The role of affirmative action and the rational implementation of an employment equity plan (EEP) have once again come into the spotlight and may soon be argued before the Constitutional Court. Recently, the Supreme Court of Appeal (SCA) judgment of Solidarity obo Barnard v SAPS expressed frustration with the manner in which the case was litigated by the employer, SAPS. The SCA overruled the judgment of the Labour Appeal Court and ordered that Barnard receive monetary compensation for the unfair discrimination she suffered when she was not appointed to the role of superintendent. The SAPS has decided to refer the matter for appeal to the Constitutional Court.

Earlier this year in the case of Munsamy and Naidoo, the South African Police Service (SAPS) was also forced to defend its implementation of affirmative action. In both instances the Labour Court found that unfair discrimination had occurred and that the SAPS was not entitled to rely on the defence of affirmative action. In the SCA judgment of Barnard, the Court made clear that it will not tolerate employers who seek to veil discriminatory practices under the guise of affirmative action. Calling a particular employment decision “affirmative action” is therefore not sufficient to qualify as a defence against unfair discrimination. To qualify as a defence, certain requirements must be met.

Barnard concerned the refusal by the National Commissioner of Police to confirm the appointment of Captain Barnard, a white female, to the position of superintendent in a specialised unit of the SAPS. Barnard had twice before applied for the position and on both occasions was unsuccessful despite obtaining the highest score by the interview panel. The interview panel admitted that Barnard was the best candidate for the position and displayed the necessary passion for the position, and commitment to the SAPS. The National Commissioner nevertheless declined to fill the post and recorded that that this refusal was based, firstly, on the fact that to do so would fail to address representivity in the SAPS and, secondly, that the post was not critical and the non-filling of the post would not affect service delivery within the organisation.

Barnard filed a complaint in terms of the SAPS grievance procedure and, followed by a referral to the CCMA, the unfair discrimination application was instituted in the Labour Court. Barnard urged that she was not successful solely because she is white and that this conduct on the part of SAPS constituted unfair discrimination. Barnard was successful in the Labour Court, unsuccessful in the Labour Appeal Court and ultimately successful in the SCA.

The SCA dismissed each of the Labour Appeal Court’s findings. The SCA was scornful of the manner in which the SAPS had defended the discrimination application and emphasised that the onus in an application alleging unfair discrimination is on the employer to show that the alleged unfair discrimination is fair. The evidence led by the SAPS was either inadmissible or largely irrelevant, and could therefore not be relied upon in defence of the unfair discrimination claim.

The SCA concluded that “it can hardly be contested” that Barnard was not appointed because she was a white female and that the Labour Appeal Court, in finding that there had been no discrimination, had erred. The Court emphasised that it is incumbent on courts to scrutinise the situation of complainants in each equality claim, taking into account their history and vulnerability; the history, nature and purpose of the discriminatory practice; and, whether it ameliorates or adds to group disadvantage in a real life context in order to determine its fairness. In this way, the SCA affirmed that any decision determined on the basis of an individual’s race will negatively affect their constitutional right to dignity and the action must therefore be justified and fair.

In this way the Supreme Court clarified that substantive equality, reflected in section 9(1) of the Constitution, is the benchmark that distinguishes unfair discrimination from constitutionally sanctioned affirmative action, reflected in section 9(3) of the Constitution read together with the Employment Equity Act, 1998.

The judgment is important in that makes clear that an affirmative action measure will only comply with the constitutional requirements for substantive equality if it meets the rationality and fairness requirements contained in the constitutional right to equality. The Supreme Court stated that this requires meticulous scrutiny – something the Labour Appeal Court neglected to do. The Supreme Court also dismissed the Labour Appeal Court’s finding that the SAPS EEP was not an absolute legal barrier to Barnard’s appointment. The Supreme Court noted that it was never contended, nor could it be, that numerical targets and representivity are absolute criteria for appointment – such an approach would indeed turn the targets into inflexible quotas.

As expressed in the case of Munasamy and Naidoo, employers may not act in an arbitrary way in applying affirmative action. An affirmative action measure must therefore be rational in that it must “make sense”. An affirmative action measure must furthermore be fair – as expressed by the SCA, it must be “situation specific”.

The Court will carefully weigh up all competing rights and interests so as to ensure that the measures adopted are proportionate to achieving an equitable workforce. In assessing whether this is so, factors such as the complainant’s role in society and the purpose of the affirmative action measure must be considered.

The inability by an employer to act in a rational and fair (or situation-sensitive) manner creates a real danger of perverse race and gender rivalry and may “produce in consequence confrontation and alienation and will, in the long run, undermine the promotion of substantive equality and the creation of a non racial and non sexist society” (Naidoo judgment). It is now for the Constitutional Court to decide whether to grant leave to appeal and, if so, to determine the legality of the manner in which SAPS has carried out its employment equity plan.