Johannesburg - Over the next few weeks, Constitutional Court justices will have to decide whether a lower court was correct in finding that a white policewoman was unfairly discriminated against because of her race.
Lieutenant-Colonel Renate Barnard has been fighting her case with the help of trade union Solidarity for more than eight years.
She was turned down twice for a position which involved evaluating and investigating national complaints because white women were over-represented on that salary level.
This was despite being shortlisted and recommended as the best candidate for the job, which was never filled. The post was eventually scrapped by Jackie Selebi, who was national police commissioner at the time, as he deemed it unessential.
Barnard’s case eventually ended up at the Supreme Court of Appeal (SCA). It found last year that there was no rational or proffered explanation from the SAPS for its failure to promote Barnard. It also ruled that in order to determine equity, a flexible approach must be followed.
The SAPS is now applying for leave to appeal against this judgment in the Constitutional Court.
It believes that because the position involved representivity considerations and remedial measures, the SCA erred in applying the discrimination test. It argues that it was not fair for the SCA to place undue onus on the police to prove that not appointing Barnard was fair.
There have been opposing arguments for years on how affirmative action should be implemented and if it should only happen through strict racial quotas.
The Labour Appeal Court and SCA differ on the Barnard case – and the Constitutional Court judgment should provide clarity on how affirmative action should be applied.
Yesterday Vuyani Ngalwana, arguing as amicus curiae on behalf of police union Popcru, said the case was not about race. “The basis for discrimination here is not race, but over-representation,” he said.
If Solidarity accepted that race and gender were touchstones of employment equity, as it did, then discrimination based on these two elements could not immediately be deemed unfair, he said.
Advocate Hamilton Maenetje SC, for the police, said Barnard’s career was not destroyed by her non-promotion. She has been in the SAPS for 25 years. “This is not a measure that constituted an absolute bar for her career. If anything, it delayed it.”
Maenetje did accept that Barnard would have found the matter unfair.
“I accept it would have been a disappointment for her. Equally, if you didn’t implement affirmative action, you would have many people in similar positions. In the balance, that is an important consideration.”
Advocate Martin Brassey SC, representing Solidarity, said the respondents had no qualms with the police’s employment equity plan.
Asked by Acting Chief Justice Dikgang Moseneke whether the “grounds for impugning” the decision not to appoint Barnard were that it was not fair, reasonable or rational, Brassey contended it was not necessary to apply any of those three tests. The problem was that when Selebi turned down Barnard’s application, he did not take proper account of Barnard’s merits as a candidate, he said. The reasons given by Selebi were over-representation and that the post was not critical. He did not say whether Barnard was incapable of fulfilling the requirements of the post.