Blow for affirmative action
2009-08-19 09:28
Johannesburg - The way in which affirmative action is applied in the civil service has been dealt a blow in the labour court.
In a recent court settlement, four police officers who were denied promotion five years ago were vindicated on all the points of their complaint, with retroactive effect.
The South African Police Service (SAPS) hastily and surprisingly offered a settlement, therefore preventing a legal argument from developing regarding critical aspects of affirmative action.
The matter of the four officials was the most important test case regarding affirmative action in the civil service to date.
The legal proceedings had been instituted by four forensic scientists and on Monday the case was settled by granting all the requests they asked for back in November 2004: immediate promotion, which was formerly refused due to the colour of their skin, as well as full compensation with retroactive effect, as if they had indeed been promoted at that time.
Posts left vacant
In this case the SAPS had decided to leave key positions vacant rather than appointing white candidates.
The white applicants were fully qualified - with formal training and years of experience - for these highly skilled posts.
The practice of leaving posts vacant when no suitable candidates of colour could be found was apparently a common practice - not only in the SAPS, but also across the civil service, said two independent civil service unions on Tuesday.
Solidarity handled the case on behalf of the four forensic scientists - inspectors Lionel de Jager, Corlett van Ham, Hannes Geustyn and H Ueckermann. A confidentiality clause in the settlement effectively silenced the union as well as the four officials.
"We can't say anything about the case apart from that we're satisfied," said Dirk Hermann, deputy head of Solidarity, on Tuesday.
AA 'must achieve something'
A written legal opinion was requested from Advocate John Grogan SC, one of the country's top labour law practitioners for the case, which stated that affirmative action "must achieve something, preferably something that would protect or help those who were previously disadvantaged".
"How can it be claimed that any previously disadvantaged candidate is helped or protected by leaving a post vacant?" asked Grogan.
The SAPS suspended the services of a government attorney and appointed attorneys from Bowman Gilfillan, one of the country's largest legal firms, for this case.
A settlement was recently reached and on Monday it was made an order of the court. It is now a public document.
De Jager and Van Ham are both chemical analysts at the SAPS's forensic laboratory in Pretoria, with postgraduate qualifications in chemistry as well as 12 and seven years of experience respectively.
Emigrated
In September last year they were promoted from inspectors to captains anyway, but will now receive the compensation with retroactive effect, as if they had already been promoted to captains in December 2004, when they were refused promotion due to the colour of their skin.
Geustyn, a forensic investigator, will immediately be promoted to captain and will also receive full compensation with retroactive effect.
Ueckermann, a mineralogist with an M.Sc degree in chemistry and twelve years of experience in physical and chemical analysis, has emigrated due to career restrictions.
Neal Truter, deputy president of the South African Police Union, on Tuesday said his union was currently involved in various disputes where the promotion of white police members was refused because no candidates of colour could be found.