Johannesburg - A former policewoman who failed to be promoted because of her skin colour will now seek an international remedy after her nine-year legal battle came to an end in the Constitutional Court on Tuesday.
Lieutenant-Colonel Renate Barnard will approach the UN and International Labour Organisation in the hope of them recommending to South Africa that it comply with the spirit of conventions it has ratified on eliminating racism.
In Barnard’s last desperate attempt, she wants to show that South Africa’s employment equity laws are out of sync with international conventions on racial discrimination. But it is a long shot because these conventions on racism are not blind to the needs for historical redress. And while the public service has transformed to be representative of South Africa’s race groups, her case may be weakened because the country’s economy remains largely untransformed.
Barnard, who now works at a bank as a forensic investigator, lost her case after the SA Police Service approached the Constitutional Court because a lower court had ruled that the SAPS unfairly discriminated against her. The case was significant because there has been much toing and froing between unions and bosses, especially in government departments, on what is the fair application and interpretation of South Africa’s employment equity and affirmative action laws.
The Supreme Court of Appeal found last year that there was no rational or proffered explanation from the police for their failure to promote Barnard. It also ruled that in order to determine equity, a flexible approach must be followed.
She was turned down twice for a position that 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.
Dirk Groenewald, who heads the legal division of trade union Solidarity, which has been assisting Barnard, said on Tuesday a reason the top court had ruled against the union was because it had erred in not challenging Selebi’s decision. The court said the decision was fair because it complied with the SAPS’s employment equity plan.