- Solidarity brought a review application on behalf of R Burger after SAPS promoted a lower-scoring candidate for equity reasons.
- The Labour Court held that the arbitrator’s decision was reasonable and not reviewable under the Labour Relations Act.
- The court emphasised the role of representivity and “10% principle” in SAPS promotions and dismissed the review.
The Labour Court in Cape Town has dismissed a review application brought by trade union Solidarity on behalf of a white police officer who was not promoted despite scoring highest in the selection process.
The court upheld the decision by the South African Police Service (SAPS) to promote a coloured male candidate instead, citing the organisation’s employment equity objectives.
The judgment, delivered by Acting Judge C de Kock on 9 July 2025, reinforces the legality of using demographic representivity in promotion decisions within the public sector, a principle central to South Africa’s employment equity framework.
The promotion that sparked the dispute
Burger, a member of SAPS’ Forensic Detective Services, had applied for a warrant officer post (Post 4301) in 2020. He scored 73% in the interview, the highest among candidates. However, the promotion went to Warrant Officer Hartzenberg, a coloured male who scored 65%. SAPS defended its decision on employment equity grounds, pointing to the underrepresentation of coloured males and the significant overrepresentation of White males in that division.
Solidarity challenged the decision, arguing that it was arbitrary, biased, and contrary to SAPS' own guidelines, particularly National Instruction 3 of 2015, which they said vested appointment power in the divisional commissioner, not the national commissioner or any “national moderation committee.”
The arbitrator’s decision and the review
At arbitration, Commissioner Clarence Randall dismissed Burger’s claim, finding that SAPS had followed a fair and consistent process and that the deviation from the norm, allowing the national commissioner to influence final appointments, was not irregular. Randall also applied the “10% principle,” used to determine when equity targets may be overridden due to exceptional performance. Since Burger’s margin over Hartzenberg was below 10%, equity goals were given precedence.
Solidarity then approached the Labour Court, asking it to set aside Randall’s award. They argued that the arbitrator ignored evidence, misapplied the law, and allowed SAPS to unfairly bypass standard procedures.
Court: No error in reasoning or outcome
Judge De Kock upheld Randall’s award, confirming that the arbitrator had applied his mind to the evidence and reached a conclusion that was legally and factually defensible. The court reiterated the two-part test for reviewing arbitration awards under Section 145 of the Labour Relations Act: Was there a failure or error by the arbitrator? Secondly, if so, did it render the outcome unreasonable?
In Burger’s case, neither threshold was met. While Solidarity raised concerns about the scoring process and equity application, the court found that they had not presented compelling evidence at arbitration, such as calling panel members or applying to reopen the case when the 10% principle emerged late in proceedings.
Equity guidelines not arbitrary
The court also dismissed the argument that SAPS violated its own guidelines by allowing the national commissioner to influence appointments. It noted that the job advertisement itself included clauses permitting this additional layer of oversight to “ensure equal treatment” across regions.
Judge De Kock concluded that the deviation from NI 3/2015 was consistent with the constitutional imperative for representivity and did not amount to procedural unfairness.
“Burger therefore failed to prove that SAPS acted irrationally, capriciously or arbitrarily,” the judgment states. No costs order was made, in keeping with fairness principles in employment disputes.
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