The legality of the exclusion of overrepresented groups from appointment and the concept of employment equity in light of the solidarity Obo Barnard case.

Abstract

Employment equity is a very crucial component in a country such as South Africa whose history is plagued with decades of unfair discrimination. Affirmative action measures attempt to provide equal opportunities to previously disadvantaged groups (designated groups) which did not have these opportunities afforded to them during the apartheid regime. During the milestone case of Barnard, the court established a principle which entailed that white people could be refused appointment if their race group was overrepresented in that workforce. This principle was later confirmed in a later Constitutional Court judgment as also being applicable to individuals from designated groups. Both the EEA and Barnard principle are aimed at achieving broadly representative workplaces but the latter has the potential of limiting the application of the former. Statistics from different bodies not only indicate that there are problems with the EEA but also show that white people are still predominantly occupying top management positions. This is problematic because individuals from designated groups are refused appointment due to adequate representation and this hinders their chances of being granted an equal opportunity. The determination of the legality of the principle is determined in this dissertation and whether this principle can continue to operate in our law having not been inserted into current legislation. Previous consideration of these research questions has failed to address this matter because on the face of it, both the Barnard principle and the EEA seem to be aiming to achieve the same goal. This dissertation analyses affirmative action measures as well as the implementation of the EEA whilst also considering the problems that could be associated with the continuous application of the Barnard principle. The results of the research demonstrate that although the Barnard principle has not been confirmed, it is likely that courts will continue to apply the principle and assign more weight to it then the measures provided in the EEA.