Equity overturns compensation

EMPLOYMENT equity measures are necessary to address the inequalities of the past. This was the upshot of a ruling by three Labour Appeal Court judges who overturned a compensation award in a case brought by a KwaZulu-Natal police officer who claimed he was overlooked for a promotion because of his race.

The Mercury reported on the case in 2013 when Captain M Munsamy was awarded R333 421 in compensation for not being promoted to the rank of superintendent because of his race.

The police took the matter on appeal and the appeal court found that while the equity targets for the police in KwaZuluNatal had not been fully compiled with, the organisation did have an equity plan in place.

Judge Dennis Davis, with two other judges concurring, said: “Africans throughout South Africa’s racist history suffered the most sustained forms of discrimination.

“At all applicable levels of the police organisation, Africans were hopelessly underrepresented.

“The equity plan sought to ensure restitution took place in order for a broadly non-racial police force to emerge in KwaZulu-Natal.”

The court also said it was not disputed that Indian males were over-represented at the superintendent level in the province.

Munsamy had applied for three superintendent posts in 2000 and was recommended for one post, but was not appointed, and Captain V Zakwe was appointed instead.

Munsamy had argued the police had no equity plan at the time of the promotion and that numerical goals in terms of what percentage of officers per race should be promoted were “calculated guesses”.

Experience

He said he should not have been overlooked simply because of his race, because he had more than 25 years’ service at the time he applied for promotion, and he had performed important functions relevant to the post, including inspecting police stations.

He also said he should not be forced to relocate anywhere else in order to obtain a promotion as he was born and bred in KwaZulu-Natal.

He added that a move outside the province would necessitate his leaving his home and extended family and having to incur the expense of accommodation in another province.

The court said Munsamy had been the second choice for the promotion after it had been discovered that the preferred candidate had pending criminal charges.

The provincial panel, which dealt with the promotion, took a decision to promote Zakwe instead of Munsamy because of a letter from a divisional commander to the then provincial commissioner.

The letter said “the representivity level of black males, black females and white females in the province can be improved”.

Judge Davis said Zakwe was promoted instead of Munsamy to satisfy equity requirements.

He said there was a slight difference in terms of interview scores between Zakwe and Munsamy and there had been undisputed evidence Zakwe had the relevant experience for the job.

“There may be difficult cases where competing claims between designated groups will vex a court with great anxiety; in this case the difference in scores was insignificant.

“It was not disputed that Captain Zakwe had the necessary ability to perform in the post with distinction.”