The Barnard principle

One case shows that affirmative action is still legally ambiguous

The Broad-Based Black Economic Empowerment (B-BBEE) Act (Act 53 of 2003) is a key piece of legislation in post-apartheid South Africa, aiming to increase the effective participation of the majority of South Africans in the economy. One of the objectives of this Act is to facilitate broad-based black economic empowerment by promoting economic transformation. This is in order to enable meaningful participation of black people in the economy. Such effective participation seeks to promote the achievement of the constitutional right to equality and promote a higher growth rate, increased employment and more equitable income distribution.

The Act is essential to redress the wrongs of the past and ensure equality for all. Resistance to B-BBEE is widespread, and in a country that remains exceptionally unequal, there are concerns about the effectiveness of this practice and what it means for the future of the workforce and largely, the economic freedom of all South Africans.

In September 2014, the Constitutional Court handed down judgment in the matter of The South African Police Service v Solidarity on behalf of Barnard. The background facts can be summarised as follows: Renate Barnard was twice denied a promotion to the position of Superintendent in the SAPS National Evaluation Service. Employed by the SAPS since 1989, Barnard went to the Labour Court after her second unsuccessful round of being shortlisted, interviewed and recommended as the best candidate for this position. Reasons for not appointing her centred around her race (she is a white person) and the required racial representation needed in the SAPS, based on employment equity policies in place in the organisation. The SAPS further determined that the position was not critical to service delivery and could therefore remain vacant.

The Labour Court ruled in favour of Barnard. The SAPS then successfully appealed the ruling in the Labour Appeal Court. Barnard consequently approached the Supreme Court of Appeal (SCA), which ruled in her favour. This ruling led to the SAPS applying to the Constitutional Court for leave to appeal the SCA’s decision. They were successful, with the court unanimously ruling in September 2014 that the appeal should be upheld.

Citing section 9 of the Constitution and section 6 of the Employment Equity Act (Act 55 of 1998), the Constitutional Court noted that the SCA was misguided in its ruling, basing its judgment on a different interpretation of the issues at hand, and attributing this to a different part of the Employment Equity Act (EEA) than that which was key to the matter.

Section 9 of the Constitution, commonly referred to as the equality clause, provides that everyone is equal before the law and has the right to equal protection and benefit of the law. This equality encompasses the full and equal enjoyment of all rights and freedoms. In order to promote equality, legislative measures may be enacted, and other measures, designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination, may be taken.

Section 6 of the Employment Equity Act focuses on the prohibition of unfair discrimination. Section 6(1), which the SCA based its ruling on, provides that no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth. However, Section 6(2), which the Constitutional Court based its judgment upon, notes that it is not unfair discrimination to take affirmative action measures consistent with the purpose of the EEA or to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

Herein lies the crux of this matter — which piece of legislation do we turn to?

On the one hand, Barnard was not promoted owing to racial representation and the fact that the position was perceived not to be critical and could thus remain vacant. On the other hand, these judgments note that this matter is complex and requires careful consideration of both the Constitution and EEA. Concerns have been raised about the infringement of Barnard’s rights, especially her right to fairness and equality, at the expense of racial representation and affirmative action. However, affirmative action aims to ensure that designated groups, including women, have equal opportunities in the workplace.

The article “Constitutional perspectives on the judgments of the Labour Appeal Court and the Supreme Court of Appeal in Solidarity (acting on behalf of Barnard) v South African Police Services” published in De Jure 2014 (47) on page 118 by Malan K, notes that: “The SCA was at pains to emphasise that employment equity measures should not be applied mechanically and that all relevant considerations pertinent to each individual decision purporting to implement such measures had to be scrutinised. This includes the impact of such measures on members of nondesignated groups, such as Barnard, as well as considerations of effective service delivery. The SCA found pertinent support for this view in Section 15(3) of the EEA [Employment Equity Act] which stipulates that affirmative action measures include preferential treatment and numerical goals, but exclude quotas … and also in the SAPS’s own employment equity plan, which states in its foreword that: “Whereas the focus of employment equity is on black people, women and persons with disabilities, no employment policy or practice will be established as an absolute barrier to prospective or continued employment or advancement of persons not from designated groups”.

Barnard resigned from the SAPS in June 2014. This matter took eight years to reach the Constitutional Court and is certainly the most controversial of the cases on affirmative action. While South Africa has passed several pieces of legislation on affirmative action, ambiguity remains. This case was referred to in the recent matter Solidarity and Others v Department of Correctional Services and Others in which the court referred to the “Barnard principle” and again confirmed the principle of seeking to address [race] representation in the workplace and the applicability of this even when an individual falls into a designated group.