Franny Rabkin
13 November 2009
Johannesburg — TRADE union Solidarity will challenge the implementation of affirmative action in the police service and correctional services, taking to court 10 cases where white employees claim they were prejudiced because of the colour of their skin.
Solidarity charges that the police had, in some cases placed an "absolute barrier" on the promotion of white police officers because of affirmative action.
Affirmative action and employment equity are recurring features of SA's political and race debates. The cases could set new legal precedents in equality and affirmative action jurisprudence, whether or not the union wins.
The trade union announced yesterday that it would embark on "an intense legal campaign", bringing the 10 cases before the labour court.
The focus of the cases was not affirmative action per se, but the way it was being implemented, said deputy general-secretary of Solidarity Dirk Hermann.
Hermann said there was a constitutional obligation on the police to "prevent, combat and investigate crime".
This needed to be balanced against the constitutional provision that allowed for affirmative action, he said.
Instead, jobs remained vacant while suitably qualified white people were not appointed on the grounds of representivity, Hermann said.
Policing was being sacrificed for representivity, he said.
In the case of Capt Renate Barnard , the post she had applied for remained open for more than two years.
She was at Pretoria's crime investigation unit and applied for a superintendent level position. She was recommended by the interview panel, but passed over by the area commissioner.
Two years later, she reapplied for the post that was still vacant.
She was once again recommended by the interview panel and this time supported by the area commissioner.
Barnard was passed over by the national commissioner, "on the basis that (it) would not promote affirmative action".
Barnard's case will be heard on Monday in the Labour Court in Johannesburg.
But according to the South African Police Service annual report for 2008-09, there were only 426 vacancies out of a total of 183180 posts -- a 0,2% vacancy rate. Of these, 209 posts were considered "critical".
But Hermann said that he found these numbers "difficult to believe" and that the Public Service Commission's report for last year put vacancies in the public sector "at best" at 6,2%.
"That would make the police 30 times better than the public service as a whole. There's something wrong," he said.
Police spokesman, Snr Supt Lindela Mashigo, said the police's promotion policy did "take into consideration equity issues among other things" and confirmed that there had been promotions "in all racial groups this year".
In its response in the Barnard case, the police service said that, even if there was "differentiation or discrimination" on the grounds of race, "it was based on legitimate grounds and a defensible employment policy".
Hermann said Solidarity's intention was that these cases should set a legal precedent.
Labour law expert, Talita Laubscher of Bowman Gilfillan, said the general legal principle was that affirmative action measures must be rational and part of an employment equity plan.
Laubscher said the measures could not be "arbitrary or just a thumb-suck".
She said it was likely that, in addition to rationality, a court might also consider the fairness of a measure.
This was "particularly where the measure amounts to an absolute barrier to the advancement or appointment" of white people.
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