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The trade union Solidarity today announced that it is taking government to court again over the way in which the South African Police Service (SAPS) is applying affirmative action. The case will test whether affirmative action and representivity could be more important than service delivery. Solidarity is handling the case on behalf of Capt. Barnard, an SAPS member who has been overlooked twice for an appointment because she would not promote racial representation. The position was never filled, which would therefore have a negative effect on service delivery.
The documents for the court case have already been submitted to the labour court and the court date has been set for 16 November 2009. The announcement comes after Solidarity reached an out-of-court settlement on Monday in a case on behalf of four white forensic experts who, because of affirmative action, were not promoted. The posts were left vacant because there were no suitable candidates from the designated group. The contents of the settlement cannot be made public by the parties.
"Although the settlement was to the satisfaction of the parties, it did not result in the establishment of case law. Therefore, we still need to obtain a court ruling in order get legal certainty. As such, a further court case is of critical importance," said Dirk Hermann, deputy general secretary of Solidarity.
Solidarity's new case deals with an application by the Solidarity member Capt. Barnard for a new post created by the SAPS to handle complaints and improve service delivery. Capt. Barnard is a white woman and in accordance with the Employment Equity Act she is, therefore, part of the designated group. During the interview, Capt. Barnard scored 17,5% higher than another applicant, Capt. Shibambu. The interview panel held the opinion that the difference was so large that it would be to the detriment of service delivery not to appoint Capt. Barnard. However, Regional Commissioner Rasegatla believed that the appointment of Capt. Barnard would not promote racial representation and decided to rather leave the post vacant.
A year later, the job was advertised again. Capt. Barnard applied again and once again performed the best. This time, Comm. Rasegatla recommended that Barnard be appointed. He believed that it would demoralise her not to be appointed and that service delivery would suffer. He also said that black candidates had had a year to qualify for the job, but that Capt. Barnard still outperformed them. This time the national commissioner said that it would not promote racial representation and scrapped the post instead.
"Affirmative action goes too far if it impedes crime prevention. If this happens, it is not affirmative action anymore, but rather a racial ideology. Good affirmative action will result in the best possible police service to the masses. Nobody benefits from a post being left vacant. The only thing this leads to is poorer service delivery, which increases instead of reduces inequality. This is the type of case that should be supported by all South Africans," Hermann said.