IN THE NEWS: The Barnard decision in context
- Jendi Moore
- Sep 29, 2014
- 2 min read
The Constitutional Court’s decision relating to racial discrimination by the SAPS in its employment equity practices in the well-known Barnard case has been much maligned in the media and by the public in the last month or so. Many people feel betrayed by the court’s ruling, which essentially overturned the decision of the Supreme Court of Appeal and the Labour Court before that, that the SAPS’ hiring practices constituted racial discrimination and in effect amounted to applying racial quotas, which are not permissible under the Employment Equity Act. However, one wonders how many of the media critics actually bothered to read the court’s judgment (which admittedly comprises of some 114 pages, which might be slightly unpalatable today’s facebook and twitter generation) before condemning it…
A closer scrutiny of the judgment reveals that, in the end, the court was not called upon to decide on racial discrimination or the Employment Equity Act. A court can legally only render judgment on the issues before it an in this particular case the Respondent made so many concessions during the hearing of the matter, that it essentially changed the goalposts substantially. The Constitutional Court effectively heard an entirely different case from the one that was argued in the courts below it, and this case was based on the completely different grounds of just administrative action, rather than racial discrimination and employment equity. The court therefore did not have the opportunity to make a finding on these important issues and was bound to uphold the SAPS’ appeal, based on the concessions made by the Respondent.
It is extremely unfortunate that this opportunity to allow the court to decide on such a critical issue was squandered. The organisation that represented Barnard has indicated that they will proceed with many similar cases in the future and it is hoped that this time they will manage to keep the issues to be decided wide enough to allow the Constitutional Court to properly consider them.
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