Barnard Case: A Missed Opportunity

The recent judgment of the Constitutional Court ("CC") in the matter of South African Police Service v Solidarity obo Barnard [2014] ZACC 23 is noteworthy, not for what the application managed to achieve but, rather, for what it failed to.

Introduction

The case of Renate Barnard has, ironically, proven to be propaganda material that both proponents, and opponents, of employment equity have used to great effect. The facts of the case could not be more apt to throw the difficulties that we face as a transforming society into sharper contrast. The reaction to the judgment, which held that ‘discrimination' executed in terms of employment equity, is instructive. We are, largely, a divided nation when it comes to how we balance the need for redress with being a truly non-racial society. However, the answer as to how we bridge that divide lies in the judgment itself: frank debate, disagreement, and even some degree of hurt, are part and parcel of our transformative process. Provided that we can agree on the need to create meaningful measures of redress that are given effect to in a constitutionally compliant manner, then, the ideals of a more just society will remain within our reach.

Background

The CC handed down a unanimous judgment that a decision, taken by the National Police Commissioner ("NC"), as head of the South African Police Service (SAPS), to not promote Barnard to the position of superintendent on the grounds of her race, constituted fair discrimination in terms of section 9 of the Constitution and section 6 of the Employment Equity Act ("EEA").

Barnard had been a member of the SAPS since 1989. In 2005, the NC advertised a position within the National Evaluation Service ("NES"), for which Barnard applied twice. Despite being shortlisted, interviewed, and recommended as the best candidate, she was unsuccessful on each occasion. This case, however, only concerned her second attempt. The NC justified his decision for not appointing Barnard on the grounds that appointing her would not enhance racial representivity at that particular salary level and that, further, since the post was not critical to service delivery, it was not necessary to fill the vacancy.

Case History

The Labour Court, where this matter originated, found in favour of Barnard. It held that the NC's decision was not a fair and appropriate method of implementing SAPS' Employment Equity Plan. Further, SAPS had not given sufficient reasons and, thus, did not discharge its onus to establish that the decision was rational and fair.

On appeal, the Labour Appeal Court (LAC) reversed the decision. It found that the implementation of restitutionary measures is not subject to an individual's right to equality in terms of section 9(3) of the Constitution. Thus, the decision not to promote Barnard was lawful because the NC was not obliged to fill the advertised post.

The Supreme Court of Appeal (SCA) overturned the LAC's decision, and found that Barnard was discriminated against. It, too, held that SAPS failed to rebut the presumption of unfairness in this regard. It held that Barnard, thus, suffered unfair discrimination.

CC Findings

The case, thus, brought before the CC the important question of how we achieve societal change in circumstances where it may harm an individual's equal protection rights. With this in mind, the CC granted SAPS leave to appeal. On appeal, the CC unanimously rejected the SCA's findings and upheld the finding of the LAC (above). However, it is important to note that the CC reached this order via four judgments, each of which expressing differing reasoning for its decision.

Majority Judgment by Moseneke ACJ

Moseneke ACJ (Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J, Madlanga J, and Zondo J concurring) held that the SAPS Employment Equity Plan is a restitutionary measure contemplated in section 9(2) of the Constitution and section 6(2) of the Act, which determined how the equality claim was to be evaluated. The SCA, therefore, misconceived the issue before it and decided the matter on the wrong principle. The entire equity mechanism itself was not under challenge. Importantly, the majority drew significant attention to the fact that the other mechanism of challenging the NC's decision - bringing a review - was only raised for the first time on appeal and was therefore not properly before the CC. The majority did comment, however, that on the facts, this cause of action was without merit.

Cameron J, Froneman J, and Majiedt AJ

Cameron J, Froneman J, and Majiedt AJ, while concurring with the majority, emphasised the possible infringement of dignity in the implementation of restitutionary measures, and the importance of giving adequate reasons for decisions. Even though they agreed that Barnard had not brought a review challenge, they found it necessary to adjudicate Barnard's claim that the NC's decision was at odds with the EEA. They held that the appropriate standard by which to evaluate this claim was fairness. In applying that standard, they found that the NC's reasons were important as they provide evidence of whether the Plan was implemented fairly, in terms of the EEA. Even though the NC's reasons were sparse on why he did not view service delivery as a pressing concern, and why he rejected Barnard's application even though, as a woman, she is a member of a designated group, they concluded that there was sufficient external evidence to show that the NC's decision was fair.

Van Der Westhuizen J

Van der Westhuizen J, in a separate concurring judgment, tested the implementation of an affirmative measure differently. Relying on Minister of Finance and Another v Van Heerden [2004] ZACC 3, he found that the decision not to appoint Barnard, even though she is a woman and would have suffered past disadvantage, did not threaten the long-term constitutional vision of a non‑sexist, non-racial society. In addition to an equality analysis, Van der Westhuizen J found that any impact on service delivery and on Barnard's dignity was justifiable in the circumstances.

Jafta J

Jafta J, concurring with the majority, took the view that the CC should not determine the cause of action relating to the review of the NC's decision, which led to Barnard being overlooked, reasoning that the claim that was brought before the other Courts was that of unfair discrimination and not the NC's decision. Jafta J reasoned that it was a principle of our law that a party must plead its cause of action in the court of first instance for parties to know what case they have to meet and what relief is sough. Here, Barnard was seeking relief on a new cause of action, and that was unacceptable [1].

Comment

The finding of the CC should come as no great surprise. South Africa takes a unique perspective on discrimination and equal protection - even though all citizens are equal before the law, there may be appropriate circumstances in which discriminating against citizens may be considered fair, and even desirable. This is our unique approach to tackling the pernicious legacies of racial segregation and Apartheid.

What is notable, however, is that in taking aim at affirmative action and employment equity as a whole, Solidarity (who acted on behalf of Barnard) failed to achieve any semblance of justice for Barnard at all. In what can only be described as a political manoeuvre- that is, seeking to disestablish affirmative action via the courts, and not through political processes - Solidarity failed to properly review the decision of the NC.

While the majority expressed an opinion that a review would have been unsuccessful in any event, it is doubtful whether the majority would have been able to reach that conclusion so easily whether all the grounds of review were adequately aired in court. Some of the factors which could have been traversed, on a reading of the judgment, include: the creation of a legitimate expectation (by advertising the post); the rationality of the decision (in light of the recommendations of the panel); the changing justification for the need (or lack of) the position; the exercise of an undisciplined delegated power of discretion. The lack of a review challenge by Barnard, as an appropriate mechanism of attaining justice, was spoken to in all of the judgments.

Probably even more important, however, is the failure to address an issue which overshadows most debates surrounding transformation: that is, the rigidity with which targets are applied and whether, if that application is inflexible, such targets can operate as a soft quota. The majority judgment, penned by Moseneke ACJ, and the concurring minority judgment written by Cameron J, Froneman J, and Majiedt AJ, highlighted the importance of that issue but offered no opinion as to the legality of such, other than to say that a quota system - in the context of the SAPS, at least - is unlawful.

This is owing to the fact that even though the issue was ripe to challenge in this case, the applicant failed to do so. Had the applicant challenged this, however, their contribution to our equality jurisprudence would have been well received for, it is often in the practical application of transformation that even those who support the principle behind it are often isolated. A targeted challenge of this aspect of employment equity would have given the court an adequate opportunity to pronounce upon such a relationship, between theory and practice, that would have been of significant value to South Africa as whole so that employers could better understand, and negotiate, the possible tension between individual fairness and transformative justice.

Interestingly, this restatement of the status quo neither advances nor retards the agendas of those in favour of, or opposed to, employment equity. The approach of the CC is to recognise that demographic representivity does play a role in transformation (thus, justifying things like targets in designated employers) but equally rebukes a slavish approach to targets that would amount to implementing a quota system (thus, limiting the role that representivity alone has in employment decisions).

Thus, the overly negative reactions by Solidarity, AfriSake, and the FF+, and the overzealous responses by the Higher Education Transformation Network (HETN), Black Management Forum (BMF), and the Cabinet, are equally misguided. The CC neither endorses a wholly majoritarian approach, nor does it create special carve-outs for minorities. Rather, it, like the Constitution, seeks to achieve a balance that recognises the injustices of the past without creating further injustices in the future.

Conclusion

While this judgment represents a missed opportunity, it is beneficial that the CC has, unequivocally, reaffirmed our legal and moral commitment to transformation. Had the NC's decision been challenged as a purely administrative matter - rather than as part of a wider political agenda of a trade union who explicitly seeks to protect minority interests - then maybe Barnard would have finally won the justice that she has been seeking for nearly a decade.

However, the failed attempt to unpick the constitutional commitment to substantive equality, and justice, has unfortunately seen her worthy case sacrificed on the altar of political point scoring. Even though they may have reached the same decision by different means, the unanimity of our court's decision speaks volumes: transformation is here to stay. The real question that remains to be asked is how the CC properly evaluates cases where that principle is not in contention, but its implementation is.

References

[1]. The summary of the facts, case history, and judgments, appears from the media summary issued in the name of the CC.

Kameel Premhid is a Research Fellow at the Helen Suzman Foundation

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