White rights downgraded – Solidarity

2012-11-02 12:58

A ruling related to affirmative action by the Labour Appeal Court has diluted white South Africans’ right to equality, trade union Solidarity has said.

Deputy general secretary Dirk Hermann said today this could not be acceptable in a constitutional democracy.

“We don’t believe the Constitution sanctions this kind of racism.”

Labour Appeal Court Judge Basheer Waglay upheld an appeal by the SA Police Service (SAPS) against a 2010 Labour Court ruling, which ordered the promotion of police Captain Renate Barnard to the level of lieutenant-colonel.

Solidarity brought the matter to court on behalf of Barnard, who was refused a promotion because of affirmative action.

Hermann said Barnard applied for the same position twice and was each time recommended as the most suitable candidate by the interview panel, but was not appointed.

When this happened a third time, the post was withdrawn, as being “not critical”.

The matter was taken to the Labour Court, which found she should have been promoted.

However, the post had already been withdrawn.

The Labour Court ruled that the implementation of affirmative action had to be rational.

It also found that the rights to equality and dignity of non-designated groups needed to be protected.

Barnard has been a policewoman for 24 years and said she remained passionate about her work and the police service in general.

Her father, grandfather, brother and brother-in-law were all employed by the SAPS.

Barnard said she had not been ostracised for pursuing her case.

“I have received a lot of support from all my colleagues, of all races and genders,” Barnard said. Her fight for promotion was “not a racial issue”, she said.

Because of the nature of the case, Barnard said she sometimes felt as though she were being branded as racist.

“In court, I felt like I was the accused. I am definitely not a racist.”

She said she had not thought it would be necessary go to such lengths to be promoted.

Solidarity’s Labour Court department head Dirk Groenewald said the Labour Appeal Court’s decision had implications for service delivery.

“With [South Africa’s] statistics on crime, we have to put service delivery first, in the interests of all South Africans.”

The SAPS’ interpretation of the legislation meant it measured progress in affirmative action against national demographics, rather than its skills base.

As such, until quotas were met, individuals of non-designated groups had no prospect of promotion.

In addition, Herman said: “The Employment Equity Act makes it clear that you cannot have a quota system.”

Hermann said this impinged on people’s rights to equality and dignity.

Usually, the next step would be an application to the Supreme Court of Appeal.

However, as the matter was deeply intertwined with constitutional matters, Solidarity hoped to proceed directly to the Constitutional Court.

The Labour Appeal Court found today that service delivery was not negatively affected by the decision not to promote Barnard.

This was because it was the national police commissioner’s prerogative to leave a post vacant. It was not the court’s place to second-guess this decision.

The judgment also disregarded claims that the SAPS employment equity plan was focused on employing blacks, regardless of other criteria.

In his judgment Waglay said: “That, to me, suggests that should a black candidate be unsuitable, that candidate will not be appointed”.

No order was made for costs because Waglay found that the matter raised important constitutional questions.

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