South African Police Service v Solidarity obo Barnard (unreported case no ZACC23, 2-9-2014) Moseneke ACJ (Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J, Madlanga J and Zondo J concurring)

By Moksha Naidoo

On two separate occasions Barnard, a white female, applied for a promotion within the ranks of the South African Police Service (SAPS). On both occasions she obtained the highest score from the respective interviewing panels and was recommended for the posts applied for.

On the first post Barnard applied for, the Divisional Commissioner did not support her recommendation for reasons relating to equity but on the second occasion the Divisional Commissioner wrote to the National Commissioner supporting Barnard’s recommendation.

In a written response the National Commissioner declined the recommendations on the basis that Barnard’s appointment would not enhance representivity and that service delivery would not be affected should the post not be filled. The National Commissioner directed that the post be re-advertised during the following promotion phase.

Litigation history

Barnard referred an unfair discrimination dispute to the Labour Court alleging she had not been promoted because she was white and that such discrimination was not justified in terms of any lawful restitution measures. In its defence the SAPS relied on the following four grounds; firstly, the National Commissioner acted within the framework of the SAPS equity plan together with the relevant national instructions and as such, his decision was on valid ground. Secondly, Barnard’s claim was misplaced on the basis that the post had been withdrawn and thus no one had been treated differently as compared to another. Thirdly, the decision to appoint a person rests with the National Commissioner who was not bound by any recommendation and lastly, Barnard did not seek to review the National Commissioner’s decision.

The Labour Court in Solidarity obo Barnard v SAPS [2010] 5 BLLR 561 (LC) per Pretorius AJ upheld Barnard’s claim with costs. The court held that the SAPS had failed to discharge its statutory onus of establishing the discrimination was fair. In this regard the court held that the reasons provided by the National Commissioner were ‘scant’ and ‘insufficient’.

This decision was overturned by the Labour Appeal Court (LAC) in South African Police Service v Solidarity obo Barnard [2013] 1 BLLR 1 (LAC). In his judgment Mlambo JA (Davis JA and Sandi AJA concurring) held that no discrimination had occurred as no appointment had been made. In addition and on the assumption Barnard had been discriminated against, the LAC found that such discrimination was fair. The court held that to subject the implementation of affirmative action measures to the individual’s right to equity would stifle the purpose of such measures and perpetuate inequality in the workplace.

In a unanimous judgment delivered by the Supreme Court of Appeal (SCA) in Solidarity obo Barnard v South African Police Service 2014 (2) SA 1 (SCA), the SCA upheld Barnard’s appeal and in effect reinstated the Labour Court’s ruling. (See 2014 (March) DR 48.)

The SCA found that Barnard had not been appointed to the post because she was white and this then triggered a shift in onus to the SAPS to justify its decision as one which is fair and lawful. On an account of the National Commissioner’s reasoning for not promoting Barnard, which the court held to be ‘scant’ and ‘contrived’, the SCA found the SAPS had failed to discharge its onus and as a result thereof, ruled that Barnard was subjected to unfair discrimination.

The SAPS turned to the Constitutional Court.

The Constitutional Court acknowledged that restitution measures must be legitimate measures that advance those who have suffered past discrimination without unduly invading the human dignity of those who are affected by such measures. A restitution measure is deemed unfair until the authority implementing it proves that it is fair. In deciding whether the measure is fair the courts have the power to interrogate whether it serves a legitimate purpose that seeks to achieve the constitutional objective. Once a court is satisfied that the measure in question is for legitimate reasons then the measure is deemed fair.

Furthermore, once a court determines the restitution measure is fair, it can further pronounce on whether the measure was fairly applied or implemented. Put differently there is nothing in law that would prevent a court from determining whether a valid restitution measure was implemented fairly without an ulterior or impermissible purpose. In making this determination a court would apply the doctrine of legality, to ensure the measure was rationally and fairly applied.

Having made this point the majority of the Constitutional Court found that the SCA had misconceived the legal issue before it as well as the ‘controlling laws’.

The SCA applied a test that sought to determine whether the restitution measures (in casu the SAPS equity plan and relevant national instructions), were fair or not under circumstances were Barnard had never alleged or challenged such measures as being unfair.

On this point the court held: ‘The respondent readily accepted this position in this Court. She never pressed upon us to endorse the reasoning of the Supreme Court of Appeal. Ms Barnard accepted that the Employment Equity Plan in question was a valid affirmative action measure. Equally, she did not impugn the validity of the Instruction. She never contended that either of the two were suspect and should have attracted a presumption of unfairness. None of the parties contended otherwise nor can I find a valid reason to hold that the Employment Equity Plan and the accompanying Instruction are not affirmative action measures authorised by section 6(2) of the Act.

Accordingly, there was no warrant for the Supreme Court of Appeal to burden the applicant Police Service with an onus to dispel a presumptively unfair discrimination claim and find that it had not discharged it. The appeal in that Court was therefore decided on the wrong principle.’

However, this did not dispose of the matter. In submissions before the court Barnard argued that the National Commissioner’s decision was both unreasonable and unlawful, which stood to be set aside. In support of this Barnard argued that the National Commissioner attached undue weight to demographic equity at the expense of her competency and merit, furthermore his reasons for not appointing her were inadequate as the National Commissioner failed to make mention of which factors, as listed in the national instruction, he took into account when making his decision.

In response the court held that this was a new cause of action that had not been initially pleaded. The court reiterated that in proceedings before the Labour Court the SAPS, as part of its defence, specifically stated that Barnard had not sought to review the National Commissioner’s decision; this remained unchallenged and was only brought up at the final stage of the appeal. Accordingly the court held that it could not entertain such a claim.

Having made this point, the court nevertheless held that it would have dismissed Barnard’s argument had she made out this case in her statement of claim. In applying the doctrine of legality to the discretion afforded to the National Commissioner as contained in the national instructions, there was nothing to conclude that in exercising his discretion not to appoint Barnard and to withdraw the post, the National Commissioner did so unlawfully.

The court upheld the appeal and confirmed the order of the LAC. On the issue of costs the court held that parties were liable for their own costs at the lower courts as well as costs incurred at the Constitutional Court.

In a separate judgment penned by Cameron J, Froneman J and Majiedt AJ, the court reached the same conclusion but for different reasons.

Unlike in the main judgment the minority judgment held that the court was competent to hear Barnard’s argument raised before it – Barnard’s claim was for unfair discrimination and it would be impossible to evaluate such a claim without interrogating the reasons for the National Commissioner not appointing her.

Before doing so the judges warned that when applying a restitution measure too rigidly, the outcome or result could be inconsistent with the very purpose of the Employment Equity Act 55 of 1998 (EEA); for example a measure that seeks to redress racial inequality, when applied rigidly, could unduly aggravate gender inequality and in so doing, be inconsistent with the overall purpose of the EEA.

In agreeing with the main judgment, the minority held that a court was competent to adjudge the implementation of restitution measures. However, the minority differed in terms of which standard to use when doing so. The main judgment held that the appropriate standard is that of rationality and lawfulness. The minority held that in addition to this, the appropriate statutory standard was that of fairness.

In applying this standard one must consider all factors, including the reasons provided by the National Commissioner for not appointing Barnard. Despite finding that such reasons are inadequate, the minority nevertheless held that there were external factors that rendered the National Commissioner’s decision fair. This included the fact that there was an overrepresentation of white females at the post Barnard applied for, which meant that the National Commissioner could place more weight on racial targets as opposed to any other considerations he was bound to consider when making his decision.

Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

This article was first published in De Rebus in 2014 (Nov) DR 47.