Barnard (Summary)

8/10/2019 Barnard (Summary)

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CONSTITUTIONAL COURT OF SOUTH AFRICA

South African Police Service v Solidarity obo Barnard

CCT !"!#

$ate of hearin%& ' (arch '!#

$ate of )ud%*ent& ' Se+te*ber '!#

________________________________________________________________________

(,$IA SU((AR-

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The following explanatory note is provided to assist the media in reporting this case and

is not binding on the Constitutional Court or any member of the Court.

Today the Constitutional Court handed down judgment in an application for leave to

appeal against a judgment of the Supreme Court of Appeal. The appeal concerned

whether the decision of the National Commissioner of the South African Police Service

(SAPS not to promote !s "arnard to the position of superintendent in the SAPS National #valuation Service (N#S$ constitutes unfair discrimination on grounds of race

in contravention of section % of the Constitution and section & of the #mployment #'uity

Act (Act.

!s "arnard has een a memer of the SAPS since )%*%. +n ,-- the

National Commissioner advertised a position within the N#S. !s "arnard applied twicefor this position. /espite eing shortlisted$ interviewed and recommended as the est

suited candidate$ she was unsuccessful on each occasion. This matter however$ only

concerns her second attempt. The National Commissioner0s reasons for not appointing!s "arnard were that it would not enhance racial representivity at that particular salary

level and that since the post was not critical to service delivery$ it was not necessary to fill

the vacancy immediately.

The 1aour Court found in favour of !s "arnard. +t held that the National Commissioner0s decision was not a fair and appropriate method of

implementing SAPS0s #mployment #'uity Plan and that SAPS had not given sufficientreasons for the National Commissioner0s decision thus did not discharge its onus to

estalish that the decision was rational and fair.

2n appeal$ the 1aour Appeal Court found in favour of SAPS. +t found that the

implementation of restitutionary measures is not suject to an individual0s right to



e'uality in terms of section %(3 of the Constitution. Thus the decision not to promote!s "arnard was not unlawful ecause the National Commissioner was not oliged to fill

the advertised post.

The Supreme Court of Appeal reversed the 1aour Appeal Court0s decision$ and found

that !s "arnard was discriminated against on the listed ground of race and that the SAPS

failed to reut the presumption of unfairness in this regard. +t held that !s "arnard thus

suffered unfair discrimination in terms of section %(3 of the Constitution and section &()of the Act.

This Court grants SAPS leave to appeal. The Court is unanimous that the appeal should e upheld. +n the main judgment y !osene4e AC5$ writing for the majority$

(S4weyiya A/C5$ /amu6a A5$ 5afta 5$ 7hampepe 5$ !adlanga 5 and 8ondo 5

concurring held that the SAPS #mployment #'uity Plan is a restitutionary measurecontemplated in section %(, of the Constitution and section &(, of the Act. 9e therefore

found that the Supreme Court of Appeal misconceived the issues efore it$ as well as the

controlling law. The Supreme Court of Appeal was oliged to e:amine the e'uality claimthrough the prism of section %(, of the Constitution and section &(, of the Act ecause

the validity of the SAPS #mployment #'uity Plan was not under challenge y !s"arnard. 9e found that the appeal in that Court was decided on the wrong principle. 9e

also held that the other cause of action$ the review of the National Commissioner0sdecision$ was only raised for the first time on appeal and was therefore not properly

efore the Constitutional Court. 9e held that on the facts this cause of action was$ in any

event$ without merit. Accordingly$ he upheld the appeal and concurred in the separate judgment of 5afta 5.

+n a separate concurring judgment$ Cameron 5$ ;roneman 5 and !ajiedt A5 emphasisedthe possile infringement of dignity in the implementation of restitutionary measures$ and

the importance of giving ade'uate reasons for decisions. They agreed with

!osene4e AC5 that !s "arnard had not rought a review challenge. 9owever$ theyfound that it was necessary to adjudicate !s "arnard0s claim that the

National Commissioner0s decision was at odds with the #mployment #'uity Act. They

held that the appropriate standard y which to evaluate this claim was on the asis of

fairness. +n the application of that standard$ the National Commissioner0s reasons wereimportant as the reasons provide evidence of whether the #mployment #'uity Plan was

implemented fairly. The judgment held that the National Commissioner0s reasons were

sparse on why he thought service delivery was not a pressing concern and why herejected !s "arnard0s application even though$ as a woman$ she is a memer of a

designated group. <ltimately$ however$ the judgment concluded that there is sufficient

e:ternal evidence to show that the National Commissioner0s decision was fair.

+n a separate judgment$ =an der >esthui6en 5 concurs with the outcome of the other

judgments ut tests the implementation of an affirmative measure differently. ?elying on

Minister of Finance and Another v Van Heerden @,--B 8ACC 3 he finds that thedecision not to appoint !s "arnard$ even though she is a woman and has therefore

suffered past disadvantage$ did not threaten the longterm constitutional vision of a

nonse:ist$ nonracial society. +n addition to an e'uality analysis$ =an der >esthui6en 5measures the impact that the implementation of an affirmative measure has on other



rights. +n this regard$ he considers the effect of the National Commissioner0s decision on!s "arnard0s right to human dignity as well as on the pulic0s right to safety and security

through an effective police service. 9e provides an e:position of the right to dignity in

our constitutional democracy and finds that any impact on service delivery and on!s "arnard0s dignity is justifiale in the circumstances of this case.

+n a separate concurring judgment (!osene4e AC5 concurring$ 5afta 5 agreed with

!osene4e AC5 that the order of the Supreme Court of Appeal ought to e set aside andthat of the 1aour Appeal Court revived. 9e too4 the view that the Constitutional Court

should not determine the cause of action relating to the review of the

National Commissioner0s decision which led to !s "arnard eing overloo4ed for a promotion. 9e reasoned that the claim that was rought efore the other Courts was that

of unfair discrimination and not the National Commissioner0s decision. 5afta 5 reasoned

that it was a principle of our law that a party must plead its cause of action in the court of first instance for parties to 4now what case they have to meet and what relief is sought

against them. 9ere$ !s "arnard was see4ing relief on a new cause of action. 2rdinarily$

it is not permissile in our law for a party to raise a constitutional complaint that was not previously pleaded.

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Barnard (Summary)