South African Police Services v Solidarity obo Barnard (JA24/2010) [2012] ZALAC 31; [2013] 1 BLLR 1 (LAC); 2013 (3) BCLR 320 (LAC); (2013) 34 ILJ 590 (LAC) (2 November 2012)

South African Police Services v Solidarity obo Barnard (JA24/2010) [2012] ZALAC 31; [2013] 1 BLLR 1 (LAC); 2013 (3) BCLR 320 (LAC); (2013) 34 ILJ 590 (LAC) (2 November 2012)

The Labour Appeal Court held that the Labour Court erred in treating the implementation of employment equity measures as subject to individual rights to equality and dignity. The Employment Equity Act and the appellant's Employment Equity Plan are constitutionally mandated restitutionary measures designed to address...

Source-derived case information.

Citation
[2012] ZALAC 31
Parties
Appellant: South African Police Services; Respondent: Solidarity obo Mrs R M Barnard
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
2 November 2012
Case Number
JA24/2010
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment
Outcome
Appeal upheld; Labour Court order set aside; application dismissed; no order as to costs.
Judges
Mlambo JP, Davis JA, Jappie JA
Legal Topics
Employment Equity Act, Affirmative Action, Section 9 Constitution, Unfair Discrimination, Numerical Targets, Service Delivery
Labour Law Constitutional Law Employment Equity Act Affirmative Action Section 9 Constitution Unfair Discrimination Numerical Targets Service Delivery

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Summary, issues, holding and outcome

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Parties

South African Police Services

Appellant

Solidarity obo Mrs R M Barnard

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment

Legal Issues

  1. 1 Whether the failure to appoint Barnard constituted unfair discrimination on the basis of race.
  2. 2 Whether restitutionary measures under section 9(2) of the Constitution are subject to individual rights to equality under section 9(1).
  3. 3 Whether the National Commissioner was justified in not filling the advertised post.

Ratio Decidendi

The Labour Appeal Court held that the Labour Court erred in treating the implementation of employment equity measures as subject to individual rights to equality and dignity. The Employment Equity Act and the appellant's Employment Equity Plan are constitutionally mandated restitutionary measures designed to address historical disadvantages and promote equitable representation. The National Commissioner was justified in not appointing Barnard, as her appointment would have aggravated the overrepresentation of white employees at the relevant level and undermined the objectives of the Employment Equity Plan. The failure to appoint Barnard did not constitute unfair discrimination, as the...

Court Disposition

Appeal upheld; Labour Court order set aside; application dismissed; no order as to costs.

Orders

  • The appeal is upheld.
  • The order of the Labour Court dated 24 February 2010 is set aside and replaced with: '1. The application is dismissed; 2. There is no order as to costs.'