Johannesburg - The decision not to promote Lt-Col Renate Barnard was based on her race and not merit, the Constitutional Court heard on Thursday.
“Only employment equity was taken into account and not Lt-Col Barnard's merits,” said Martin Brassey SC, for Solidarity.
“The principle anxiety we had was whether the decision of the (national police) commissioner... weighed all merits into account.”
The police commissioner had said he had taken the recommendations by an interview panel into consideration. However, Brassey argued that the commissioner was not supposed to just consider the recommendations, but also had to evaluate them.
The Constitutional Court was hearing an application for leave to appeal by the SA Police Service.
The SAPS wanted to appeal a Supreme Court of Appeal decision that it had discriminated against Barnard on the basis of race.
Barnard had twice applied unsuccessfully for promotion to superintendent within the National Evaluation Services (NES), which dealt with complaints by the public and public officials concerning the broad spectrum of police services.
Despite recommendations by an interview panel and her divisional commissioner, the national police commissioner did not appoint her to the position, on the basis that racial representivity at the level of superintendent would be negatively affected.
Earlier, Hamilton Maenetje SC, for the SAPS, argued that the commissioner's decision not to appoint Barnard was rational and justified in terms of employment equity.
White officers were over represented on level nine, where Barnard would have been appointed, in the SAPS.
“There is over representation of five. Barnard's appointment would have 'aggravated' that over representation.”
Maenetje said appointment was at the discretion of the national commissioner.
Acting Chief Justice Dikgang Moseneke reserved judgment on the application.