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Trade union Solidarity is celebrating a famous victory after the Appeals Court ruled in favour of career policewoman Captain Renate Barnard whose promotion had been blocked on the basis of Affirmative Action. Supported by her union, Barnard has been fighting her employer for the last eight years. Her victory means SA Police Services has to pick up all the legal costs and compensate its 24-year veteran whose father and grandfather were also police officers. On CNBC Africa today we asked lawyer Tony Healy to take us through the issues. The transcript of that interview is below as is Solidarity’s statement and details of the legal battle which began in 2007. – AH
ALEC HOGG: In a landmark case on affirmative action, the Supreme Court of Appeal struck down the use of racial quota in determining job appointments. Gugulethu Mfuphi was saying a little bit earlier that she thinks it’s a good decision. We’ll find out in just a moment whether Tony Healy of Tony Healy Associates, agrees with her.
TONY HEALY: Yes, I think we have an example in this particular case of circumstances where acceptable numerical targets, provided for in the Employment Equity Act, are being utilised in a de facto manner as a quota. The Supreme Court is telling us that’s not acceptable because we already know that quotas are prohibited in the Employment Equity Act. When one uses numerical goals as de facto quotas, then you’re overstepping the mark.
ALEC HOGG: De facto?
TONY HEALY: De facto: essentially, when you’re using numerical targets as quotas, there are supposed to be targets where the objective is to try and reach a demographic of women, blacks, or people with disabilities but you’d rather use it as a specific quota so that you then… As happened in this particular case, you then disqualify someone who ordinarily qualifies for the position by virtue of the fact only that by appointing them, you would be overrepresented by – in this particular case – women in that occupational category.
GUGULETHU MFUPHI: I read the story and as a black female/woman, I was actually shocked as to how a ruling would come about in the first place. Alec knows I’m a firm believer in working very hard at attaining new skills – whatever position you’d like. Take us into the background. Where does this kind of ruling come from?
TONY HEALY: What happened in this particular case is that Captain Renate Barnard applies for a position. She’s qualified. She’s recommended by other panellists, but we talk about numerical targets. Essentially what that means in simple terms, is that employers are required to have a demographic within their organisation that reflects the demographic in society. If, for argument’s sake, we say that 50 percent of society is made up of females, then 50 percent of the workplace must be made up of females – within job categories and within job grades. This was a particular occupational category, so she applied. She applied twice, she was recommended twice by the panel, and she was turned down because it would have resulted in white women having been overrepresented in that particular occupational category. Ultimately, the position was not even filled over a prolonged period of time.
ALEC HOGG: What are the implications of this? It sounds like a really big deal.
TONY HEALY: Well, I think it is important in the sense that there’s been a drift in thinking where one is meant to be using numerical targets for precisely that, to say ‘let’s try and see what we can do to make sure we have the right number of representation when it comes to blacks, women, and people with disabilities. Those targets, in and of themselves, are quite acceptable and understandable. However, what you can’t do according to this particular judgment… If you have nobody in a designated group, if you don’t have a female, a black person, or a disabled person to fill that position but you do have somebody who isn’t from a designated group, then you shouldn’t turn your back on them as applicants. What happened here was ultimately, the position was not filled, and it was ultimately withdrawn. You have to ask yourself, if it was important enough to have created, and advertised for…
ALEC HOGG: What is the implication? I’m running a business. What do I do now? How do I change my employment practices if I must?
TONY HEALY: Yes, well all this really means is if you already have a representation of females, for example – and in this particular case, let’s use the 50 percent demographic as a cut-off. If you already have a 50 percent white female representation, you have a vacancy, you have an applicant who is a white female who is the only suitable person, and who is going to take you over that target then you would have to appoint that person.
GUGULETHU MFUPHI: Why isn’t there more of an emphasis on skills development and skills transfer at large, not dependent on race or whatever demographic representation you may want?
TONY HEALY: Well, in this particular case the woman in question had all of the required skills. The problem is that it would have resulted in the SAPS exceeding its numerical targets in terms of the representation of white females, so all of these appointments presuppose that you have the prerequisite skills
ALEC HOGG: That was Tony Healy from Tony Healy Associates.
Statement by trade union Solidarity:
The Supreme Court of Appeal (SCA) in Bloemfontein today found in favour of Solidarity and Captain Renate Barnard in one of the country’s most controversial affirmative action cases. Barnard’s legal battle against the South African Police Service (SAPS) for promotion lasted more than eight years. Apart from having to pay the legal costs of the Labour Court, the Labour Appeal Court and the SCA, the SAPS must compensate Barnard.
‘The ruling is a huge victory for Solidarity and Captain Renate Barnard. She had to fight for justice for eight years. Her tenacity captured people’s imagination,’ said Dirk Hermann, Executive Officer of Solidarity. The full bench of the SCA found that the SAPS had discriminated unfairly against Barnard on the basis of race. ‘According to the judgment, employment equity cannot be achieved by mechanically applying formulas and numerical targets. The ruling further states that in order to determine equity, a flexible and situation-sensitive approach must be followed.’
Hermann said the ruling makes it clear that numerical targets cannot be used as absolute criteria when filling posts. ‘Numerical targets lead to quotas, and the Employment Equity Act does not allow quotas. The ruling also touches on the issue of service delivery. According to the judgment, the South African Constitution expects the police service to be professional and effective, and to use its resources efficiently. The judges found that filling the post for which Barnard had applied was critical and that the police’s argument that it wasn’t, was a lie. The judges found that Barnard’s non-appointment in the post in question had negatively affected service delivery.’
Captain Renate Barnard’s fight against affirmative action started in 2005. She applied for the same post twice. She was named the best candidate and her appointment was recommended by the interview panels on both occasions. The post was, however, not filled. After the post had been advertised a third time and Barnard had again applied for it, it was withdrawn.
Captain Renate Barnard has been employed in the police service since January 1989. She was promoted to the rank of captain in 1997. In 2005 the SAPS created a new post for a (then) superintendent “to evaluate and investigate priority and ordinary complaints nationally”. It was advertised as post 6903.
Barnard was interviewed for this post on 3 November 2005 and was subsequently recommended as the best candidate. No appointment was made due to equity; the post was left vacant. The post was re-advertised in 2006. Barnard was once again named the best candidate and was recommended for appointment by the divisional commissioner.
The National Police Commissioner declined to approve her appointment due to equity reasons, saying the ‘post is not critical’. The post was subsequently withdrawn.
A case of unfair discrimination (based on race) was referred to the Labour Court in 2007.
Johannesburg Labour Court judgment:
On 26 February 2010 the court ruled in favour of Barnard who was promoted to the post of superintendent with effect from 27 July 2006.
The respondents were granted leave to appeal. The appeal was heard on 4 May 2011.
Labour Appeal Court judgment:
On 2 November 2012 the court delivered judgment in favour of the SAPS. Solidarity was granted leave to appeal on 7 February 2013.
Supreme Court of Appeal:
Solidarity’s appeal was heard on 6 November 2013. The Supreme Court of Appeal found in favour of Solidarity and Captain Renate Barnard on 28 November 2013. This judgment ratified the ruling of the Johannesburg Labour Court and set aside the ruling of the Labour Appeal Court.
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