Solidarity obo Barnard v South African Police Service (165/13) [2013] ZASCA 177; 2014 (2) SA 1 (SCA); [2014] 2 BLLR 107 (SCA); [2014] 1 All SA 319 (SCA); (2014) 35 ILJ 416 (SCA) (28 November 2013)

Solidarity obo Barnard v South African Police Service (165/13) [2013] ZASCA 177; 2014 (2) SA 1 (SCA); [2014] 2 BLLR 107 (SCA); [2014] 1 All SA 319 (SCA); (2014) 35 ILJ 416 (SCA) (28 November 2013)

The Supreme Court of Appeal found that Barnard was discriminated against on the basis of race, as her non-appointment was solely due to her being white, despite being the best candidate. The SAPS failed to discharge the statutory onus of proving that the discrimination was fair. The National Commissioner’s justification—that the appointment would not address representivity and that the post was not 'critical'—was contrived and unsupported by evidence. The Employment Equity Plan cannot operate as an absolute bar to the appointment of non-designated candidates, and numerical targets must not be applied rigidly as quotas. The SAPS did not provide a rational or lawful explanation for its...

Citation
[2013] ZASCA 177
Parties
Appellant: Solidarity obo Mrs R M Barnard; Respondent: South African Police Service; Amicus Curiae: Vereniging van Regslui vir Afrikaans
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 November 2013
Case Number
165/13
Procedural Posture
Civil Appeal / Appeal From the Labour Appeal Court
Outcome
Appeal upheld; order of the Labour Appeal Court set aside and substituted with dismissal of the SAPS appeal.
Judges
NAVSA, PONNAN, TSHIQI, THERON, ZONDI
Legal Topics
Employment Equity Act, Affirmative Action, Unfair Discrimination, Public Service Appointments, Service Delivery, Constitutional Equality
Labour Law Constitutional Law Employment Equity Act Affirmative Action Unfair Discrimination Public Service Appointments Service Delivery Constitutional Equality

Case Brief

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Parties

Solidarity obo Mrs R M Barnard

Appellant

South African Police Service

Respondent

Vereniging van Regslui vir Afrikaans

Amicus Curiae

Procedural Posture

Civil Appeal / Appeal From the Labour Appeal Court

Legal Issues

  1. 1 Whether the non-appointment of Barnard constituted unfair discrimination on the basis of race.
  2. 2 Whether the SAPS discharged the onus of proving that the discrimination was fair under the Employment Equity Act.
  3. 3 Whether the Employment Equity Plan can operate as an absolute bar to appointment of a non-designated candidate.

Ratio Decidendi

The Supreme Court of Appeal found that Barnard was discriminated against on the basis of race, as her non-appointment was solely due to her being white, despite being the best candidate. The SAPS failed to discharge the statutory onus of proving that the discrimination was fair. The National Commissioner’s justification—that the appointment would not address representivity and that the post was not 'critical'—was contrived and unsupported by evidence. The Employment Equity Plan cannot operate as an absolute bar to the appointment of non-designated candidates, and numerical targets must not be applied rigidly as quotas. The SAPS did not provide a rational or lawful explanation for its...

Court Disposition

Appeal upheld; order of the Labour Appeal Court set aside and substituted with dismissal of the SAPS appeal.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the Labour Appeal Court is set aside and substituted as follows: 'The appeal is dismissed with costs.'