in nature. I find, for the above reasons, that the respondents have failed to prove that the discrimination perpetrated against the complainant, was fair. Public Servants Association of South Africa and Another v Minister of Justice and Others First Respondent s department made a decision to earmark certain vacant posts as affirmative action posts. 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

8 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 the PSA 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 out that section 212(2)(b) of the Interim Constitution.{195(1)(i) FC} 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. They argued that 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) 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) of the Interim Constitution. 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 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. 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. The Court stated that 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

9 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 measures have to be suitable not only as far as the targeted persons or groups are concerned, but also as far as other affected persons or society is concerned, in the sense, at least, that they do not go further than is required. It would be unsuitable for both targeted persons, other persons such as in the position of the applicants and of society at large if civil service posts, particularly at the top level, are earmarked for black or other preferences without due regard to the Constitution s requirement of an efficient public administration. That would not only create a burden upon society but would be unfair to other applicants who are better qualified to constitute an efficient administration.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. STOMAN v MINISTER OF SAFETY & SECURITY & OTHERS A black policeman was appointed to a post in the SA Police Service instead of the applicant employee, a white policeman. The employee applied for an order setting aside the decision. It appeared that the employee had been included in the shortlist for the post and that he had achieved the highest percentage mark of all the candidates, including the fourth respondent. The respondents' attitude was that the relief applied for should not be granted because they were obliged to give effect to the SAPS's employment equity plan. in terms of which they had been obliged to give effect to the ideals of representativity and affirmative action in deciding whom to appoint, and that this was why the fourth respondent had been appointed. The applicant's case was that he had been unfairly discriminated against contrary to the provisions of s 9(3) of the Constitution. He argued that he had been the most suitable candidate for the post and that the fourth respondent had been appointed merely because he had been the most suitable of the black applicants. The Court held that s 9(2) of the Constitution made provision for 'legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination'. Legislation passed since the adoption of the Constitution also recognized such measures, often under the banner of 'affirmative action measures'. The Court held further that the important question was whether an alleged affirmative action policy or practice was justifiable and acceptable within the context and wording of the Constitution. In the context of s 9(2) the measure in question had to promote the achievement of equality. A policy or practice which was haphazard, random or overhasty

10 could not be described as measures 'designed' to achieve anything. There had to be a rational connection between the measures and the aim they were designed to achieve. The Court mentioned that the appointment of wholly unqualified or less than suitably qualified or incapable people in responsible positions will not be rational and could never be justified. The Court reasoned that considerations other than the highest percentage point are also relevant. The SAPS has an official policy regarding representativity and affirmative action. When the national commissioner, who is responsible for final appointments, had a look at recommendations, he indicated that recommendations should be reconsidered, in view of the guidelines regarding representativity and affirmative action. The end result was that the fourth respondent was appointed, because he is the most suitable black candidate and he has the necessary qualifications and experience for the position. With regard to efficiency the Court disagrees with PSA v Min of Justice to the extent that it had been stated that equality or affirmative action measures should play a role only where candidates otherwise have the same qualifications and merits. The Court said that the requirement of representativity is often linked to the ideal of efficiency and they are often interdependent. A police service, for example, could hardly be efficient if its composition is not at all representative of the population or community it is supposed to serve. Some tension may in certain situations exist between ideals such as efficiency and representativity, and a balance then has to be stuck. The Court held that the applicant did not produce any evidence indicating that the relevant policies and guidelines in force in the SAPS did not comply with the constitutional requirements of s 9(2). These measures were, on the evidence, bona fide designed to contribute to the promotion of equality in general and specifically to the protection and advancement of persons or categories of persons previously disadvantaged by unfair discrimination. As to the applicant's argument that there was no proof that the fourth respondent as an individual was indeed a person previously disadvantaged by unfair discrimination, the court held emphasis was on the group or category of persons to which the particular individual happened to belong, and not on the individual. The aim in the instant case had not been to reward the fourth respondent as individual, but to advance the category of persons to which he belonged and to achieve substantive equality in the police service as an important component of South African society. SOLIDARITY obo BARNARD v SAPS The applicant employee, a white woman, commenced service with the SAPS as a constable in She was promoted to the rank of captain in After serving at that rank as a branch commander for several years, the employee was transferred to the

11 national inspectorate on the same rank. In 2005, a new post of superintendent was created in the inspectorate, and was approved by the divisional commissioner as a nondesignated post. Having interviewed the employee for the post, the selection panel recommended her for appointment because her score was 17, 5% higher than the highest rated black candidate and because, in the panel s view, the employee s appointment would enhance service delivery. The divisional commissioner decided that no appointment should be made because appointing the employee or the second or third rated (white) candidates would not enhance the ratio of black employees in the inspectorate. The post was withdrawn, but three months later a white male officer was transferred temporarily to the inspectorate. The following year, the superintendent s post was advertised again. The employee was interviewed, and the selection panel recommended again that she be appointed because she obtained the highest score once again, which was between 7% and 11% higher than those of the two black candidates rated, respectively, second and third. This time, the divisional commissioner supported the employee s appointment. He also informed the National Commissioner that the representation of black officers would not be aggravated by the employee s appointment because she was already in the inspectorate and that to overlook the employee again would send her the wrong message. Soon after issuing a circular reminding selection panels to focus on service delivery when recommending appointments, the National Commissioner rejected the divisional commissioner s recommendation on the grounds that it would not address representivity and that the post was non-critical. The National Commissioner ordered the post to be re-advertised. The employee filed a grievance. She was ultimately informed again that her appointment would not address representivity and that the post was not critical. The employee then referred a dispute to the CCMA. The SAPS failed to attend the conciliation meeting. The applicant union sought orders declaring that the employee was the victim of unfair discrimination, and directing the SAPS to appoint the employee to the rank or superintendent. The Court held that the provisions of the Employment Equity Act and of the SAPS equity plan must be applied fairly and with due regard to affected employees constitutional right to equality and dignity. The extent to which equity plans may discriminate against employees is limited by law. The EEA requires its provisions to be applied rationally and fairly, and the rights of affected employees must be recognised. [The court stated the relevant provisions including section 15: affirmative action measures ] To simply apply numerical goals is too rigid. Where a post cannot be filled by an applicant from an under-represented group because a suitable candidate from that group cannot be found, promotion of a person from another group should not be denied without a clear and satisfactory explanation. There must be a rational connection between the provisions of an equity plan and the measures adopted to implement the plan, and due regard must be paid to the efficient operation of the public service.

12 Failure to appoint any employee when suitable black candidates were available was not a fair and rational way to implement the SAPS equity plan. Given the sparse information before the Court relating to the National Commissioner s decision, it could only be assumed that he did not regard the black candidates as suitable. The Court found that the SAPS had failed to discharge the onus of proving that the discrimination to which the employee was subjected was fair or rational. Furthermore, there was no evidence to prove that the employee s right to equality or her work history had been considered. The Court noted further that the applicant had led direct evidence that service delivery was adversely affected by the decision not to promote the employee. While not decisive, considerations of efficiency lent weight to the conclusion that there was no rational connection between the decision reached by the commissioner and the overall objects of the equity plan. The Court directed the SAPS to promote the employee to the rank of superintendent INDEPENDENT MUNICIPAL & ALLIED WORKERS UNION v GREATER LOUIS TRICHARDT TRANSITIONAL LOCAL COUNCIL The respondent local council advertised a post of town treasurer, found no suitable candidate and readvertised the post. The candidates were subjected to an internal test and the executive committee placed a short list of three candidates before the full council for a decision. Two candidates were white males the other a black male. The council, by a majority decision, decided to apply affirmative action and offered the post to Mr Masengana. The Independent Municipal & Allied Workers Union was unhappy with the decision and sought to review the appointment in the Labour Court. The court concluded that for affirmative action to survive judicial scrutiny there must be a policy or programme through which affirmative action is to be effected and the policy or programme must be designed to achieve the adequate advancement or protection of certain categories of persons or groups of persons disadvantaged by unfair discrimination. The word ''designed' suggests that more than mere intention is required, though not necessarily that the measures should be likely to achieve their purpose. Section 9(2) of the Constitution must be read as permitting only those corrective measures which do not unduly prejudice the individuals or groups who are disadvantaged as a result.' In the court's view there are good reasons for these requirements. These requirements ensure that there is accountability and transparency. They ensure that there is a measure or standard against which the implementation of affirmative action is measured or tested. They ensure that no arbitrary or unfair practices occur under the

13 guise of affirmative action. They also ensure full knowledge and participation in the establishment and implementation of the programme. The court found that employers' organizations and unions in local government had agreed in writing to formulate a clearly detailed, specific and feasible affirmative action programme and to implement it and monitor it to redress imbalances and discrimination. Local authorities and their employees would have the right to determine their own affirmative action goals and time tables and other processes. The Greater Louis Trichardt Transitional Local Council adopted this agreement but had not yet carried out nor implemented the agreement. The court considered that the council could not even begin to consider affirmative action in making appointments before it had complied with the agreement. It followed that the appointment of Mr Masengana could not be justified on affirmative action grounds.