The Barnard case: Judgment and consequences

On 2 September 2014, the Constitutional Court handed down judgment in the case of the trade union Solidarity, on behalf of Lieutenant Colonel Renate Barnard, against the South African Police Service (SAPS). The SAPS's appeal against a previous ruling in favour of Barnard and Solidarity was ratified, with the exception that Solidarity did not have to pay the legal costs of the SAPS.

The facts of the case are well-known, but in short, the case dealt with the national commissioner's decision not to fill a position since that specific appointment would have adversely affected the SAPS's employment equity goals on the relevant job level. The issue was whether this amounted to unfair discrimination in terms of the Employment Equity Act (EEA).

The case has come a long way, with the Labour Court ruling in favour of Barnard, the Labour Appeal Court ratifying the SAPS's appeal, the Supreme Court of Appeal ratifying Solidarity's appeal, and then the final ruling by the Constitutional Court.  

Although the Constitutional Court decision to uphold the SAPS's appeal was unanimous, there were contradictory judgments about the reasons why the appeal had to succeed. The courts are now bound by the majority verdict.

This article seeks to provide the reader with certain guidelines from a practical analysis on how affirmative action should be applied, the limits thereto as well as the consequences of this court case on other discrimination cases.

The test used by the court to adjudicate the case

The court explained that the test that should be used to determine whether the affirmative action measures implemented were constitutional or not, involved the following: 

 [36] The test whether a restitution measure falls within the ambit of section 9(2) is threefold. The measure must -

(a) target a particular class of people who have been susceptible to unfair discrimination;
(b) be designed to protect or advance those classes of persons; and
(c) promote the achievement of equality.

The court confirmed that should the affirmative action measures comply with this tripartite test, these measures could not be considered to be unfair in terms of the Constitution:

 [37] Once the measure in question passes the test, it is neither unfair nor presumed to be unfair. This is so because the Constitution says so. [...] Section 6(2) of the Act, whose object is to echo section 9(2) of the Constitution, is quite explicit that affirmative action measures are not unfair. This however, does not oust the court's power to interrogate whether the measure is a legitimate restitution measure within the scope of the empowering section 9(2).

However, the court reserves the right to evaluate these affirmative action measures and to question the legitimacy thereof. This is definitely a plus factor as it puts an end to the Labour Appeal Court's argument, and some of the State's arguments, that affirmative action measures are a policy decision made by the executive authority with which the courts cannot interfere. Although the court did not explicitly mention it, the affirmative action measures referred to here are the employment equity plans that designated employers are obliged to compile.

The latter is confirmed by the court's statement that they not only have the right to determine whether the affirmative action measures/goals are legitimate, but also whether the application thereof comply with the Act:

[38] The next question beckoning is whether the manner in which a properly adopted restitution measure was applied may be challenged. The answer must be, yes. There is no valid reason why courts are precluded from deciding whether a valid Employment Equity Plan has been put into practice lawfully. This is plainly so because a validly adopted Employment Equity Plan must be put to use lawfully. It may not be harnessed beyond its lawful limits [.]

Regarding the evaluation of the implementation/application of the affirmative action goals, the court confirmed that the test for the legitimacy thereof should involve a rational relationship test:

 [39] As a bare minimum, the principle of legality would require that the implementation of a legitimate restitution measure must be rationally related to the terms and objects of the measure. It must be applied to advance its legitimate purpose and nothing else. [...] Although these are the minimum requirements, it is not necessary to define the standard finally.

However, the court made no final decision regarding this test but confirmed that the measures should comply with this minimum requirement. We feel that this again is a deliberate failure to provide clarity.

The EEA

In some respects the court brings clarity on the application of the EEA, and specifically on whether designated employers should have employment equity plans in place when applying employment equity measures.

 [40] The Act requires that an employment equity plan must be devised and approved. Affirmative action measures must be taken in accordance with an approved employment equity plan.

The court further confirms that competent and qualified affirmative action candidates should be appointed and that affirmative action may not be used to justify the appointment of incompetent and unqualified persons:

 [41] [B]eneficiaries of affirmative action must be equal to the task at hand. They must be suitably qualified people in order not to sacrifice efficiency and competence at the altar of remedial employment. [...] Plainly, a core object of equity at the workplace is to employ and retain people who not only enhance diversity but who are also competent and effective in delivering goods and services to the public.

Although the court explicitly failed to define the term "quotas", it did assert that affirmative action measures may not result in an absolute restriction or embargo on the appointment and/or promotion of persons:

 [42] Section 15(3) contains a vital proviso that the measures directed at affirmative action may include preferential treatment and numerical goals but must exclude "quotas". Curiously, the statute does not furnish a definition of "quotas". This not being an appropriate case, it would be unwise to give meaning to the term. Let it suffice to observe that section 15(4) sets the tone for the flexibility and inclusiveness required to advance employment equity. It makes it quite clear that a designated employer may not adopt an Employment Equity Policy or practice that would establish an absolute barrier to the future or continued employment or promotion of people who are not from designated groups.

In short, the court ruling therefore determined the following:

1. The adjudication of discrimination cases involve a tripartite test and not an automatic onus of proof as contained in the Act;

2. Employers must have employment equity plans in place when they apply affirmative action;

3. Affirmative action may not result in incompetent and unqualified people being appointed;

4. Affirmative action may not amount to a quota system and absolute restrictions;

5. The court reserves the right not only to evaluate affirmative action measures, but also to evaluate the application thereof.

The court ruling may have been a setback for Barnard and her legal counsel but it certainly is not a setback for the persons and/or groups that question and want to put the application of affirmative action in the workplace to the test.

* Dirk Groenewald is Head: Solidarity Centre for Fair Labour Practices. This article first appeared in the South African Labour Market Report, a quarterly publication by trade union Solidarity, in cooperation with market strategists ETM Analytics.

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