South African Police Service v Solidarity obo Barnard

Captain Renate Barnard, a white female officer in the South African Police Service (SAPS), twice applied for promotion to superintendent-level posts in 2005 and 2006 within the National Inspectorate Division. On both occasions, she was the top-scoring candidate and recommended by racially diverse interview panels as the most suitable candidate. The National Commissioner declined to appoint her, citing the need to advance employment equity and racial representivity in terms of the SAPS Employment Equity Plan and National Instruction 1 of 2004. The posts were left unfilled or withdrawn, despite being re-advertised, and Ms Barnard lodged a grievance and later an unfair discrimination claim, alleging race-based discrimination under section 9 of the Constitution and section 6 of the Employment Equity Act (EEA).

The appeal was upheld. The order of the Supreme Court of Appeal was set aside, and the order of the Labour Appeal Court (which dismissed Ms Barnard’s discrimination claim) was reinstated. No order as to costs was made.

This case is a leading authority on the application of affirmative action and employment equity in South African law. It clarifies that lawful restitutionary measures under section 9(2) of the Constitution do not constitute unfair discrimination and that employers may decline to appoint a top-scoring candidate if doing so would undermine employment equity objectives. The judgment affirms the legitimacy of representivity targets in employment equity plans and delineates the balance between individual equality claims and transformative constitutional goals.