The Constitution provides in Section 9 that “national legislation must be enacted to prevent or prohibit unfair discrimination”. The Employment Equity Act gives impetus to this constitutional imperative and Section 6 of the said act embodies this objective.
The facts in Barnard vs SAPS were very interesting and are worth discussion for purposes of this article. Barnard was a white female who was appointed in 1989 by the SAPS for the position of Constable. In 1997, she was appointed to the position of a Captain.
In 2005, a new position was advertised which was a position of Superintendent and a level 9 position. Barnard was interviewed in November 2005 and the panel recommended her for the position. The Divisional Commander declined the panel’s recommendation based on the under-representation of African males. No appointment was made and the post was withdrawn.
In 2006 the post was re-opened and Barnard applied again. Once again, the panel recommended her appointment. This time the Divisional Commander supported the panel’s recommendation. The National Commissioner declined the recommendation; however, on the grounds inter alia that the panel did not address representivity.
The matter was referred to the Labour Court on appeal; the Labour Court found that SAPS failed to discharge the onus that the discrimination was unfair. The Labour Court further ordered SAPS to promote Barnard to the post with retrospective effect.
Enter the Labour Appeal Court. Interestingly, the Court held that no discrimination occurred as no appointment was made. The Labour Appeal Court further held that the Labour Court erred in treating restitutionary measures as subject to individual conception of a right to equality. The discrimination was held to be justifiable.
The Supreme Court of Appeal found that if one of the two male contenders for the post were appointed, discrimination on the grounds of race would have been justified. The Court confirmed that numerical targets are not to be applied as quota’s which is prohibited in terms of the Employment Equity Act. Each case should be treated holistically and sensitively, said the court. Barnard’s application was upheld with costs.
The matter has been referred to the Constitutional Court and judgment has been reserved. It will be interesting to find out whether the Court will confirm the Supreme Court of Appeal’s finding that without the appointment of the other contenders, they was no justification for the discrimination and therefore the discrimination was unfair.
It is apparent also that the test used in the Labour Appeal Court was opposite. In the Labour Appeal Court, the court held that because no appointment was made, there was no discrimination. The Supreme Court of Appeal however, held that the fact that there was no appointment, that was indicative of discrimination which was unfair as it could not be justified on the basis of race.
Also interesting from a jurisprudential point of view is the fact that Barnard, although White, is also part of the previously disadvantaged group because she is a woman. Surely she should be protected against arbitrary application of discrimination?
The case also raises interesting issues about the burden of proof in unfair discrimination. Who bears the onus? It is a well -established principle that the onus is on the employer to prove that the discrimination was fair. We eagerly await the judgment of the Constitutional Court to either confirm this status quo or find that it is unconstitutional.