Fin24

Equity plan changed by wrong person

2012-11-08 16:04

Johannesburg - The police's employment equity plan was unilaterally changed and by the wrong individual, the Johannesburg Labour Court heard on Thursday.

"There was a plan and it was changed unilaterally... and the change led to unfair discrimination of my client," said lawyer Corne Goosen.

He was representing the trade union Solidarity in its challenge to the police's refusal to promote Lt-Col Bernard van der Westhuizen on the grounds of gender.

Goosen referred to an instruction issued in 2009 by the then national police commissioner Bheki Cele.

In October that year, the SA Police Service head office issued a letter to all its departments instructing them to review all promotions from level eight upwards, to achieve gender equality.

Van der Westhuizen had been employed since 1988, and worked in the police's information and systems management division.

On June 26, 2009, eight positions in this unit were advertised. Van der Westhuizen applied for the post of system manager of business intelligence.

Interviews were held in August 2009 and he was recommended as the only suitable candidate for appointment.

That October, the instruction was issued by Cele following a meeting with his deputies.

Goosen argued that Cele exercised the authority above Constitutional principle, and that it was not his job to do so.

According to the Constitution, the minister of safety and security was responsible for the employment equity plan, and the national commissioner for executing it, said Goosen.

"The final say doesn't rest with the national commissioner... it lies with the minister of safety and security.... This amounts to an unfair act."

After Cele issued the instruction, the panel responsible for filling posts met to review its recommendations in light of the new instruction.

In November 2009, the recommendation to appoint Van der Westhuizen was rejected, and an instruction was given to re-advertise the post.

The court heard that the initial police ratio plan - for the job level Van der Westhuizen was on - was 70% male and 30% female representation. This was then changed on Cele's instruction.

Solidarity said 69 other posts were also withdrawn and re-advertised because of the affirmative action policy.

Lawyer for the SAPS, Nazeer Cassim, admitted to the court there was discrimination against Van Der Westhuizen.

"Yes, it is discrimination but it is justified as the employment equity act seeks to address [other] discriminations," Cassim said.

"Yes, he did not get the job because of the equity plan and not any other reason."

Van Der Westhuizen's case was repeatedly compared in court to a similar case involving Captain Renate Barnard. In 2005, Barnard applied for a Lt-Col position in the National Evaluation Service. She was shortlisted and interviewed with six other candidates, and it was found that she was the best candidate. Despite this, no one was appointed to the post.

A year later, Barnard applied for the same position with two black candidates. She was recommended as the most suitable candidate, but former police commissioner Jackie Selebi vetoed the decision.

Barnard then went to the Labour Court and won. The court ruled that the failure to appoint Barnard compromised service delivery.

The police appealed against the decision and the Labour Appeals Court ruled that the purpose of employment equity was misunderstood and that white women were over-represented at the job level to which Barnard sought promotion.

Barnard planned to take the matter to the Supreme Court of Appeal, said Solidarity. No court date had been set yet.

At court, Goosen pointed out differences between Van der Westhuizen's case and Barnard's case. He said there were constitutional issues in Barnard's case that were not investigated, and this was problematic.

Both cases might be taken to the Constitutional Court, he said.

Van der Westhuizen's case was postponed pending a ruling in the Barnard case.

Comments
  • konstabel.koekemoer - 2012-11-08 16:35

    We have just replaced one racist regime government with another. What makes it worse though is that the new racist government is totally riddled with incompetence and corruption. And it is the corrupt and useless elements in government that want to keep all the racism alive ... that way they can keep stealing from citizens and blame all their non-delivery on apartheid. SA will not flourish until the all racist legislation is abolished. We don't need black empowerment, we need empowerment of the poor, so programs must focus on making poor South Africans become self-sufficient through job creation and helping people to start their own business.

  • george.larkins.14 - 2012-11-08 16:38

    Discriminating against WHITES.When will it stop?????? Can we not at this stage,18 years later,employ the best candidate for a position.Away with BEE and AA.If you not up to standard at this stage you will never be.

      vaughan.lund - 2012-11-08 17:48

      Well the new BEE rules are so draconian and unemplementable you wonder where it will all end. Including if as part of your BEE requirements you help foster a new black owned organization and that black organization fails, you can go to prison for up to 10 years for "fronting". It's become so costly to implement you wonder if it's worth even attempting.

      aristar.aristary - 2012-11-13 08:12

      A doctor from Israel says: "In Israel our medicine is so advanced, we cut off a man's testicles, put them into another man and in 6 weeks he's looking for work." The German doctor comments: "That's nothing, in Germany we take part of the brain from a person, put it into another person's head and in 4 weeks he's looking for work." A Russian doctor says: "That's nothing either. In Russia we take out half of the heart from a person, put it into another person's chest and in 2 weeks he's looking for work." The S.A. doctor answers immediately: "That's nothing my colleagues, you are way behind us. In South Africa, about a year ago, we grabbed a person with no brains, no heart and no balls. We made him President of South Africa and now - the entire country is looking for work!!"

  • george.larkins.14 - 2012-11-08 16:43

    Jackie Selebi and Bheki Celes track record speaks for themselves.How can corrupt people like them make such important decisions.The same go for the Goverment.CORRUPT!!!!!!!!!!!!

  • henk.tredoux.7 - 2012-11-08 17:15

    It leaves me cold to think my learned friend Cassim, argues that "yes it's discrimination" because it must "address other discriminations" It sounds like the pot calling the kettle black! A$$hole!

      aristar.aristary - 2012-11-13 08:19

      All they want is the whites to remove themselves from the workforce. Which is exactly what I have done. I will draw unemployment for 6 months, then maybe I will sit on the side of the road and pick my nose and get a suntan. Maybe I will go and squat on that land in Lenasia where all the houses were pulled down. Maybe I will just start my own business selling other people's garbage at flea markets. I am a member of the human race - a fact of which I am frequently ashamed.

  • Montagnes.Bleues - 2012-11-08 18:24

    Even the ministers just wipe the Constitution as if it is toilet tissue! Sometimes to clear the hot butter drooling from their jowls as well. ANC is RACIST.(in policy, legislatively and in morals and ethics) AA is detrimental to the nation and does NOT achieve the desired result with satisfactory accomplishment or productivity - quite the reverse.

  • Blixum - 2012-11-09 09:37

    If ever there has been a case for moving the goal posts around, this is it.

  • aristar.aristary - 2012-11-13 08:12

    A doctor from Israel says: "In Israel our medicine is so advanced, we cut off a man's testicles, put them into another man and in 6 weeks he's looking for work." The German doctor comments: "That's nothing, in Germany we take part of the brain from a person, put it into another person's head and in 4 weeks he's looking for work." A Russian doctor says: "That's nothing either. In Russia we take out half of the heart from a person, put it into another person's chest and in 2 weeks he's looking for work." The S.A. doctor answers immediately: "That's nothing my colleagues, you are way behind us. In South Africa, about a year ago, we grabbed a person with no brains, no heart and no balls. We made him President of South Africa and now - the entire country is looking for work!!"

  • aristar.aristary - 2012-11-13 08:20

    All they want is the whites to remove themselves from the workforce. Which is exactly what I have done. I will draw unemployment for 6 months, then maybe I will sit on the side of the road and pick my nose and get a suntan. Maybe I will go and squat on that land in Lenasia where all the houses were pulled down. Maybe I will just start my own business selling other people's garbage at flea markets. I am a member of the human race - a fact of which I am frequently ashamed.

  • winifred.watson.9 - 2013-03-04 07:07

    Well their racism policies are now coming back to haunt them, South Africa has been on the international news a lot for the wrong reasons. What do people overseas thing of us. Corrupt President, corrupt government ministers stealing from the poor, bad policing, brutal murders and rapes, government minister slandering the afrikaners, striking everyday which ends up in violence. Strikers and protestors wielding dangerous weapons threatening their employers. Government enterprises SAA and ESKOM cant manage funds from one month to the next. Education, the gutter type of 30% pass hence these students are now unemployable because of this. Text books not be delivered on time. What we do see if swanky ministers been driven around in expensive cars by followed by body guards, all bling to match, a President who takes R250 million for his own Empire and a little tuck shop for just one of his wives, we have'nt found out yet what the others got. All this while the poor are given, correction, made to pay for the free houses etc. All this because of why.......out with the rainbow just keep to one colour, those at the top grow richer from the poor, and the poor will continue to get poorer but will still vote for them. As the the rest of the people south african...they can go to hell. Well all this is now coming back to bite them, they are shooting themselves in the foot everyday. From proudly south african we have become ashamedly south african.

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