Barnard v SAPS: a peculiarly South African tale

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Barnard, a police captain, applied twice for vacant posts at the rank of superintendent. Even though she was recommended for both posts she was turned down by the South African Police Service (SAPS) National Commissioner because her promotion would not advance SAPS's equity goals.

Barnard subsequently referred an unfair discrimination dispute to the Labour Court which found in her favour. The aforementioned decision was later overturned by the Labour Appeal Court.

Barrier for advancement

After having considered the Employment Equity Act No 55 of 1998 (EEA), the SCA noted that even though the SAPS had adopted an equity plan which set demographic targets for the workforce, it nevertheless stated that no employment policy or practice would be adopted if such policy would create an absolute barrier to the advancement of non-designated employees. The aforementioned consideration was substantiated by the fact that instructions issued by the SAPS national office highlighted the need to take both equity and strategic objectives into account and for selection panels to promote equal opportunities, fair treatment, employment equity and advance service delivery.

In considering the facts, the SCA had regard to inter alia the fact that:

• the posts were not advertised as being reserved for applicants from designated groups;
  
• the employee had scored the highest of the short-listed candidates for the first post; and
  
• a circular issued by head office encouraged interview panels to appoint officers who would enhance service delivery.

The SCA had regard to both the Constitution and the EEA and stated that the defender of an disputed measure must prove that it was adopted to advance the achievement of equality by protecting or advancing persons disadvantaged by unfair discrimination.

According to the SCA, it is incumbent on the courts to assess the history, nature and purpose of the discriminatory practice as well as the situation of the complainants. The fairness of the discrimination in this case was therefore to be assessed in the light of its impact on the employee.

Violation of equity plan

To the extent that the SAPS had defended its decision on the basis that the employee's promotion would violate the SAPS equity plan, the SCA held that in the light of that plan, as read with the law, it could never be contended that numerical targets are absolute criteria for appointment. Should this be done, it would turn numerical targets into quotas, which are prohibited.

According to the SCA there are no victors or vanquished in matters such as this. It concluded by stating that "For now, ironically, in order to redress past imbalances with affirmative action measures, race has to be taken into account. We should do so fairly and without losing focus and reminding ourselves that the ultimate objective is to ensure a fully inclusive society - one compliant with all facets of our constitutional project."

Accordingly, the appeal was upheld with costs.