Court outlaws racial quotas in Renate Barnard case

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The case has far-reaching implications for the public service as several departments use rigid demographic quotas to determine placements and promotions.

It also clarifies the interpretation of the Employment Equity Act‚ which has been fiercely debated by the public in recent weeks‚ with claims made by the Democratic Alliance (DA) that the law enforces racial quotas. The judgment points out that the law specifically prohibits the use of quotas.

The case was brought by trade union Solidarity on behalf of police Capt Renate Barnard who was twice denied promotion on the grounds of race‚ despite being the strongest candidate. She was recommended by the interviewing panel as the best candidate both times but was rejected by the national commissioner on the grounds that white women were already over-represented in the occupational category. Instead the commissioner chose not to appoint anyone.

On a third occasion when Capt Barnard applied for the same job‚ the post was withdrawn.

Barnard's victory

She has fought the case for the past eight years‚ winning a case of unfair discrimination in the Labour Court in 2010. The Labour Appeal Court overturned the judgment two years later.

Last week's judgment by a full bench of the SCA was unanimous. The court ordered that her costs be paid and that the South African Police Service (SAPS) compensate her for loss of income.

Solidarity's head of the Centre for Fair Labour Practices‚ Dirk Groenewald‚ said the union had 12 additional cases of a similar nature against the SAPS.

Solidarity executive officer Dirk Hermann described the ruling as "a huge victory for Solidarity and Capt Barnard".

The court found that if an employer's numerical employment equity targets effectively become quotas‚ unfair discrimination will result.

"Against the statutory background and the policy documents‚ it was never contended‚ nor could it be‚ that numerical targets and representivity are absolute criteria for appointment. Adopting that attitude would turn numerical targets into quotas, which are prohibited in terms of the Employment Equity Act‚" the judgment said.

Quotas cannot be applied

Section 15 (3) of the Employment Equity Act of 1998 states that the equity measures that an employer must implement "include preferential treatment and numerical goals‚ but exclude quotas". The act was amended last month by the Employment Equity Amendment Bill. In the amendment bill‚ section 15 (3) - which the SCA describes as "prohibiting quotas" - is unaltered.

Law specialist firm Cheadle Thompson and Haysom director Paul Benjamin said that several Labour Court judgments had made similar findings. "Where targets that are flexible are applied as rigid quotas‚ the court has in the past struck them down‚" he said.

A host of misconceptions have surrounded the processing of the amendment bill‚ particularly that it introduces a system of racial quotas.

Amendments

The DA and several commentators argued that this was the case on the grounds of amendments made to section 42‚ which removed some of the criteria for assessing compliance‚ such as the need to make reference to the pool of suitably qualified people. However‚ these criteria are replaced in the same section with a general "catch-all" phrase which would require a court to consider a broad range of criteria - including the availability of skills - when deciding if an employer has complied with employment equity legislation.

The SCA judgment‚ written by Judge Mohammed Navsa‚ said while attempting to create a nonracial society "it feels like a throw back to the grand apartheid design" to deal with race classifications.

However‚ he appealed to people on all sides of the divide to do their utmost to overcome past inequalities in a fair manner. "If we are to achieve success as a nation‚ each of us has to bear in mind that wherever we are located‚ it will take a continuous and earnest commitment to forge a future that is colour blind. This necessarily includes serious and sustained efforts in order to build a cohesive and potentially glorious rainbow nation. 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 the constitutional project," Navsa said.