Unfair Labour Practice: Solidarity obo R Burger v SAPS

Solidarity obo Burger v South African Police Service (C242/2023) [2025] ZALCCT 51 (9 July 2025)

Facts

In August 2020, the South African Police Service (“SAPS”) advertised a vacancy for a warrant officer position in the Forensic Detective Services, Explosive Section, under Post Promotions Phase 1 for the 2020/2021 financial year. Accordingly, candidates were shortlisted and interviewed. Mr R Burger (“Burger”), a White male, achieved the highest score of 73% and received the panel’s recommendation. Warrant Officer Hartzenberg (“Hartzenberg”), a Coloured male, scored 65% and ranked third. For arbitration, Burger was treated as first and Hartzenberg as second.

The Divisional Commissioner appointed a moderation committee, which supported Burger. He endorsed that outcome and submitted it upward. SAPS’s Employment Equity profile showed underrepresentation of Coloured males by eight and overrepresentation of White males by 116. Clause 11.3 gave the National Commissioner authority over promotions. The national moderation committee declined Burger’s promotion and directed Hartzenberg’s appointment. SAPS announced the appointment on 6 April 2021, with effect from 1 April 2021.

Feeling aggrieved, Burger, through his union, Solidarity, referred an unfair labour practice dispute. Arbitration ended in February 2023 with Arbitrator Clarence Randall (“Randall”) finding no unfair labour practice. Solidarity sought review under section 145 of the Labour Relations Act (“LRA”).

Issues

The court was called upon to determine the following legal questions:

Whether Randall’s award was reviewable for gross irregularity, misdirection on the evidence, or failure to consider material facts;
Whether his conclusion that SAPS did not commit an unfair labour practice was one a reasonable decision maker could reach;
Whether clause 11.3, which gave national oversight, was lawful and consistent with National Instruction 3 of 2015;
Whether SAPS acted arbitrarily, capriciously, or in bad faith in preferring Hartzenberg;
Whether the 10% differential rule was applied correctly; and
Whether the treatment of Brink and Barnard (White males, who were recommended for promotion) showed inconsistency.

Arguments of the Parties

The Applicant, Solidarity, on behalf of Burger, advanced several review grounds. It alleged that Randall misconstrued the evidence, failed to consider material facts, and reached an unreasonable outcome. It further argued that he applied incorrect legal principles and would have decided differently on a proper approach. It challenged clause 11.3 as unlawful and inconsistent with National Instruction 3 of 2015, with no valid waiver. It also contended that Randall ignored the Employment Equity Plan and misapplied the 10% differential rule. It relied on the promotion of Brink and Barnard to show inconsistency, and argued that undisputed evidence received insufficient weight.

The respondents opposed the review and defended the award on several grounds. They argued that Hartzenberg’s promotion served a legitimate equity objective, given the overrepresentation of White males and underrepresentation of Coloured males. They also stated that Clause 11.3 formed part of the advertised process, so Burger had notice of national oversight. The decision, in their view, was rational and based on representivity, not arbitrariness. Regarding the 10% differential rule, they argued it did not apply, as the scores fell within that margin. The respondents also argued that Brink and Barnard were distinguishable because their score gaps exceeded 10%.

The Court’s Ruling

The court confirmed the review standard under section 145 of the LRA, as set out in Sidumo v Rustenburg Platinum Mines Ltd¹ and Herholdt v Nedbank Ltd.² The question is whether the decision is one a reasonable decision maker could not reach. The enquiry requires proof of an error and that the error renders the outcome unreasonable. Errors that do not affect the outcome are insufficient. The full record must be considered.

The court accepted, with reference to Noonan v Safety and Security Sectoral Bargaining Council,³ that there is no right to promotion, only a right to a fair process. It held that the challenge to the scoring and the 10% rule was not properly pursued, as no evidence supported it. No inconsistency arose from Brink and Barnard. Clause 11.3 was valid and aligned with representivity. Ultimately, the review failed, and no costs order was made.

Author’s Opinion

This case is a story about a man who scored the highest, was recommended by every internal panel, and lost his promotion anyway. What grates me somewhat is the court’s response, which is, essentially, that he lost because his union did not know the rules well enough. That is a deeply uncomfortable conclusion, even if it is technically correct.

The judgment exemplifies a recurring pathology in labour law review proceedings, which is that the substantive question of whether justice was done becomes obscured by the procedural question of whether the arbitrator’s process was sufficiently defective. Those who read my work know I complain about this more times than I care to note.

The court itself conceded that the underlying merit of Burger’s scoring argument was strong. Had Solidarity simply called the interview panel, the outcome might well have been different. This is not a minor oversight. It is the difference between a win and a loss, and it was caused not by Burger’s conduct, but by his legal representative’s tactical failure.

I know this is precisely how adversarial adjudication is supposed to work i.e., parties bear responsibility for the choices made in their cases. However, in the context of labour law, courts should exercise more understanding. Labour processes, including the Labour Court, exist precisely because individual employees and even trade unions often lack the sophistication and resources to match an institutional employer. Solidarity is, admittedly, a large and capable union. But the principle at stake is larger than this case.

South Africa’s commitment to transformation and representivity is constitutionally entrenched and morally necessary. No serious person disputes this, but the application of equity in this case deserves scrutiny. Burger, a White male, was passed over in favour of Hartzenberg on the basis of race. That is explicitly what happened. The court finds this lawful, correctly so under current law. However, the mechanism by which it was done should trouble anyone who values administrative legality as a check on arbitrary State power. An advertisement clause that quietly shifted approval authority from the Divisional Commissioner to a national body, without any formal amendment to the relevant instruction, is not a trivial procedural matter.

The advertisement effectively created a new rule in the guise of a process note. The National Commissioner, already bound by NI 3/2015, appears to have used the advertisement as a workaround. This is not transformation. It is administrative sleight of hand. The court’s acceptance of the rationale, that the clause was introduced to ensure equal treatment, without any interrogation of its legal authority, is, in my humble opinion, the most significant weakness in the judgment.

What makes it even more ironic, the very principle invoked to justify Hartzenberg’s appointment, that the process must be applied consistently and equitably across divisions, is undermined by the evidence of Brink and Barnard’s promotions. The court distinguishes these on the basis of the 10% rule, but the applicability of the 10% rule in Burger’s case was never properly established, due to Solidarity’s evidentiary failure. So the consistent application of equity produced a result in which two similarly situated White males received promotion while Burger did not, and the legal system cannot examine whether that inconsistency was real because the right evidence was never placed before the arbitrator.

This is why I feel the current framework for the resolution of tension between employment equity and individual fairness in promotion disputes is structurally inadequate. The burden falls disproportionately on the individual applicant, who must forensically dismantle the employer’s process, while the employer has the benefit of deference to its equity mandate. The 10% rule, in particular, is a fragile and technocratic mechanism that produces dramatically different outcomes on the basis of small score variations, and its application depends entirely on whether the scores were accurate and effectively challenged.

Look, I agree the honorable judge, De Kock AJ, applied the law correctly. Randall’s award was defensible on the evidence before him. That said, an outcome that came through a process of questionable legal authority and an evidentiary record left incomplete by the employee’s own representative, does not inspire confidence that substantive justice was served. The legal system functioned. Whether it was fair is a different question.

At some point, we will need to confront whether the current standard of review provides adequate protection for individuals caught between the legitimate imperatives of transformation and the procedural demands of adversarial litigation. This case suggests that it does not.

You can read the full Burger v SAPS case here.