Opinion: ‘Real meaning of Renate Barnard case lost in political translation’

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By Piet Coetzer of the Intelligence Bulletin

The real significance of the Constitutional Court’s judgement in the Renate Barnard Affirmative Action case, indicating deep-seated systemic failures in the South African political economy, is being lost in political translation.

What seems to get lost in almost all commentary thus far on the judgement, as formulated by acting Chief Justices Dikgang Moseneke, is that the CC made a pronouncement in law purely on the case as presented to it. It was a very specific case that was in front of it and not the legal status or merits of a policy on, or plan for, employment practice in the South African Police Service (SAPS).

In that respect it found that the SAPS National Commissioner acted legally in deciding not to promote Barnard in terms of existing legislation, the constitution and its own Employment Equity Plan (EEP). It upheld the original judgement of the Labour Appeal Court (LAC) that there was no unfair discrimination against her based on race “as no person was appointed in the post” she applied for.

Fact is that the position was simply not filled in the absence of a suitable candidate other than a white woman when it was assessed that filling the position was not critical.

Judge Moseneke also very specifically pointed out that “the validity of the SAPS EEP was not challenged by Barnard”.

It is in these two details, the unavailability of a suitable alternative candidate for the particular position and the absence of a challenge of the EEP, that the real significance of the outcome of this nine-year-long battle in four courts is to found.

It testifies to a massive systemic failure of the political economy of the country that, after twenty years of democracy, there is still no situation in sight where candidates from all demographic groups can compete on a purely merit-based dispensation for promotion.

The SAPS decision to leave the position in question simply unfilled when a white woman was the only suitable candidate available, amounts to a vote of no confidence in the black members of the force.

It also represents evidence of the failure of, not only the education and training sector at large, but its own internal skills development programmes or lack thereof in some fields covered by its mandate.

That this is a serious national problem, not restricted to the SAPS, is sharply underlined by the just published World Economic Forum’s Global Competitiveness Report and index. The report rates South Africa in the 86th position out of 144 countries globally in the field of higher education and training and states that building a skilled labour force presents considerable challenges to the country.

Equity plan

The trade union Solidarity, which has valiantly fought Barnard’s legal battle for her, seems to have taken proper note of Judge Moseneke’s reference to the EEP of the SAPS.

In a statement afterwards Solidarity said it now “wants to tackle the source of the unfair implementation of affirmative action, namely irrational affirmative action plans”.

For Barnard it comes too late, but Solidarity also indicated that it is approaching the Labour Court to compel the SAPS to consult the union on its new affirmative action plan.

It argues that the existing unions within the SAPS do not look after the rights of minority groups. It is probably correct in this assessment and made an error of judgement to not in the Barnard case also target the EPP of the SAPS. To turn it into a purely racial battle was not the right way to go.

To get to a level playing field for all South Africans, irrespective of their demographic profile, is in national and therefore everybody’s interest. Not only EEP should come under scrutiny but also skills development plans and pressure built for improvement of education and training outputs at all levels.

As long as there is only looked at the output side of human resources with a demographic measurement in terms of numbers, without the input side being properly addressed, minorities will remain on the losing side.

In the long run the damage to the economy, as illustrated by the WEF report, will see it slipping back further, making everybody irrespective of race, members of a losing nation. The sooner we get to a situation where EEP legislation becomes unecessary, the better for everybody.

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