The Labour Court in Johannesburg today ruled in favour of the trade union Solidarity in what itb says is a watershed case regarding the implementation of affirmative action.
In October last year Solidarity argued the case in the Labour Court on behalf of Captain Renate Barnard against the South African Police Service (SAPS) over their implementation of affirmative action.
According to the union’s deputy general secretary, Dirk Hermann, the ruling means that the SAPS have gone too far in its implementation of affirmative action and that they were guilty of unfair racial discrimination in the name of affirmative action. “The implication of today’s ruling is that companies and state institutions that use representivity as the most important criterion in the implementation of affirmative action are acting illegally. We will fight each possible instance where this is the case.”
The ruling also determines that it is unfair to leave positions vacant just because no suitable candidate from the designated group is available. “We believe that all South Africans are suffering as a result of the poor service delivery by various state institutions, including the SAPS, because competent white people are not appointed in core positions while no black candidates are available for these positions. No one benefits from this type of implementation of affirmative action.”
Solidarity has nine other similar cases, eight of which are against the SAPS, which will possibly heard in court later this year. “We are positive that today’s ruling will prevent employers, including the state, from completely denying white South Africans any opportunity for promotion,” Hermann said.
Barnard applied for an advancement position as superintendent of the complaints investigation unit for the first time in November 2005. She has been working as a captain in the same unit since September 2004. Although the interview panel recommended Barnard as the suitable candidate for the appointment the Regional Commissioner resolved not to appoint Barnard because her appointment would not promote representation. In the meantime the position has not been filled.
When the position was again advertised in May 2006 Barnard again applied and she was once again nominated as the most suited candidate. This time the same Regional Commissioner recommended that Barnard be appointed to the position. According to the Regional Commissioner’s recommendation the wrong message would be conveyed if Barnard was not appointed to the position this time. “The recommendation also indicated that appointments and promotions have to be made to tackle service delivery,” added Hermann. After the position was advertised for the third time it was withdrawn.