The Constitutional Court ruling in SAPS v Solidarity obo RM Barnard and Another may have been a setback for Renate Barnard and her lawyers, but it certainly is not a setback for the persons and/or groups that question and want to put the application of affirmative action (AA) in the workplace to the test, says Dirk Groenewald, of the Solidarity Centre for Fair Labour Practices.
Noting that section 9(2) of the Constitution states that AA measures are not unfair, he says this does not oust the court’s power to interrogate whether the measure is a legitimate restitution measure within the scope of the empowering section.
Says Groenewald: ‘The court reserves the right to evaluate these AA measures and to question the legitimacy thereof. This is definitely a plus factor as it puts an end to the Labour Appeal Court’s argument – and some of the state’s arguments – that AA measures are a policy decision made by the executive authority with which the courts cannot interfere.’ He points to the court’s statement that they not only have the right to determine whether the AA measures/goals are legitimate, but also whether their application complies with the Employment Equity Act, adding: ‘There is no valid reason why courts are precluded from deciding whether a valid Employment Equity Plan has been put into practice lawfully.’
He says the court brings clarity on the application of the Act, and specifically on whether designated employers should have employment equity plans in place when applying employment equity measures, and that the court ruling determined the following:
- The adjudication of discrimination cases involves a tripartite test and not an automatic onus of proof as contained in the Act.
- Employers must have employment equity plans in place when they apply AA.
- AA may not result in incompetent and unqualified people being appointed.
- AA may not amount to a quota system and absolute restrictions.
- The court reserves the right not only to evaluate AA measures, but also to evaluate the application thereof.
South Africa Today – South Africa News
