Ultimately, however, the judgment concluded that there is sufficient external evidence to show that the National Commissioner’s decision was fair. The judgment held that the National Commissioner’s reasons were sparse on why he thought service delivery was not a pressing concern and why he rejected Ms Barnard’s application even though, as a woman, she is a member of a designated group. In the application of that standard, the National Commissioner’s reasons were important as the reasons provide evidence of whether the Employment Equity Plan was implemented fairly. They held that the appropriate standard by which to evaluate this claim was on the basis of fairness.
However, they found that it was necessary to adjudicate Ms Barnard’s claim that the National Commissioner’s decision was at odds with the Employment Equity Act. They agreed with Moseneke ACJ that Ms Barnard had not brought a review challenge. In a separate concurring judgment, Cameron J, Froneman J and Majiedt AJ emphasised the possible infringement of dignity in the implementation of restitutionary measures, and the importance of giving adequate reasons for decisions. Accordingly, he upheld the appeal and concurred in the separate judgment of Jafta J. He held that on the facts this cause of action was, in any event, without merit.
He also held that the other cause of action, the review of the National Commissioner’s decision, was only raised for the first time on appeal and was therefore not properly before the Constitutional Court. He found that the appeal in that Court was decided on the wrong principle. The Supreme Court of Appeal was obliged to examine the equality claim through the prism of section 9(2) of the Constitution and section 6(2) of the Act because the validity of the SAPS Employment Equity Plan was not under challenge by Ms Barnard. He therefore found that the Supreme Court of Appeal misconceived the issues before it, as well as the controlling law. In the main judgment by Moseneke ACJ, writing for the majority, (Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J, Madlanga J and Zondo J concurring) held that the SAPS Employment Equity Plan is a restitutionary measure contemplated in section 9(2) of the Constitution and section 6(2) of the Act. The Court is unanimous that the appeal should be upheld. It held that Ms Barnard thus suffered unfair discrimination in terms of section 9(3) of the Constitution and section 6(1) of the Act. The Supreme Court of Appeal reversed the Labour Appeal Court’s decision, and found that Ms Barnard was discriminated against on the listed ground of race and that the SAPS failed to rebut the presumption of unfairness in this regard. Thus the decision not to promote Ms Barnard was not unlawful because the National Commissioner was not obliged to fill the advertised post. It found that the implementation of restitutionary measures is not subject to an individual’s right to equality in terms of section 9(3) of the Constitution. On appeal, the Labour Appeal Court found in favour of SAPS.
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