South African Police Service v Solidarity obo Barnard

• Jurisdiction: South Africa
• Citation: 2014 (6) SA 123 (CC)

South African Police Service v Solidarity obo Barnard
2014 (6) SA 123 (CC)

2014 (6) SA p123

Citation	2014 (6) SA 123 (CC)
Case No	CCT 01/14; [2014] ZACC 23
Court	Constitutional Court
Judge	Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt AJ, Van Der Westhuizen J and Zondo J
Heard	March 20, 2014
Judgment	September 2, 2014
Counsel	H Maenetje SC (with J Bleazard) for the applicant.; M Brassey SC (with M Engelbrecht) for the respondent.; V Ngalwana (with F Karachi) for the amicus curiae (the Police and Prisons Civil Rights Union).

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Right to equality — Right not to be unfairly discriminated against — Restitutionary measures — Affirmative action C — Constitutionality — Measures and implementation — Court's right to test — Impact on human dignity.

Labour law — Employment equity — Affirmative action — Constitutionality — Measures and implementation — Refusal by police to promote white female officer on basis that it would be inconsistent with their employment equity plan — Not amounting to unfair discrimination. D

Headnote : Kopnota

This case concerned the constitutionality of affirmative-action measures and whether their implementation would amount to unfair discrimination.

Lieutenant-Colonel Barnard, a white female police officer, twice applied for and E was twice refused promotion to a specialised SAPS unit despite having been identified as the best candidate for the position. The SAPS justified its decision (made by the national commissioner) by arguing that according to its employment equity plan, which set numerical norms based on national demographics, white women were already over-represented at that salary level. The post was subsequently scrapped on the ground that it was 'non-critical' and the vacancy 'would not affect service delivery'. Barnard F alleged that she was denied promotion solely because she was white and that this amounted to unfair discrimination.

The Labour Court found in Barnard's favour, but in an appeal the Labour Appeal Court held that there was no discrimination because the vacancy was not filled. In a further appeal the SCA concluded that the SAPS did not G discharge the presumption of unfairness attracted by Barnard's claim and ruled in her favour. In a further appeal the Constitutional Court delivered four judgments unanimously upholding the appeal.

Majority judgment (per Moseneke ACJ, with Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J, Madlanga J and Zondo J concurring):

The applicable law: The Constitution had a transformative agenda to H achieve substantive equality, and measures directed at remedying past discrimination were therefore in principle fair and constitutionally sound, provided that the principle of legality was observed and the human dignity of those affected not unduly compromised. Once a measure passed constitutional muster as one designed to benefit a previously disadvantaged class I of person, it was neither unfair nor presumed to be unfair, though its legality could be tested by the courts. Validly adopted affirmative-action measures had to be lawfully implemented, and this could also be tested by the courts. (Paragraphs [29] – [39] at 136B – 138F.)

The SCA judgment: The SCA erred in adjudging Barnard's claim as one of unfair discrimination on the ground of race and then, applying the Harksen J

2014 (6) SA p124

A test, [*] concluding that the SAPS did not rebut the presumption of unfairness. It misconceived the issue before it as well as the controlling law. Since the decision not to promote Barnard was taken under the SAPS' employment equity plan — a restitutionary measure — the SCA had been obliged to approach the matter through the prism of s 9(2) of the Constitution. The B SCA had wrongly burdoned the SAPS with an onus to dispel a presumption of unfair discrimination. Since the SCA decided the matter on the wrong principle, the appeal would succeed on this ground alone. (Paragraphs [48] – [53] and [58] – [60] at 141A – 142D and 143D – 144C.)

The lawfulness of the commissioner's decision: Although the issue was raised for the first time on appeal and thus not properly before the court, it C was clear that the commissioner had acted rationally and with due regard to the criteria in the employment equity plan and ancillary regulations. (Paragraphs [61] – [70] at 144C – 147C.)

First concurring minority judgment (per Cameron J, Froneman J and Majiedt AJ):

D The standard applicable to the individual implementation of affirmative-action measures: fairness: The EEA required, besides rationality, fairness. This meant that the decision-maker had to give adequate reasons for his decision, particularly if it were based on race. Although the commissioner did not explain why he regarded representivity as more important than service delivery, his decision passed the fairness standard E because the over-representation of white women at the salary level to which Barnard had applied justified the prioritising of racial representivity over other considerations. (Paragraphs [94] – [98], [102], [106], [111] – [116] and [121] at 154H – 156E, 157D – E, 158D – E, 160E – 161F and 162E – F.)

Second concurring minority judgment (per Van der Westhuizen J):

F The nature of Barnard's claim: Barnard's claim was a bid to set aside the commissioner's decision on the ground that it was unlawful. (Paragraph [133] at 166C – F.)

The lawfulness of the equity plan and the commissioner's decision: Both the plan and its implementation by the commissioner passed muster G on the three-prong test [†] for the constitutionality of a restitutionary measure. In particular, the commissioner's decision promoted the achievement of equality. (Paragraphs [133] – [156] at 166C – 172E.)

The impact of the decision on Barnard's dignity: Since the implementation of the measure did not either treat Barnard as a mere means to H achieve an end nor amounted to an absolute barrier to her advancement, the impact on her dignity was not excessively restrictive and was indeed outweighed by the restorative goal of the measure. (Paragraphs [180] – [183] at 180H – 181G.)

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Public interest in service delivery: There was insufficient evidence to A show that it was disproportionate for the commissioner to rank representivity higher than the possible impact of the decision on service delivery. (Paragraph [189] at 183C – F.)

The sufficiency of the reasons given by the commissioner: Though they could have been better formulated, the reasons were adequate because B they gave Barnard enough information to understand why she was not appointed. (Paragraph [194] at 185C – 186B.)

Third concurring minority judgment (per Jafta J, with Moseneke ACJ concurring):

The nature of Barnard's claim: new cause of action: A party was C obliged to plead its case in the court of first instance. While she sought relief from unfair discrimination in the Labour Court, she then sought to introduce a constitutional complaint that was not pleaded, namely the validity of the commissioner's decision. This was impermissible, and the Constitutional Court would not determine it. (Paragraphs [197] and [210] – [212] at 186E – G and 189D – 190A.) D

The SCA judgment: The SCA approached the matter on an incorrect footing and applied the wrong test. The Harksen test did not apply where, in defending a claim of unfair discrimination, the defendant argued that the impugned decision was taken in the furtherance of a restitutionary measure as contemplated in s 9(2) of the Constitution. (Paragraph [208] at 188H – 189B.) E

Fairness as a standard for the implementation of restitutionary measures: Fairness as a standard could not be sourced in the EEA and even if it could, its introduction would undermine s 9(2) of the Constitution. The issue of an appropriate standard for affirmative-action measures was in any event not properly raised and best left for another day. (Paragraphs F [216] – [233] at 190G – 195B.)

Cases Considered

Annotations

Case law G

Southern Africa

Associated Institutions Pension Fund and Others v Van Zyl and Others2005 (2) SA 302 (SCA) ([2004] 4 All SA 133; [2004] ZASCA 78): referred to

Barkhuizen v Napier2007 (5) SA 323 (CC) (2007 (7) BCLR 691; [2007] ZACC 5): dictum in para [39] applied

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others H 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): dictum in paras [74] – [76] applied

Bel Porto School Governing Body and Others v Premier, Western Cape, and Another2002 (3) SA 265 (CC) (2002 (9) BCLR 891; [2002] ZACC 2): referred to

Bernstein and Others v Bester and Others NNO1996 (2) SA 751 (CC) I (1996 (4) BCLR 449; [1996] ZACC 2): referred to

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening)2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22): referred to

Coetzer and Others v Minister of Safety and Security2003 (3) SA 368 (LC): referred to J

2014 (6) SA p126

CUSA v Tao Ying Metal Industries and Others2009 (2) SA 204 (CC) (2009 (1) BCLR 1; [2009] 1 BLLR 1; (2008) 29 ILJ 2461; [2008] ZACC 15): dictum in para [67] applied A

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others2000 (3) SA 936 (CC) (2000 (8) BCLR 837; [2000] ZACC 8): referred to

Du Preez v Minister of Justice and Constitutional Development and Others2006 (5) SA 592 (EqC): referred to B

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd2012 (1) SA 256 (CC) (2012 (3) BCLR 219; [2011] ZACC 30): dictum in para [52] applied

Ferreira v Levin NO and Others;...