A House Divided: Grappling with Affirmative Action in South Africa
It doesn’t require much imagination to see that affirmative action policies implemented for the good of society exact a toll on the individuals who lose out. This is especially true in South Africa, which enshrines the use of such measures within section 9(2) of the Constitution. But what is the standard of review to be applied when challenging the implementation of a measure that is otherwise constitutionally compliant? On 2 September 2014 the Constitutional Court of South Africa handed down a fractured, frustrating judgment on this topic in the case of South African Police Service v Solidarity obo Barnard, though perhaps for understandable reasons.
Ms Barnard, then a captain in the SAPS, applied twice for a post carrying a promotion and, despite being by some measure the best candidate, was unsuccessful. She challenged the second refusal which was made by the National Commissioner on the basis that her appointment would not enhance racial representivity at that particular salary level, where white women were already over-represented.
The finding of the Labour Court for Ms Barnard was overturned by the Labour Appeal Court, who were in turn overruled by the Supreme Court of Appeal.
Previously, Ms Barnard had argued that she had been subject to unfair discrimination. Then, before the Constitutional Court, she changed tack, instead arguing that by declining to appoint her the National Commissioner had made an unlawful decision, shifting the focus from constitutional compliance to the measure’s implementation in administrative law. An entirely new line of attack. A more united court might have been able to navigate a path to a unanimous judgment. Instead, dismissing the appeal, the bench produced four separate concurring judgments.
Jafta J considered that this shift in Ms Barnard’s argument was sufficiently radical that it should not be dealt with, as the question of appropriate standard “was not canvassed at all on the papers”. Moseneke ACJ, writing for the majority, concurred but decided to press on anyway.
His view was that reasonableness was the correct standard and that the reasons given for the refusal were not so scant as to justify a finding of unreasonableness. He noted that the over-representation of white women at that salary level was “pronounced”. That Ms Barnard had since received promotion to the rank of Lieutenant-Colonel. She knew the score and accepted and even supported the SAPS’ employment equity plan.
The majority judgment is hard stuff and some may claim that when affirmative action is successfully invoked minorities will be given short shrift unless the other side’s conduct has been outrageous. This would explain the tone of the joint concurring judgment of Cameron J, Froneman J and Majiedt AJ. Ms Barnard’s case was squarely before the Court because it raised the question of whether the implementation of the plan was “so rigid as to constitute the use of quotas” (which are prohibited). Affirmative action is akin to “fighting fire with fire” and raises the prospect of infringing the right to human dignity under section 10 of the Constitution. This need for “heightened scrutiny” therefore justifies “fairness” as being the appropriate standard of review. An open-ended norm, but one which the minority argued was no less open-ended than “reasonableness”, “negligence”, “public policy” or other common concepts in law. Under their analysis the result is the same, but it is a much closer call.
Van der Westhuizen J’s judgment expressed scepticism of the fairness standard but gave further consideration to the question of human dignity as part of the rights-balancing exercise that the Court was engaged in. An individual must not be treated as “a mere means to achieve an end” to the extent that their “place in society and in the Constitution is denigrated”. However, he concluded that “the impact on [Ms Barnard’s] dignity is not excessively restrictive and indeed reasonably and justifiably outweighed by the goal of the affirmative measure.”
So a fragmented decision reflective of the controversy of the subject matter in South African society in general. The push for a heightened standard of review when scrutinising the implementation of affirmative action measures has been clearly defeated, but it will be interesting to see if the dignity analysis is taken up in subsequent cases.