Justices fail to give a legal test for implementing equity fairly

Seeking remedy: The limitations of Renate Barnard's challenge could explain the justices' lack of clarity. (Gallo)

Seeking remedy: The limitations of Renate Barnard's challenge could explain the justices' lack of clarity. (Gallo)

Questions about equality, race and equity in the workplace are difficult and emotive, Deputy Chief Justice Dikgang Moseneke said in his introduction to the majority judgment of the Constitutional Court in South African Police Service vs Solidarity. The hearing was the final instalment in a case that had vexed three previous courts.

Captain Renate Barnard was twice denied promotion by the national commissioner of police after she had obtained the highest score of all applicants for the advertised posts. On the second occasion, she had applied for a level nine post.
She got the highest overall assessment mark, more than 7% higher than the next most suitable candidate, a Captain Mogadima. The interviewing panel recommended that she be promoted.

But the commissioner declined to. He said the recommendation did not address the problem of representivity and if the post was not filled, it would not compromise service.

This was a bridge too far for Barnard, and she filed a grievance with the South African Police Service (SAPS). When this proved unsuccessful, she approached the Commission for Conciliation, Mediation and Arbitration and finally the Labour Court on the grounds that she had been unfairly discriminated against on the grounds of race.

She was successful at the Labour Court but that judgment was overturned by the Labour Appeal Court.

Barnard then appealed to the Supreme Court of Appeal (SCA). It held in her favour, finding that she had suffered unfair discrimination and that the national commissioner had provided no plausible reason as to why his decision was fair.

The Constitutional Court disagreed, mainly because the SCA had not dealt with sufficient precision with the facts.

Moseneke referred to an employment equity plan, adopted by the SAPS in 2001, which set out numerical employment equity targets. By 2004, this plan had been refined: it provided criteria to be considered by selection panels, but subject to the overriding discretion of the national commissioner.

Of critical importance to the outcome of Barnard’s case, she did not contest this plan, thus accepting its lawfulness. Hence the SCA was not entitled to find the plan suspect and consequently unfair.

The only issues the court was required to determine was that the national commissioner had made an unlawful and unreasonable decision. He had not taken sufficient account of her competence, he had given undue weight to demography, and had not provided detailed reasons for his ultimate decision.

The problem for Barnard was that the court had to determine the case within the framework of an equity plan regarded as lawful and that gave the commissioner wide discretion. He had argued that her promotion would worsen representivity at level nine and that not appointing someone would not compromise service.

The Constitutional Court noted that Mogadima also scored way above average but was not appointed. Furthermore, Barnard conceded that service had not been compromised, that the post was never filled and that, later, the entire division was reconfigured and the advertised post abolished. The court also found that the SAPS’s record in pursuing targets was not rigidly and inflexibly executed, in that there was already a pronounced over-representation of white women at level nine.

Three justices, Edwin Cameron, Johan Froneman and Steven Majiedt, agreed with the deputy chief justice’s order but held that the standard to assess remedial measures could not be reduced to rationality alone. This kind of decision may not be justified by the rote application of numerical targets. The test, they said, must be one of fairness: both the general formulation of a plan and the proposed remedial measures must be fair, as must the manner of implementation.

Unfortunately, the three justices said little more about the proposed test. This is unhelpful to the legal community, which must advise on the constitutional compliance of a remedial plan. Justice Johann van der Westhuizen alone provided guidance, suggesting that dignity should be the basis of the test for the constitutionality of a remedial measure.

He observed that, because apartheid was a criminal violation of the dignity of millions of South Africans, the Constitution provided for measures to achieve equality and thus restore dignity. But the “practical implementation” of any such measure, he said, could have an impact on “the human dignity of individuals”. The test for constitutional compliance should focus on this.

Remedial measures – affirmative action – are a key part of the constitutional push towards the attainment of equality. That the Constitutional Court failed to provide a clear, understandable test for determining the legality of a proposed measure is unfortunate but may be explained by the limited nature of the case brought by Barnard. The nation awaits a legal exposition applicable to such cases and the often controversial remedial measures taken.

The need to bring clarity to the best way to test such plans is required. It is likely that the Barnard case is not the last time remedial measures will be challenged in court.

Serjeant at the Bar

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