This morning the Constitutional Court handed down its eagerly awaited judgment in the unfair discrimination case brought by Barnard against the South African Police Service (SAPS) years after Barnard first initiated her claim in the Labour Court (in 2007).

At its core, the case addresses the constitutionality of affirmative action measures which have been adopted pursuant to the Employment Equity Act, No. 55 of 1998 and whether the implementation of such measures amounts to unfair discrimination.

Barnard, a white female, was employed by the SAPS as a lieutenant colonel. On two occasions she applied, and was rejected, for promotion to the post of superintendent, 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.

The Constitutional Court rejected her claim, on the basis that affirmative action measures are lawful and constitutionally sound. However the courts can intervene by reviewing the content of such measures, and the manner in which affirmative action measures are applied.

Important learnings from this judgement include the following guidelines:

• Measures directed at remedying past discrimination by the promotion of employment equity are constitutionally protected, however they must be:

1. formulated with due care;
2. not unduly invade the dignity of employees;
3. not be punitive nor retaliatory; and
4. cannot be an end in themselves. 

• Affirmative action measures are not unfair, but they must:

1. target a particular class of people who have been susceptible to unfair discrimination in the past;
2. be designed to protect or advance those classes of persons; and
3. promote the achievement of equality. 

• The courts have the power to judge whether affirmative action measures comply with the above criteria.
• The courts have the power to assess whether the manner in which affirmative action measures are applied, are lawful.
• Affirmative action measures must ensure that only suitably qualified people benefit from them.
• 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.

This case confirms that affirmative action is lawful and constitutionally sound, but that the courts can review the content and the manner in which the measures are applied.

Compiled by Pamela Stein and Prévot van der Merwe, Webber Wentzel.