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UPDATED: Affirmative Action trumps SA’s “non-racial” Constitution (with comments)

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After almost a decade in court, policewoman Renate Barnard has finally had her career advancement dream crushed purely because of the colour of her skin. Affirmative Action legislation has trumped Constitution which states that South Africa is a non-racial, non-sexist democracy. And the Constitutional Court itself says so. It ruled for the SA Police Services against Barnard and her trade union Solidarity. The full implications of the ruling will take time to be absorbed especially, the white sector of SA's population. But at least they now have clarity. On CNBC Africa's Power Lunch today Werksman's Sandile July answered the tough questions. – AH

ALEC HOGG: The Constitutional Court recently supported Affirmative Action. The made a ruling in favour of the South African Police Services, which was being taken to the Constitutional Court by trade union Solidarity. This was over a policewoman, Renate Barnard who claimed that she was the victim of unfair discrimination. Well, joining us on the line to give us some insight into what this court action or court finding means, is Sandile July, Director at Werksmans Attorneys. Sandile, just to put it into context. When the Constitutional Court makes a Ruling, that is the highest court in the land and it is something that can affect the way people like you look at future cases.

SANDILE JULY: Definitely. That's the highest court and it sets the precedent. It has to be followed going forward.

ALEC HOGG: Just go back and give us some insight into what the issues, the legal issues were at stake here, with the Renate Barnard issue.

SANDILE JULY: I think the legal issues can be simplified by compiling them to the Employment Equity Act, which simply says that shall be affirmative action, and not the Act that says 'affirmative action at the workplace will apply'. What happened in Barnard's case started somewhere in 2005. A position was advertised. When the position was advertised there were a few people who were interviewed and there were actually a few black people or African people who were interviewed in that panel – in that group of candidates, and there was a feeling that there was no representation or enough representation of candidates, from the African perspective. Also, that if you were to appoint Barnard, at that point, you would not meet the requirements that's set out in the Employment Equity Plan, which is the plan, which stays at a particular level. You need this type of representatively.

That advert was withdrawn, meaning that nobody was appointed. There was a second advert. Barnard applied. She was also shortlisted; there were quite a number of African people, who applied. There were about four of them, one coloured, one white, and including Barnard. Then Barnard again came tops; she was number one, at 80-something points, but the person behind her was a black Captain who was seven-point-three percent below Barnard, and the panel recommended Barnard to the Divisional Commissioner. But the concern was still that Barnard's promotion would create problems, in terms of representation because there was already an Employment Equity Plan, which has been accepted and submitted to the Department of Labour and if you appoint Barnard in that position, at level nine, there won't be representation.

Notwithstanding that, the panel felt that Barnard would interpret this differently. 'Let's recommend her to the National Commissioner'. The National Commissioner looked at this recommendation and said 'no, I'm not appointing Barnard because it goes against the Employment Equity Plan'. The starting point should therefore be whether the Employment Equity Plan is fair because the Act provides for the Employment Equity Plan, which is the Employment Equity Act, and therefore you can't just have a general, unfair discrimination, where there's an Employment Equity Act.

ALEC HOGG: Sandile, just to cut to the chase here. If one has a look at the Constitution, you can, I guess read it in various ways.

SANDILE JULY: Yes.

ALEC HOGG: The first way, the way I like to read it, is I live in a non-racial/non-sexist democracy. Affirmative action, by its nature is racist. It has to be because it is addressing issues from the past, in a racial manner. What the Constitutional Court has said, is that if you have an affirmative action plan or if you have affirmative action in a country then that trumps, if you like the non-racial/non-sexist democracy. What signal are we sending to white people in South Africa?

SANDILE JULY: No, you have to accept the history. If you ignore the history then there will be discrimination when you look at affirmative action. However, what affirmative action seeks to do is redress the imbalances of the past. If we accept that we were not equal and we want to be equal, ten for us to be equal you can't avoid redress. How do you redress without looking at the colour?

ALEC HOGG: So…

SANDILE JULY: But it even goes further than that, the Employment Equity Act, says, 'that discrimination must be fair'. It is not like a question of a black versus white. It's that the person that you appoint in that position is he suitably qualified.

ALEC HOGG: So if we now read it, and this is law, this is the highest court in the land. Are we saying that the Affirmative Action Act, as it currently stands, is going to continue indefinitely or is there any sunset clause, which I think was, intended to be the intention right in the beginning?

SANDILE JULY: Yes, the Act does not have a 'sunset' clause. I don't know at what point we are going to say everybody…because it is not about individuals. Affirmative action cannot, be reduced to an individual. It's a class issue. I don't know at what point is the society of South Africa is going to say, 'people are now at the same level'. There has been redress in the country, and therefore we don't need to affirm anybody. I don't know at what point we are going to say…

ALEC HOGG: Does anybody know when that 'sunset' clause might kick in, if there ever is going to be one?

SANDILE JULY: There is no 'sunset' clause.

ALEC HOGG: There's no 'sunset' clause? So we have affirmative action indefinitely and a group, the previously advantaged people, and I'm really just talking law here, not politics.

SANDILE JULY: Yes.

ALEC HOGG: The previously advantaged sector, 20 years into the democracy, must understand that they are still, perceived as advantaged and it could continue indefinitely.

SANDILE JULY: Yes, but what needs to be clear, and how the context, in which that Act must be understood…it's not an Act, which is designed to exclude the previously advantaged people. No, what it seeks to do is to redress the imbalances to say, where there are opportunities and you have suitably qualified black people or African people or coloured or Indian people, those people must be given an opportunity because they did not have those opportunities in the past.

ALEC HOGG: Thank you, Sandile, for unpacking that for us. The Constitutional Court – it's a very important decision that has been made, it is now law, and Solidarity, the Trade Union, is wanting to take it further. They are wanting it to go to the Labour Court, on behalf of Renate Barnard, a policewoman who, as you heard, was the best qualified for the job but we have affirmative action and she won't be getting that job. That was Sandile July, Director of Werksmans Attorneys.

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