The unresolved search for the proper standard of review of affirmative action: Solidarity obo Barnard v SAPS

Abstract

In Solidarity obo Barnard v SAPS, the Supreme Court of Appeal (SCA) set aside the order of the Labour Appeal Court (LAC), which upheld the decision of the National Commissioner of Police not to appoint a white female (Barnard) to the position of superintendent in the National Evaluation Services Division of the South African Police Service (SAPS). The most important issue raised by the judgments is the proper standard of review of affirmative action measures in terms of section 9(2) of the Constitution and section 6(2)(a) of the Employment Equity Act (EEA). The Labour Court (LC), the LAC and the SCA all subscribed to different versions of what the standard of review ought to be. In so doing, they also applied different interpretations of the leading judgment of the Constitutional Court on affirmative action, Minister of Finance v Van Heerden. In this note, the different interpretations will be identified and analysed.