South African Police Service vs. Solidarity obo Barnard

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Table of Contents

Introduction
Facts
Litigation History
Decision
Case Analysis
References

Introduction

The title of the case is South African Police Service v Solidarity obo Barnard. South African Police Service is the applicant; Solidarity on behalf of Captain Renate M. Barnard is a respondent; Police and Prisons Civil Rights Union is a friend of the court (amicus curiae). The case was decided by the Constitutional Court of South Africa on 2 September 2014.

The issues under consideration are equality and racial discrimination in the workplace. The primary concern is that the South African Police Service decided not to promote Ms. Barnard on the ground of her race. Legal acts violated are section 9(3) of the Constitution encouraging equality and prohibiting unfair discriminatory actions and section 6(1) of the Employment Equity Act as well forbidding unfair discrimination in the process of employment and during work. The major question is the following: was the National Commissioner’s decision not to promote a white woman, Ms. Barnard, a manifestation of unfair discrimination in employment?

Facts

Ms. Barnard is a member of Solidarity, a registered trade union, which represented her in litigation. She wanted to fill the promotion position of the superintendent advertised by the National Inspectorate aimed at improving the quality of delivering services of the Police Service to the public. The occupation was advertised in September 2005. In November, interviews of the applicants took place. They were interviewed by the board of six senior police officers. The board was racially diverse to avoid prejudice and discrimination.

Ms. Barnard was recommended as the number one applicant to fill the position of the superintendent because she earned the highest score among those interviewed – 86.67%. Regardless of it, she was not appointed. The justification for this decision was that the black men and women were underrepresented in the relating division and that the division should not be overcrowded with women at the offered level of salary. For this reason, it would be better to appoint one of the other applicants with the best results (they were White men) not to exacerbate the problem of racial homogeneity in the division. The position was filled with a white man.

Six months later, in May 2006, a similar vacancy was advertised. Ms. Barnard applied again and once more was shortlisted to be interviewed in June 2006. This time, she was shortlisted with seven other applicants: four African men; one African woman; one Colored man, and one White man (South African Police Service v Solidarity obo Barnard, 2014). The board of interviewers was again made up of racially diverse senior police officers, and Ms. Barnard again obtained the highest score. The second-best applicant had a result that was 7.33% lower than Ms. Barnard’s (he was a Black man). This time, she was rejected to fill the vacancy because she was already employed in the division, and appointing her to a new position would create the need to fill her occupation. In addition to it, Ms. Barnard still did not comply with the requirement of representativity. The second-best applicant was not appointed for the same reason.

Litigation History

Ms. Barnard decided not to apply again. Instead, she filed a complaint under the Police Service’s grieving procedure. Later, she referred to the Commission for Conciliation, Mediation, and Arbitration (CCMA) claiming that she has become a subject of unfair discrimination. The case remained unresolved because the representatives of the Police Service did not show up to the conciliation meeting even though notified. Then she decided to approach the Labor Court. It upheld a claim noting that the cases of unfair discrimination should be explained in detail, and Police Service’s evidence was insufficient. Nevertheless, the Court agreed that the decision not to promote Ms. Barnard was justifiable because the representativity requirements were to be met. Because of such a decision, Ms. Barnard decided to approach the Supreme Court of Appeal. However, it supported the Labor Court’s decision but specified that the Police Service should pay compensation to Ms. Barnard for two years. Thereafter, she decided to file a lawsuit to the Constitutional Court of South Africa in the hope of proving that the National Commissioner’s decision not to promote her was a manifestation of unfair discrimination in employment.

Decision

The Court has settled that the decision not to promote Ms. Barnard was not a manifestation of unfair discrimination. It was justifiable because the National Commissioner acted under the employment instructions and followed employment equity targets. Because salary level 9 was overcrowded with women, and Ms. Barnard was aware of it, the outcome would not have been different. Moreover, the order for compensation of the Supreme Court of Appeal should be set aside.

That said, as of violating Section 9 of the Constitution, the case implies restitutionary measures. As of Employment Equity Act 5 of 1988, affirmative action measures should be taken to the designated employer (South African Police Service v Solidarity obo Barnard, 2014).

Case Analysis

It is significant to understand the nature of restitution and affirmative action measures to analyze the judge’s decision. They are usually taken to foster equality and protect those disadvantaged by unfair discrimination. However, it is vital to be aware of the limitation of restitutionary measures in South Africa. First of all, the Constitution does not state that everyone has the right to equality. Instead, equality is seen as a value that should be achieved concerning human dignity (Venter, 2004). The Constitution states that everyone is equal, but later it is determined that the disadvantage of discrimination measures may be taken to reach numerical targets of equity plans designed by organizations (Amar & Tushnet, 2009). Moreover, there is a provision that discrimination is not considered unfair unless its fairness is proved by a discriminator or established by the state (Constitution of the Republic of South Africa, 1996).

Affirmative or positive action measures are usually taken in the case of indirect discrimination. Indirect discrimination is often a representation of criteria for employment without regard to an individual’s skills and competence (O’Cinneide, n.d.). In most cases, these criteria refer to establishing a particular limitation on the number of workers of a particular race or gender. If such criteria are determined by the law or the organization’s statutes, it is impossible to take measures to fight discrimination because they are usually used for justifying it and proving that it was fair. Because affirmative action measures are used for further promotion of diversity in the workplace, in the case of Ms. Barnard, implied excluding Ms. Barnard from the promotion (Commission for Employment Equity annual report 2014-2015, 2015).

In South African Police Service, the employment equity plan followed by the National Commissioner was designed to avoid over-crowding, i.e. dominance, of people of particular races or gender occupying particular positions or a particular salary level. It is a usual practice followed by all organizations and entities in the country. That said, it is determined at the legal level that the dominant group of those employed should involve African people (almost 75% of employees) with 41.7% of males and 34.6% of females (Commission for Employment Equity annual report 2014-2015, 2015). These are the medium figures among the equity plan designed by South African organizations, but they represent the overall trend in the country’s economy because the focus is made on employing the native population with priority to men. These equity plans are adopted every year. Moreover, every organization is obliged to report following the established requirements.

In conclusion, it can be said that this legal case might have potential social implications. It might become beneficial for both applicants and employers. For employers, studying the case might bring the understanding that it is vital to provide detailed and sufficient justification of their decisions once required by the applicant because it might help them avoid spending and scars upon their good names. If Ms. Barnard has not decided to approach the Constitutional Court of South Africa, the Police Service would have to pay her compensations. As for the applicants, this case is evidence of the necessity to conduct some research on legislation and the situation in the potential employer’s office and their equity plans to avoid similar undesirable outcomes. If Ms. Barnard realized that the Police Service is obliged to follow employment equity targets, she would have avoided this unpleasant situation.

References

Amar, V. D., & Tushnet, M. V. (2009). Global perspectives on constitutional law. Oxford, NY: Oxford University Press.

Commission for Employment Equity annual report 2014-2015. (2015). Web.

Constitution of the Republic of South Africa. (1996). Web.

O’Cinneide, C. (n.d.). Positive action.Web.

South African Police Service v Solidarity obo Barnard. (2014). ZACC 23. Web.

Venter, F. (2004). The limitations of restitutionary equality. Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad, 7(1), 1-26.

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