Solidarity granted leave to appeal in Barnard case
The trade union Solidarity was granted leave by the Highest Court of Appeal in Bloemfontein to appeal against the Labour Court's ruling in the Renate Barnard affirmative action case. Solidarity hereby aims to have the Labour Court's finding that Capt. Barnard must be promoted in the South African Police Service (SAPS) and that she was discriminated against based on the colour of her skin enforced.
The Labour Appeal Court ruled in favour of the SAPS in November after the party appealed against the Labour Court's decision. Dirk Hermann, Deputy General Secretary of Solidarity, said that the trade union is hopeful that the case will be heard before the end of this year. He said that the Labour Appeal Court's ruling contravenes the Employment Equity Act, which rejects the mechanical use of quotas. ‘We decided to first approach the Supreme Court of Appeal before applying to the Constitutional Court since we want to gain clarity on certain legal issues. We feel that the Supreme Court of Appeal will focus more on the legal issues, such as the SAPS's non-compliance with legislation, than solely focussing on the constitutional aspects of the case. It will also be advantageous for the other affirmative action cases we have brought against government.'
Hermann said that Solidarity is ready to fight the case to the Constitutional Court. ‘If the ruling of the Labour Appeal Court is upheld, employers will be free to leave positions vacant for purposes of affirmative action which will have a negative effect on service delivery and will therefore be to the detriment of everyone living in South Africa. In the Labour Appeal Court's ruling it was found that it is not within the court's jurisdiction to determine if the national commissioner should fill a post or if the commissioner's decisions would be detrimental to service delivery. ‘We are seeking finality on the constitutionality of a quota system that is based on the national racial demographics, the balance between affirmative action and service delivery, and the Constitution's provisions regarding the non-designated group's right to equality and dignity,' said Hermann.
In the meanwhile Solidarity has appealed to all South Africans to offer their support to Capt. Renate Barnard for the court battle which lies ahead. People can offer their support to Barnard by texting the word ‘Sterkte' to 34388 or by visiting here and sending her a message. The trade union hopes to collect thousands of support messages to present to Barnard in this way.
The Renate Barnard case is one of Solidarity's 33 affirmative action cases that test different aspects of the state and parastatals' affirmative action plans. Ten of the cases have already been ruled in Solidarity's favour. There are 15 cases remaining, all of which relate to the SAPS.
Barnard's affirmative action battle dates back to 2005. She applied for the same position twice and was identified as the best candidate and recommended by the interview panel on both occasions. The position was left vacant, however. The position was advertised for a third time, but was withdrawn after she had reapplied for it.
Statement issued by Dirk Hermann, Deputy General Secretary: Solidarity, February 11 2013
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