In a landmark affirmative action case, the Supreme Court of Appeal yesterday struck down the use of racial quotas in determining job appointments, finding that it was unfair to attempt to achieve employment equity through the rigid application of a numerical formula.
The case has far-reaching implications for the public service because several government departments use rigid demographics-based quotas to determine placements and promotions.
It also clarifies how the Employment Equity Act should be interpreted. The act has been fiercely debated in recent weeks, with the DA claiming that it enforces adherence to racial quotas.
The judgment points out that the act specifically prohibits quotas.
The case was brought by trade union Solidarity on behalf of police captain Renate Barnard, who was twice denied promotion because of her race, despite being the strongest candidate.
On both occasions she was recommended as the best candidate but was denied appointment by the national commissioner of police on the grounds that white women were over-represented.
Instead, the commissioner chose not to appoint anyone. On a third occasion when she applied for the job, the vacancy was withdrawn.
Barnard has fought the case for eight years, winning a judgment of unfair discrimination in the Labour Court in 2010. But the judg ment was overturned by the Labour Appeal Court two years later.
Yesterday's judgment by a full bench of the Supreme Court of Appeal was unanimous. The court awarded her costs and ordered the police to compensate her for loss of income.
The head of Solidarity's Centre for Fair Labour Practices said the union had 12 similar cases against the police.
Solidarity executive officer Dirk Hermann described the ruling as "a huge victory for Solidarity and Captain Barnard".
The court found that if an employers' employment equity targets were effectively quotas, unfair discrimination would result.
"Adopting that attitude would turn numerical targets into quotas, which are prohibited in terms of the Employment Equity Act," the judgment said.
Section 15 (3) of the Employment Equity Act of 1998 states that the equity measures that an employer must implement "include preferential treatment and numerical goals, but exclude quotas".
The act was amended last month but section 15(3) is unaltered.
A host of misconceptions has surrounded the discussion of the amendment, particularly that it introduces racial quotas.
The SCA judgment, written by Judge Mohammed Navsa, says that, though the act is an attempt to create a nonracial and balanced society, "it feels like a throwback to the grand apartheid design" and race classification.
Judge Navsa appealed to people on both sides of the divide to do their utmost to overcome past inequalities fairly.
"If we are to achieve success as a nation, each of us has to bear in mind that, wherever we are located, it will take a continuous and earnest commitment to forge a future that is colour-blind.
"This necessarily includes serious and sustained efforts . in order to build a cohesive and potentially glorious rainbow nation. For now, ironically, in order to redress past imbalances with affirmative action measures, race has to be taken into account.
"We should do so fairly and without losing focus and reminding ourselves that the ultimate objective is to ensure a fully inclusive society - one compliant with the constitutional project."
