across the bar

Affirmative action in the spotlight

by Ashley - Posted 15 March 2010

Affirmative Action is still a hotly contested topic in South Africa. In the recent case of Solidarity obo Barnard and Another v South African Police Services the Labour Court had to consider the issue of Affirmative Action and employment equity in the South African Police Service (SAPS).

Mrs. Barnard commenced service with the SAPS in 1989 as a constable. In 1997 she was promoted to the rank of Captain. After many years she was transferred to the National Inspectorate, formerly known as the National Evaluation Service (NES), at the rank of Captain.

During 2005 the SAPS created a new post of Superintendent of the NES. Mrs. Barnard applied for the position twice but was denied the promotion. Mrs. Barnard brought this application based on unfair discrimination and the allegation that she was denied the promotion solely for being white.

During the interview process for the position  Mrs. Barnard obtained the highest scores out of all the candidates and the panel agreed that the appointment of Mrs. Barnard would definitely enhance service delivery. Despite these factors, the Divisional Commissioner decided to leave the post vacant based on the sole reason that Mrs. Barnard was white and her appointment would frustrate the representivity status.

In 2006 the same post was again advertised. Mrs. Barnard applied and was short-listed. She was once again the top candidate for the position and recommended by the panel.

The National Commissioner refused to approve Mrs. Barnard's appointment on the basis that she was white and her appointment would not address representivity. The post was left vacant.

After due deliberation the Court reiterated that where a post cannot be filled by an applicant from an under- represented category because a suitable candidate from that category cannot be found, promotion to that post should not ordinarily and in the absence of a clear and satisfactory explanation be denied to a suitable candidate from another group.

The Court held that the failure to promote Mrs. Barnard was a decision based on her race and was indeed discrimination. The fact that other suitable black candidates were not appointed did not make the non- appointment fair.

In light of SAPS decision not to promote a black candidate, the Court concluded that it was unfair not to appoint Mrs. Barnard, who was a member of a designated group in the Employment Equity Act and the best candidate for the job.

The Court directed the SAPS to promote Captain Barnard to the post of Superintendent with effect from 2006.