Solidarity wins Renate Barnard affirmative action case in Supreme Court of Appeal

The Supreme Court of Appeal (SCA) in Bloemfontein today found in favour of Solidarity and Capt. Renate Barnard in one of the country's most controversial affirmative action cases. Barnard's legal battle against the South African Police Service (SAPS) for promotion lasted more than eight years. Apart from having to pay the legal costs of the Labour Court, the Labour Appeal Court and the SCA, the SAPS must compensate Barnard.

‘The ruling is a huge victory for Solidarity and Capt. Barnard. She had to fight for justice for eight years. Her tenacity captured people's imagination,' said Dirk Hermann, Executive Officer of Solidarity. The full bench of the SCA found that the SAPS had discriminated unfairly against Barnard on the basis of race. ‘According to the judgment, employment equity cannot be achieved by mechanically applying formulas and numerical targets. The ruling further states that in order to determine equity, a flexible and situation-sensitive approach must be followed.'

Hermann said the ruling makes it clear that numerical targets cannot be used as absolute criteria when filling posts. ‘Numerical targets lead to quotas, and the Employment Equity Act does not allow quotas. The ruling also touches on the issue of service delivery. According to the judgment, the South African Constitution expects the police service to be professional and effective, and to use its resources efficiently. The judges found that filling the post for which Barnard had applied was critical and that the police's argument that it wasn't, was a lie. The judges found that Barnard's non-appointment in the post in question had negatively affected service delivery.'

Barnard's fight against affirmative action started in 2005. She applied for the same post twice. She was named the best candidate and her appointment was recommended by the interview panels on both occasions. The post was, however, not filled. After the post had been advertised a third time and Barnard had again applied for it, it was withdrawn.

A factsheet regarding the case follows below:

Captain Renate Barnard:

She has worked for the South African Police Service (SAPS) for 24 years.

Her grandfather and father were police officers.

From an early age her dream was to be a policewoman.

In 1976 Duveen Botha was the first policewoman in South Africa to be sworn in. At the time Captain Barnard was a little girl of six and she remembers telling her father that she could also join the police now.

She did well in school and could have gone to university, but chose the police instead.

Background:

Captain Barnard has been employed in the police service since January 1989.

She was promoted to the rank of captain in 1997.

In 2005 the SAPS created a new post for a (then) superintendent "to evaluate and investigate priority and ordinary complaints nationally". It was advertised as post 6903.

Barnard was interviewed for this post on 3 November 2005 and was subsequently recommended as the best candidate.

No appointment was made due to equity; the post was left vacant.

The post was re-advertised in 2006. Barnard was once again named the best candidate and was recommended for appointment by the divisional commissioner.

The National Police Commissioner declined to approve her appointment due to equity reasons, saying the ‘post is not critical'. The post was subsequently withdrawn.

A case of unfair discrimination (based on race) was referred to the Labour Court in 2007.

Johannesburg Labour Court judgment:

On 26 February 2010 the court ruled in favour of Barnard.

Barnard was promoted to the post of superintendent with effect from 27 July 2006.

The respondents were granted leave to appeal. The appeal was heard on 4 May 2011.

Labour Appeal Court judgment:

On 2 November 2012 the court delivered judgment in favour of the SAPS.

Solidarity was granted leave to appeal on 7 February 2013.

Supreme Court of Appeal:

Solidarity's appeal was heard on 6 November 2013.

The Supreme Court of Appeal found in favour of Solidarity and Capt. Barnard on 28 November 2013. This judgment ratified the ruling of the Johannesburg Labour Court and set aside the ruling of the Labour Appeal Court.

Statement issued by Dirk Hermann, Executive Officer: Solidarity, and Dirk Groenewald, Head: Centre for Fair Labour Practices, Solidarity, November 28 2013

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