The widely publicised Barnard / South African Police Service saga came to an end last week after 7 years of litigation and uncertainty.
After twice being overlooked for promotion in the Police Service, Ms Barnard (a white female) lodged an unfair discrimination claim against her employer. Ms Barnard had been twice been recommended by interviewing panels as the most qualified for the respective promotions but in both instances the eventual decision had been to leave the positions vacant since her appointments therein would not advance the employer’s Employment Equity targets. White females were already over-represented in the levels for which she had been applying.
The Labour Court agreed with her and reasoned that when a claimant complains of unfair discrimination, the Police Service bears the onus to show that the discrimination was not unfair. This meant that it must adduce sufficient evidence to show, on a balance of probabilities, that the decision was fair. It concluded that the reasons given by the National Commissioner were scant and insufficient. The Court added that an Employment Equity Plan must be applied fairly with due regard to the affected individual’s right to equality and that representivity must be weighed against that right. It added that it was not appropriate to apply without more numerical goals set out in an Employment Equity Plan.
The Labour Appeal Court overturned the decision and the Supreme Court of Appeal then overturned that decision, again agreeing with Ms Barnard – finding that service delivery would have been compromised by leaving the position vacant.
Now, in the Constitutional Court, Ms Barnard argued that in declining to appoint her, the National Commissioner made an unlawful and unreasonable decision which must be set aside. The National Commissioner did not properly take into account her merit and competence. Up until this point in the litigation history, Ms Barnard had never sought such a review of the decision to not appoint her and the Constitutional Court found that this was impermissible at this final appellate stage.
The Court concluded that the National Commissioner was justified in refusing to appoint Ms Barnard because her appointment would indeed not advance representation targets. The Employment Equity Plan obliged the Commissioner to take steps to achieve these targets. The Court found that the targets were not pursued too rigidly and the refusal to appoint her did not amount to job reservation which would not be allowed. The Court concluded that the Commissioner had exercised his discretion reasonably and that it could not be reviewed.
With that, the matter has now been finalised in a unanimous decision from our Constitutional Court. This, however, does not mean that future cases may not be decided differently. These facts were specific and the Judge’s reasoning was clearly influenced by them as a whole. In his main judgment Moseneke ACJ was clear about what is expected in the Employment Equity realm:
“Our quest to achieve equality must occur within the discipline of our Constitution. Measures that are directed at remedying past discrimination must be formulated with due care not to invade unduly the dignity of all concerned. We must remain vigilant that remedial measures under the Constitution are not an end in themselves. They are not meant to be punitive nor retaliatory. Their ultimate goal is to urge us on towards a more equal and fair society that hopefully is non-racial, non sexist and socially inclusive.”
For the entire judgment, go to http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZACC/2014/23.html&query=barnard