Solidarity takes Barnard case to Constitutional Court
Solidarity will approach the Constitutional Court to appeal the Labour Appeal Court's ruling in the Renate Barnard affirmative action case. It will be the first time that an affirmative action case is tested in this court. Captain Barnard's seven-year fight to get a promotion in the South African Police Service (SAPS) is therefore still not over.
Solidarity's decision comes after the Labour Appeal Court ruled in favour of the SAPS in this controversial court case. Solidarity will also request the court to declare the police's affirmative action plan invalid in its entirety.
‘The Renate Barnard case has been like a tennis match over the past seven years. The latest court ruling is disappointing, but the ball is once again in Solidarity's court. We therefore now have control of the ball and we are convinced that we will obtain a final victory in the Constitutional Court. Nevertheless, we truly regret that Captain Barnard will have to wait for another court ruling,' said Dirk Hermann, Deputy General Secretary of Solidarity.
In the judgement it was found that it is not within the court's jurisdiction to dictate to the National Commissioner to fill a post; it cannot decide if the decisions of the commissioner will compromise service delivery.
‘There are various constitutional elements which the court has not given finality on. We are seeking finality on the constitutionality of a quota system that is based on the national racial demographics, the balance between affirmative action and service delivery, and the Constitution's provisions regarding the non-designated group's right to equality and dignity,' said Hermann.
‘If this ruling is upheld, then employers will be free to leave positions vacant on the basis of affirmative action. Leaving positions vacant will have a negative effect on service delivery and will therefore be to the detriment of everyone living in South Africa. We believe that the Barnard case has strong constitutional elements that must be tested,' said Dirk Groenewald, Head of Solidarity's Labour Court division.
The Renate Barnard case is one of Solidarity's 33 affirmative action cases that test different aspects of the state and parastatals' affirmative action plans. Ten of the cases have already been ruled in Solidarity's favour. There are 15 cases remaining, all of which relate to affirmative action in the SAPS.
‘It is clear to us that taking individual cases to court is not enough. In such cases, where judgments are given based on individual facts, a legal precedent is not laid down. We believe the police's affirmative action plan is wrong at its core and for this reason we have already served process upon the SAPS, in which we request the court to declare the entire plan invalid,' said Groenewald.
Barnard's affirmative action battle dates back to 2005. She applied for the same position twice and was identified as the best candidate and recommended by the interview panel on both occasions. The position was left vacant, however. The position was advertised for a third time, but was withdrawn after she had reapplied for it.
For the full judgement, click here.
Statement issued by Dirk Hermann, Deputy General Secretary: Solidarity, and Dirk Groenewald, Head: Labour Court Division, Solidarity, November 2 2012
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