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Constitutional Court ruling sets precedent for affirmative action

Constitutional Court ruling sets precedent for affirmative action

2nd September 2014

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Today the Constitutional Court rejected a claim brought by police lieutenant colonel RM Barnard against the South African Police Service (SAPS) for unfair discrimination, which was instituted in 2007.

Barnard, a white female, was employed by the SAPS. On two occasions her application for a promotion to the post of superintendent was rejected, even though she was identified as the best candidate for the position.

SAPS justified the decision not to promote her on the basis that her promotion would not have been consistent with its employment equity plan.

At its core, the case addresses the constitutionality of affirmative action measures which have been adopted pursuant to the Employment Equity Act, 1998 and whether the implementation of such measures amounts to unfair discrimination.

Barnard’s claim was rejected on the basis that affirmative action measures are lawful and constitutionally sound.

According to Pamela Stein, partner and head of the Employment & Employee Benefits Practice at Webber Wentzel, the judgement is important because it contextualizes remedial measures such as affirmative action as being consistent with the Constitution, but at the same time setting parameters of such measures.

She says, “This judgment upholds affirmative action measures as being constitutionally sound, but emphasises that they are a means to an end, and not an end in themselves. The court stresses that such measures must be rational, not punitive or retaliatory, and warns against sacrificing efficiency and competence for affirmative action. The court also pointed out that although affirmative action measures which comply with the Employment Equity Act are protected, the courts retain the power to assess the content of such measures, and the manner in which the measures are applied."

Stein highlights several important learnings from the judgment that should be applied when assessing the legality of affirmative action measures, pointing out that the use of remedial measures to address past discrimination is constitutionally protected.

However, she says the judgment indicates that measures need to be formulated with care; should not unduly invade the dignity of employees; should not be punitive or retaliatory; and cannot be an end in themselves.

In addition, affirmative action measures must conform to criteria such as targeting a particular class of people who have been susceptible to unfair discrimination; must be designed to protect or advance those classes of persons; and must promote the achievement of equality.
“What we can expect to see in future is the courts exercising their powers to assess whether the manner in which affirmative action measures are applied, are lawful. Another issue that is likely to come under the spotlight is whether affirmative action measures have benefited only suitably qualified people,” explains Stein.

“Finally, affirmative action measures must be flexible and inclusive, and an employer may not establish an absolute barrier to the future or continued employment or promotion of people who are not from designated groups,” she concludes.

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