Barnard (Summary)
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Transcript of 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-
________________________________________________________________________
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
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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
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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.