Oceans of printers ink and even larger volumes of band-width in cyberspace have been devoted to picking over the September 2014 judgments delivered by the Constitutional Court in a matter that has been wending its way through the courts for nine years: the sad case of Captain Renate Barnard of the South African Police Service (SAPS). Barnard was unsuccessful in her attempts to obtain a promotion in SAPS and, with the support of her trade union, Solidarity, she litigated the SAPS decision not to promote her through every available forum in South Africa. In the Constitutional Court, where three different but concurring judgments were delivered, she lost the final appeal available within the SA legal system. There is talk of the matter being taken further on the international stage; it remains to be seen whether the captain will enjoy greater success before the International Labour Organisation.

It is useful to examine the constitutional framework within which the case was fought and eventually lost by Barnard.

Foundational to the new order are the notions of non-racism and non-sexism. As a white woman, Barnard ought to be able to draw comfort from this, after all one of the injustices of the past was the lesser role accorded to white women in the apartheid order which was unfairly dominated by white men. Going colour-blind and non-sexist as a cornerstone of the new dispensation was a blessing to all, but especially so to individuals and categories of persons previously disadvantaged by unfair discrimination against them. So-called “white” women are certainly victims of past discriminatory practices.

The way in which non-racialism and non-sexism are introduced into the Constitution reveals the intent of the founders of the new order. In the first section of the Constitution these values are sandwiched between “Human dignity, the achievement of equality and the advancement of human rights and freedoms” on the one side, and “Supremacy of the constitution and the rule of law” on the other.
How then is the achievement of equality to be fashioned in this new non-racial and non-sexist order under the rule of law?

The clues are explicit and are contained in the Bill of Rights which declares that “everyone is equal before the law and has the right to equal protection and benefit of the law” in section 9(1).

In section 9(2), without referring to race or sex in any way, shape or form the following two sentences appear:

“Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.”

Clearly everyone knows that, in the old SA, race was the main criterion for the discriminatory practices of apartheid, with gender not far behind. As if to soothe those pre-occupied by these harsh historical facts the Bill of Rights continues in section 9(3):

“The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex …”

The section goes on to list a host of grounds. The onus is on the discriminator to show that any discrimination is fair. Disadvantage is the sole criterion for promoting the achievement of equality.

From these foundational provisions and the words quoted from the equality clause in the Bill of Rights it is possible to deduce that measures designed to advance the disadvantaged have to be fair, failing which they do not pass constitutional muster and fall to be struck down as invalid for their inconsistency with the values of the Constitution.

How then was it possible for Barnard to lose her case in court when she satisfied those considering staff for promotion that she was the best qualified candidate to fill the vacancy for which she applied?

All three judgments in the Constitutional Court give Barnard short shrift. The majority judgment creates a three-pronged test for the validity of restitution measures which must:

“Target a particular class of people who have been susceptible to unfair discrimination; be designed to protect or advance those classes of persons; and promote the achievement of equality.”

The SAPS was found to be both rational and reasonable in exercising its discretion not to promote Barnard. The main concurring minority judgment placed emphasis on the unique qualities of the dispute saying: “This is the first case … that deals with the standard to be applied in assessing the lawfulness of the individual implementation of constitutionally compliant restitutionary measures” The notion of “fairness” is described as an inexact term, the content of which should be judged on a case-by-case basis. Lest this be understood to mean that membership of a non-designated group against which employment equity measures may be applied need not be an obstacle to promotion if a job applicant is able to show actual disadvantage despite not being a member of the designated group(s), Justice van der Westhuizen, writing alone, points out that one need not have been complicit in past wrongs to have systemically benefited.

Judging the fairness or otherwise of affirmative action measures on a case-by-case basis is perhaps the only way to make sense of the aspiration to form a non-racist and non-sexist new democratic order. If race or sex are always to be regarded as fair yardsticks for promoting the achievement of equality for persons or categories of persons disadvantaged by unfair discrimination, then there is hope that we will, case-by-case, eventually arrive at a situation in which job applicants are judged fairly by the quality of their applications and not by the colour of their skins or the quantity of chromosomes in their bodies. After all, the Bill of Rights is explicit in saying that discrimination on the grounds of race or sex (among others) is unfair unless it is established that the discrimination is fair.

On the facts in Barnard’s case it is difficult to divine exactly how a female applicant who was regarded as by far the best person to fill the vacancy for which she applied could fall foul of a measure that ought to have been designed to advance persons disadvantaged by unfair discrimination.

If the “categories of persons” (the constitutional wording which morphs into “classes” in the main judgment) which the SAPS employment equity plan seeks to advance are determined according to criteria of race or sex then it is difficult, in an order based on non-racialism and non-sexism, to find a basis for not declaring the measures as directly or indirectly unfairly discriminatory because they are race and gender based and not based on disadvantage per se. Twenty years into the new democratic order it is becoming increasingly unrealistic to use race or sex as an equivalent for disadvantage, and Barnard, being a woman, ought not to have suffered the ignominious failure of her job application as her promotion would surely have promoted the achievement of equality between men and women.

The judgments have been hailed by all manner of organisations that appear to support the notion of affirmative action as an excuse for racism in reverse (which they are not) and panned by those sympathetic to Barnard as the conferral of second class citizenship on whites (which they are also not). One thing is sure: we have not heard the last word on this most contested topic.

Paul Hoffman SC
25 September, 2014