Tomorrow at 10.00 the Constitutional Court will deliver its judgment on an application by the South African Police Service (SAPS) for leave to appeal against the judgment and order of the Supreme Court of Appeal (SCA) in Solidarity obo Barnard v SA Police Service [2014] 2 BLLR 107 (SCA). The SCA held that SAPS discriminated against Ms Barnard unfairly when it refused or failed to appoint her to the position of police Superintendent.
Background
Since 1989 Ms Barnard has been a member of SAPS. Following a promotion to the rank of Captain and a number of years of service as the station commander, she was laterally transferred to the SAPS National Evaluation Services (NES). In September 2005, the National Commissioner of Police advertised a promotion position within the NES. The job description entailed the evaluation and investigation of national complaints.
Ms Barnard applied twice for this position. Despite being shortlisted, interviewed and recommended as the best suited candidate, she was unsuccessful both times. The National Commissioner’s reasons for not appointing Ms Barnard were that it would not enhance racial representivity at that particular salary level and that the post was not critical (and so it was not necessary for someone to be appointed immediately).
Ms Barnard lodged an internal grievance against her non-appointment. Her attempt to resolve the matter at the CCMA was unsuccessful.
Labour Court
In Solidarity obo Barnard v SA Police Service [2010] 5 BLLR 561 (LC) acting justice Paul Pretorius found in favour of Ms Barnard. He held that the National Commissioner’s decision not to promote her and to leave the post vacant was not a fair and appropriate method of implementing the SAPS Employment Equity Plan. Further, SAPS had not given sufficient reasons for the National Commissioner’s decision and therefore did not discharge its onus to establish that the decision was rational and fair.
Labour Appeal Court
On appeal, SA Police Service v Solidarity obo Barnard [2013] 1 BLLR 1 (LAC) the Labour Appeal Court (LAC) reversed that decision. The LAC found that the implementation of restitutionary measures is not subject to an individual’s right to equality. The decision not to promote Ms Barnard was not defective because the National Commissioner was not obliged to fill the advertised post.
Supreme Court of Appeal
In Solidarity obo Barnard v SA Police Service [2014] 2 BLLR 107 (SCA) Ms Barnard’s appeal was upheld, finding that there was no rational or proffered explanation from SAPS for its failure to promote Ms Barnard. SAPS discriminated against Ms Barnard unfairly when it refused or failed to appoint her to the position of police Superintendent. SAPS did not rebut the presumption of unfairness and the failure to appoint Ms Barnard amounted to unfair discrimination on the basis of race.
Constitutional Court
On Thursday 20 March 2014 the Constitutional Court heard an application for leave to appeal against the judgment and order of the SCA in Solidarity obo Barnard v SA Police Service [2014] 2 BLLR 107 (SCA). SAPS contended that, because the decision involved representivity considerations and remedial measures, the SCA erred in applying the unfair discrimination test. To the extent that the SCA placed an undue onus on SAPS to prove that not appointing Ms Barnard was fair it was incorrect, argued SAPS.
Ms Barnard contended that the National Commissioner failed to consider her appointment on merit. She submitted that the decision not to promote her was unlawful and cannot be rendered lawful in terms of SAPS’ Employment Equity Plan or its goals.
POPCRU (Police and Prisons Civil Rights Union), the amicus curiae (friend of the Court), argued that Ms Barnard was not discriminated against on the basis of her race, but instead because she is a member of a designated group which is over-represented at that particular salary level.