CCT01/14

[2014] ZACC 23

2014 (6) SA 123 (CC)

[2014] 11 BLLR 1025 (CC)

2014 (10) BCLR 1195 (CC)

(2014) 35 ILJ 2981 (CC)

Moseneke ACJ Majority judgment

Cameron J, Froneman J, Majiedt J separate judgment

Van Der Westhuizen J separate judgment

Jafta J separate judgment

20 March 2014

2 September 2014

http://hdl.handle.net/20.500.12144/3752

Application for leave to appeal against a judgment of the SCA: 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). See also earlier judgments of the Labour Appeal Court: 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) and the Labour Court:Solidarity obo Barnard and Another v South African Police Services (JS455/07) [2010] ZALC 10; 2010 (10) BCLR 1094 (LC) ; (2010) 31 ILJ 742 (LC); [2010] 5 BLLR 561 (LC) (24 February 2010).

Section 9 of the Constitution — equality — unfair discrimination — restitutionary measures Employment Equity Act 55 of 1998 — section 6 — unfair discrimination — affirmative action measures Employment Equity Act 55 of 1998 — section 15 — affirmative action measures — designated employer South African Police Service Employment Equity Plan — numerical targets — designated groups South African Police Service National Instruction 1 of 2004 — National Commissioner vested with discretion to fill vacancy to advance representivity and enhance service delivery. Appeal concerning a decision of the National Commissioner of the South African Police Service not to promote Ms Barnard on the grounds that this would not enhance racial representivity at that salary level. Ms Barnard argued, and the Supreme Court of Appeal held, that the decision constituted unfair discrimination on the grounds of race in contravention of section 9 of the Constitution (equality) and section 6 of the Employment Equity Act 55 of 1998. The Court held that the decision not to promote Ms Barnard was a restitutionary measure contemplated in section 9(2) of the Constitution and section 6(2) of the Employment Equity Act and was thus constitutionally compliant. The appeal by SAPS was upheld. A separate concurring judgment emphasised the importance of implementing restitutionary measures without infringing on dignity. A second concurring judgment noted that while Ms Appeal concerning a decision of the National Commissioner of the South African Police Service not to promote Ms Barnard on the grounds that this would not enhance racial representivity at that salary level. Ms Barnard argued, and the Supreme Court of Appeal held, that the decision constituted unfair discrimination on the grounds of race in contravention of section 9 of the Constitution (equality) and section 6 of the Employment Equity Act 55 of 1998. The Court held that the decision not to promote Ms Barnard was a restitutionary measure contemplated in section 9(2) of the Constitution and section 6(2) of the Employment Equity Act and was thus constitutionally compliant. The appeal by SAPS was upheld. A separate concurring judgment emphasised the importance of implementing restitutionary measures without infringing on dignity. A second concurring judgment noted that while Ms Appeal concerning a decision of the National Commissioner of the South African Police Service not to promote Ms Barnard on the grounds that this would not enhance racial representivity at that salary level. Ms Barnard argued, and the Supreme Court of Appeal held, that the decision constituted unfair discrimination on the grounds of race in contravention of section 9 of the Constitution (equality) and section 6 of the Employment Equity Act 55 of 1998. The Court held that the decision not to promote Ms Barnard was a restitutionary measure contemplated in section 9(2) of the Constitution and section 6(2) of the Employment Equity Act and was thus constitutionally compliant. The appeal by SAPS was upheld. A separate concurring judgment emphasised the importance of implementing restitutionary measures without infringing on dignity. A second concurring judgment noted that while Ms Barnard did not fall within a previously disadvantaged racial group, she did fall within a previously disadvantaged gender group, and may have been entitled to an affirmative action promotion on that basis. In a third separate concurring judgment, the Court cautioned against entertaining constitutional issues raised for the first time on appeal. A third concurring judgment emphasised the themes of the main judgment. Main judgment: Moseneke ACJ (Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J, Madlanga J and Zondo J concurring). Separate concurrences: Cameron J, Froneman J and Majiedt AJ; Van der Westhuizen J; Jafta J (Moseneke ACJ concurring).