The implications of the Constitutional Court's judgment in the Barnard case

After eight years of litigation the highest court in South Africa is about to give their final say on the acceptability of race quotas in the workplace, in the "Solidarity obo Barnard vs SAPS" case.

The case, which comes before the Constitutional Court on 20 March, is the culmination of years of legal proceedings in which Captain Renate Barnard, a member of the South African Police Service, steadfastly opposed the idea that the reengineering of staff composition, according to national race statistics, could trump considerations such as service to the public and individual dignity. Whichever way the judgement goes it will profoundly influence the role of race in South African labour relations.

To understand fully the implications which the Constitutional Court judgement will have for the doctrine of affirmative action, it is necessary to revisit the facts of the case:

In 2005, Capt. Barnard applied for a position of superintendent (now lieutenant colonel). She was named the best candidate, but because of affirmative action she was not appointed to the position.

The department had decided that white females were already "over-represented" at this level, by which they meant that there were more white females at that job level than there should have been, given the proportion of white females according to some statistical measures of national race and gender composition. Notwithstanding the fact that Barnard was recommended for appointment by the panel the Divisional Commissioner decided that the position should be re-advertised.

The post was re-advertised and in 2006 Capt. Barnard applied for it once again. Yet again she was the best candidate, and this time the Divisional Commissioner even personally recommended that the National Commissioner appoint her. Nevertheless, the National Commissioner decided to withdraw the advertisement.

The Labour Court, which was first to hear the case, found that to leave the post vacant was not a fair and appropriate method of implementing employment equity. The Court held that Barnard's right to equality and dignity required that the SAPS's Employment Equity plan be flexibly applied with due regard to the particular circumstances of the affected persons' right to equality and dignity.

The SAPS appealed to the Labour Appeals Court, which found against Barnard. It indicated that affirmative action measures cannot be made subject to an individual's right to equality; that such subjection would defeat the very purpose of restitutionary measures; that the SAPS's employment equity plan, rigid or not, represented a rational programme; and that the National Commissioner had the prerogative to appoint and that it was not for the courts to second guess his decision.

On Solidarity's appeal on behalf of Barnard to the Supreme Court of Appeal, this latter Court overturned the Labour Appeals Court judgement against Barnard. It supported the earlier notion by the Labour Court that a flexible and "situation sensitive" approach should be followed. It warned that a mathematical approach to employment equity would amount to nothing other than a quota system prohibited by section 15(3) of the Employment Equity Act. The Court further confirmed that an Employment Equity Plan cannot serve as a basis to justify absolute race-based limitations to appointment.

The Employment Equity Act, it is here sufficient to note, states that it aims to eliminate unfair discrimination in the workplace; and promote equitable representation in the workplace through measures such as preferential treatment, but excluding rigid limitations such as quotas. Employers who fall under the act need to develop and implement an employment equity plan aligned with the objectives and the restrictions of the act.

Assuming that the Constitutional Court agrees that it has jurisdiction over the matter - and in lieu of the fact that a midway between the previous judgements for and against Barnard seem untenable - two possible outcomes warrant consideration. The Constitutional Court can uphold the Supreme Court of Appeal's judgement in favour of Barnard and against race quotas; or it can revert to the Labour Appeals Court's judgement in favour of the SAPS and rigid race quotas.

A judgment concurring with the views of the SCA will not mean the end of affirmative action per se. However, it will bring to an end the way in which the SAPS and many other employers implement affirmative action measures. It will emphasise that a "case sensitive approach" needs to be taken and will mean that all employees who have lodged unfair discrimination disputes - such as those in Solidarity's case on behalf of its members against the Department of Correctional Services - will have the right to have their personal circumstances evaluated as well as their right to equality and dignity being made a proper consideration. Having an employment equity plan ("rigid" or not) in place will not safeguard employers from having to prove the fairness of their employment equity measures.

Even more so if the implementation of the measures is done on a mathematical approach in terms of which the individual is taken out of the equation. The decision makers who decide to appoint and or not to appoint will have far greater responsibilities on their shoulders to prove that they took into consideration a number of factors.

Due to the fact that the leaving open of positions have become such a regular occurrence within the state department, one of the most fundamental impacts on the SAPS and other state departments will be that that they will no longer be able use race as a justification for leaving open a position, if there is a suitable candidate available to promote.

On the other hand, should the Constitutional Court concur with the LAC judgment, the impact on the non-designated group and/or "over-represented" groups will be far reaching. The end goal of "representivity" will justify all means. Any employment equity plan, "rigid" or not, will be sufficient justification for leaving positions vacant and for not appointing individuals from the non-designated group and/or from "over-represented" groups.

An individual's right to equality and dignity will become a secondary consideration in evaluating the aim the measures "seek" to achieve.  The definition of what a "quota system" and "absolute barriers" are would be watered down to such an extent that it will be impossible to properly identify when measures amount to either.

By far the best outcome to this eight year long legal battle, not only for Captain Barnard but for the labour market in general, is a judgement concurring with the SCA. The SCA balanced the obligation on an employer to implement affirmative action measures with the right of employees not to be unfairly discriminated against - and did so by carefully evaluating the facts specific to the case. Concurrence with such a judgement will allow for a nuanced approach to the implementation of affirmative action.

However, should the Constitutional Court reject the Supreme Court of Appeal's finding in favour of Barnard and Solidarity - and somehow leave the door open for rigid quotas and the blind pursuit of race representivity - it is hard to see how members of white, coloured and Indian communities should surmise anything else than that their and their children's future employment have become extremely precarious.

Dirk Groenewald is Head: Solidarity's Centre for Fair Labour Practices

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