A critical evaluation of the affirmative action policy in South Africa in relation to the case of South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (ICC)

Abstract

In 1948, colonial rule in South Africa adopted the infamous apartheid system, whose racial segregation policies saw the systematic exclusion of Blacks from key economic, political and social sectors of society, and restricted their freedom of movement. Laws were passed excluding black people from employment positions and restricting them primarily to manual and menial labour. The end of apartheid in 1994 marked a transition to a more inclusive system of government. However, for the new government to move forward, it was imperative that the imbalances of the past be redressed in order to place previously disadvantaged racial group on an even footing with the dominant minority group. Section 9 of the Constitution enshrines the right to equality for everyone and prohibits discrimination on the basis of sex, race or many other demographic factors. But an important exception to the right of formal equality exists in order to advance substantive equality. It is suggested that ―policies and practices put in place to suit everyone may appear to be non-discriminatory, but may not address the specific needs of certain groups of people. In effect they are indirectly discriminatory, creating systemic discrimination.‖1 Formal equality, it is argued, applied without reasonable exceptions aimed to correct existing and historical discrimination, can only reinforce and continue the old discriminatory policy de facto. Affirmative action (AA) is the flagship policy endeavour of a moral philosophy that prioritizes substantive equality over formal. In the workplace, AA aims to achieve demographic equality in all levels of the labour force, but the application of such policies is complex. Courts have grappled with the implementation of AA measures and with ethical and constitutional consideration. Does the exclusion of non-black racial groups from certain positions, even on the basis of a claim to improve substantive equality, amount to discrimination and is it therefore, in violation of the Constitution? The first Constitutional Court case to deal with AA measures was the 2004 Minister of Finance and Others v Van Heerden.2 This paper was the locus classicus until in 2014, when the Barnard case, the focus of this paper, changed the application of law, now the binding judgment with 1 S Fredman “Providing Equality: Substantive Equality and the Duty to Provide” (2005) 21 SAJHR 163. 2 Minister of Finance and Others v Van Heerden 2004 (6) SA 121 (CC). respect to AA measures. This paper will critically analyse the judgment of the Barnard case and concludes with a discussion of how and where the court erred in its judgment.