Top judges divided on affirmative action law

2014-09-06 11:00

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The Constitutional Court this week put an end to a ­landmark ­seven-year affirmative action case, ruling against former ­police officer Renate Barnard and her union, Solidarity.

It was the first time the highest court in the land had dealt with this fundamental pillar of South Africa’s transformation laws – and the legal limits of “fair discrimination”.

But even the Constitutional Court couldn’t quite agree on that.

Acting Chief Justice Dikgang Moseneke wrote a main judgment, supported by six other judges, that was at odds with a minority judgment by three others.

According to Moseneke, the court didn’t have to get too deeply into the

fundamental issue of how employers across South Africa need to avoid turning employment equity into illegal job reservation.

It wasn’t crucial to Barnard’s case, wrote Moseneke.

Instead, she lost because the police commissioner who decided not to promote her was acting in terms of an employment equity plan that had not been ­challenged itself.

The Supreme Court of Appeal (SCA) had mistakenly let the case be about a bigger issue than that, according to Moseneke’s judgment.

The other judgment, written by Judge Edwin Cameron, said the ­court can’t dodge the issue of fair and unfair discrimination. It has to provide “guidance on this difficult issue” and create a “standard of fairness”.

Cameron wrote: “If we were to adopt the more deferential standard suggested by the main judgment, it would be difficult to ever hold that a decision maker had impermissibly converted a set of numerical targets into quotas.”

Using employment equity targets as strict quotas is illegal.

The SA Police Service has provided the infamous example with its employment equity plan calling for the employment of 0.4 Indian women per pay grade – which practically means zero.

But all the judges agreed that the fact that Barnard did later become a lieutenant colonel, as well as the fact that white women were overrepresented in that rank to begin with, makes it unlikely there is some kind of silent ban on white advancement in the policing sector.

The Cameron judgment frames employment equity as a temporary measure comparable to “fighting fire with fire”, and an “exception” from the general rule that everyone is equal. As for fairness, every employment equity decision has to take into account not only race but all the other markers of historic ­disadvantage like gender, it reads.

“A decision that redresses racial disadvantage, but grossly aggravates gender disadvantage, for example, might be impermissible.”

While that turns out to not change anything for Barnard, it might not be true in future situations.

In the Barnard case, it was a “close call” and the thing that swung it was that there were already many white women in the salary level she had applied for.

But the judges did criticise the department for not explaining any of this, and instead giving “opaque” reasons for its denial of Barnard’s promotion.

Not the end

Solidarity has several other employment equity cases pending. The union’s legal head, Dirk Groenewald, said the union receives about 100 complaints a year. The complaints were mostly in the public sector or at parastatals. In the private sector, the union received complaints about Tongaat Hulett and PPC.

At the moment, Solidarity has active “folders” for 45 members, and includes the next “test” case on behalf of 10 coloured members at the correctional services department in the Western Cape.

In that case, the union is ticking all the boxes raised in this week’s judgment.

Specifically, it attacks the legitimacy of the department’s entire employment equity plan and whether it is right to use national demographic targets in places like the Western Cape, which has a very different demographic landscape to the rest of the country.

The History

In 2005 and 2006, Barnard, then a captain in the police service, applied for an appointment as lieutenant colonel.

Both times, a panel recommended that she get the job – and both times her appointment was blocked higher up, allegedly because it would not improve racial representivity.

Since 2007, she has challenged that decision in the labour court, where she won; the Labour Appeal Court, where she lost; the SCA, where she won again; and now the Constitutional Court, where she has lost.

Barnard resigned from the police service about a month ago and the practical impact of the case for her would have been restricted to cash damages.

She had also actually been promoted to lieutenant colonel some time ago, but in a different department.

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