Helicopter hero Tinus Gous' family ask for justice in affirmative action case – Solidarity says the legal battle for his rights will continue …
The battle for justice for Tinus Gouws, one of the police-heroes who recently died in a tragic helicopter accident, will continue posthumously in the Labour Court in Johannesburg from November 18 2010.
The court is being approached to compel the South African Police Service to finalise the pre-trial minutes in the cases of Gouws (details below) and seven other police members. This would place the cases on the court roll. Warrant Officer Tinus Gouws, a Pretoria SAPS Air Wing pilot, was amongst the seven men killed in a helicopter crash in July 2010.
The SAPS consistently denied the Afrikaner officer – with 20 years experience – promotion to Captain because he was ‘white’.
Nearly four months after Gouws and six other police members were killed in a tragic helicopter accident and the national police chief, General Bheki Cele, made public promises about “protecting the families of the deceased”, the “SAPS is trying to prevent justice from prevailing”, says spokesmen from trade union Solidarity, following the request by the state prosecutor in the affirmative action cases being handled by Solidarity on behalf of Gouws and seven other polices members that Gouws' case be withdrawn.
Solidarity is currently handling eight cases regarding the implementation of affirmative action in the SAPS.
“These cases have been consolidated in two groups: the implementation of affirmative action as is relates to the promotion of employees, and the implementation of affirmative action as it relates to the reappointment of former police members.
Gouws, who had been employed by the SAPS for over 20 years, was not promoted from inspector to captain due to the implementation of affirmative action, even though he was the best candidate for promotion, said Solidarity.
However, Solidarity and Gouws' family have reiterated that Gouws' case will continue posthumously. “The legal battle will continue in the Labour Court in Johannesburg. Solidarity approached the court to compel the SAPS to sign the pre-trial minutes. The trade union has been trying for over a year to finalise the minutes and several drafts have already been presented. "Until the minutes have been signed by both parties, the cases cannot be placed on the roll," explained deputy general secretary of Solidarity, Dirk Hermann.
"We get the impression that the state will do everything in its power to frustrate the legal processes. Even if justice could not be done for Gouws, it must still be done for his family," Hermann explained.
Hermann says a victory in the affirmative action case will have definite benefits for Gouws' family. "If the court ultimately decides that the implementation of affirmative action was unfair, a request can be made for compensation to be paid to Gouws' estate for the period in which he was not promoted. In addition, the promotion will result in an improvement in the pension payout to Gouws' family." Hermann is positive that Solidarity will achieve success in the affirmative action cases. "The trade union has already won three similar cases and these eight cases are based on the same principles," Hermann said. In the latest victory, the Department of Correctional Services last week conceded that errors had been made in the application for the promotion of Solidarity member Herman Denysschen and it was decided to promote him retrospectively. Statement issued by Dirk Hermann, Deputy general secretary: Solidarity, November 16 2010
Statement of claim by Tinus Gouws, as served on the Minister of Police, SAPS and Bheki Cele October 29 2009
IN THE LABOUR COURT OF SOUTH AFRICA (HELD AT JOHANNESBURG)
CASE NO.: JS1060/09
In the matter between
SOLIDARITY OBO TINUS GOUWS - Applicant
S A POLICE SERVICE - First Respondent
THE MINISTER OF SAFETY & SECURITY N.O. - Second Respondent
THE NATIONAL COMMISSIONER OF THE SA POLICE SERVICE N.O. - Third Respondent
APPLICANTS' STATEMENT OF CLAIM IN TERMS
OF RULE 6 OF THE RULES OF THE LABOUR COURT
Details of the parties
3.1 The Applicant is Solidarity, a trade union duly registered in terms of the Labour Relations Act No 66 of 1995 (hereinafter referred to as "the Act") with principal office situated at c/o DF Malan Avenue and Eendracht Street, Kloofsig, Pretoria.
3.2 In launching this application Solidarity acts on behalf of Mr. Tinus Gouws, a paid - up member of Solidarity, in terms of section 200 of the Labour Relations Act.
3.3 The First Respondent is the South African Police Service established in terms of the South African Police Service Act, an employer as defined in the Labour Relations Act 66 of 1995, Pretoria and headed by the Minister of Safety and Security...
3.4 The Second Respondent is the Minister of Safety and Security E.N Mthetwa, cited in his official capacity and represented by the offices of the State Attorney ...
3.5 The Third Respondent is the National Commissioner of the South African Police Service Mr. B. Cele cited in is official capacity and represented herein by the offices of the State Attorney, with particulars as stated above.
4. The abovementioned Honourable Court has jurisdiction to hear this matter by virtue of Section 6 of the Employment Equity Act.
5. Statement of the facts that will be relied on:
5.1 The Applicant, is a white male currently employed by the SA Police Service in the post of Inspector at its Air Wing division. He commenced employment on the 28th of December 1988, and currently earns a gross salary of R13 070, 00 ( thirteen thousand and seventy rand) per month.
5.2 On the 12th of July 2008, the Applicant applied for advertised post 7831 being the following post: Captain, Airborne Law Enforcement Officer, Helicopters.
5.3 At the time, the Applicant was performing all of the functions attached to the position of advertised post 7831.
5.4 The Applicant was shortlisted and on the 23rd of January 2009, the Applicant was interviewed for post 7831, by an interviewing board consisting of the following members:
Chairperson: Director van der Colff
Panel member: Senior Superintendent Malebo, Senior Superintendent Lebese and Senior Superintendent Nondwangu.
5.5 After receiving no feedback from the First Respondent the Applicant inquired from Superintendent Nkoana's office, on the 2nd of March 2009, on the filling of the post. The Applicant was merely informed that the post was not filled but no reasons provided therefore. On same day the Applicant applied in writing for an explanation as to why the post was not filled.
5.6 On the 3rd of March 2009 the Applicant applied via SAPS 512 N to obtain copies of the interviewing board's recommendations regarding his interview. On the 30th of March 2009, the Applicant received a letter from the First Respondent informing him that the position is not filled due to equity reasons.
5.7 After obtaining the interviewing's board's recommendation it was evident that the Applicant was recommended for promotion to post 7831 and it was specifically stated by the interviewing board that he was the only suitable candidate to be promoted in the post.
5.8 Only two applicants qualified for the post of which the Applicant was the only suitable candidate.
5.9 The Applicant lodged a complaint in terms of the SAPS grievance procedure on the 22nd of May 2009 in which he inter alia requested “why seven other white inspectors could be promoted to the rank of Captain however the position he applied for was left vacant due to equity reasons”.
5.10 On the 27th of August 2009, the Applicant received a comprehensive report from the grievance officer. In the report it was indicated that the Divisional Commissioner, Division Visible Policing, did not approve the selection panel's recommendations. The grievance officer came to the finding that considering the relevant sections regarding promotion, the Divisional Commissioner, Visible Policing, is of the opinion that a recommendation for the Applicant's promotion does not address representivity at the level of the post in the business unit where the post is situated, with the conclusion that the status quo with regards to the decision is maintained by the Division Visible Policing.
5.11 No consensus were reached and the matter was accordingly referred to the CCMA for conciliation and on the 22nd of September 2009, after which the matter still remained unresolved and the Commissioner issued a certificate that the matter should be referred to the Labour Court.
5.12 The Applicant continue to perform all of the functions attached to the post and at time of the filling of the Statement of Case the post was still vacant.
6. The legal issues that arise from the above facts:
6.1 whether the Applicant was directly discriminated against on the basis of race;
6.2 whether, if the Applicant was discriminated against, such discrimination was unfair;
6.3 whether the Respondents are entitled in the circumstances to raise equity targets as a defence to the claim of unfair discrimination, more particularly in circumstances where there were no (qualified) designated candidates and the post was never filled;
6.4 whether the Respondents were required by law to consider the merits of the Applicant's application and, if so, whether they did so;
6.5 whether the Respondents acted arbitrarily, capriciously and/or according to a wrong principle by refusing to consider the Applicant's appointment solely because it would not "enhance" employment equity targets;
6.6 whether the decision not to appoint the Applicant was taken in terms of an equity plan or policy and, if so, whether that plan or policy was complied with;
6.7 whether, by not appointing the Applicant, the Respondents breached their constitutional obligation to prevent, combat and investigate crime in the most efficient manner possible;
6.8 whether, by not appointing the Applicant, the Respondents have promoted the goal of employment equity in the manner and for the purposes contemplated by the Employment Equity Act 55 of 1998 ("the EEA") and the Constitution;
6.9 whether, if the Respondents are found to have complied with the requirements of the EEA, that Act is constitutionally compliant;
6.10 whether the Applicant is entitled to relief.
7. Relief sought
7.1 An order declaring that the Respondents' failure/refusal to appoint the Applicant to the position of Captain in post 7831 constituted unfair discrimination.
7.2 An order directing the Respondents to appoint the Applicant to position of Captain in post 7831, or to any suitable vacant post of similar rank, with retrospective effect to 1st of March 2009.
7.3 An order directing the Respondent to compensate the Applicant with an amount equivalent to the difference between the salary he has earned 1st of March 2009 and the salary he would have earned had he been promoted then.
An order directing the Respondents to pay the Applicant compensation in the amount that the Court deems fit to grant.
7.4 Directing the Respondent to take steps to prevent the same unfair discrimination or a similar practice occurring in future in respect of other white applicants.
7.5 Publication of the Court's order in the event of the Applicant being successful.
7.6 Such further and/or alternative relief as the Honourable Court deems fit to grant.
9. Schedule of documents
Attached is a schedule of documents, which are material and relevant to the issue. http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid=211425&sn=Marketingweb+detail&pid=90389