Accountability, Contextualisation and the Standard of Judicial Review of Affirmative Action: Solidarity obo Barnard v South African Police Services
The South African Law Journal 130(1) 2013
Posted: 25 Aug 2015 Last revised: 12 Sep 2015
Date Written: 2013
The decision in Solidarity obo Barnard v South African Police Services (2010) 31 ILJ 742 (LC) (‘Barnard’) has, once again, raised the issue of the proper standard of review of affirmative action measures. The Labour Court ruled that under s 6 of the Employment Equity Act 55 of 1998 (‘EEA’) the respondent bears the onus of proving the fairness of its decision not to appoint the applicant, a white female. This approach contradicts the Constitutional Court’s leading judgment on the test for affirmative action under s 9(2) of the Constitution. In Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) (‘Van Heerden’), the court held that affirmative action measures falling within the ambit of s 9(2) are not subject to the presumption of unfairness in terms of s 9(5) of the Constitution. Given the obvious importance of s 9 of the Constitution for the interpretation of the EEA, the contradictory judicial approaches set out above deserve closer scrutiny. This note compares the judgments by examining their implications with reference to two issues of fundamental constitutional importance. The first issue concerns how the standard of judicial review affects the degree of public accountability expected of the state for actions which limit rights. Judicial review institutionalises the degree of public accountability through the imposition of a particular burden of justification. It will be argued that the burden of justification required in terms of the rationality-based standard of review adopted in Van Heerden is too deferential to be able realise the degree of accountability required of state action which impacts on equality rights. The fairness standard applied in Barnard is better suited to meet the constitutional expectations in this respect. Secondly, judicial standards of review also determine the factors which constitute the scope of the contextual framework for the adjudication of rights disputes. Therefore, the choice of a standard of review is vital in respect of the deliberative or discursive inclusivity of the adjudicative process. Again, it will be contended that the Barnard standard of review is preferable and an ideal way of resolving constitutional disputes in an inclusive and integrated manner.
Keywords: affirmative action, unfair dsicirmination, justification, standards of judicial review, rationality, fairness, proportionality
JEL Classification: J7
Suggested Citation: Suggested Citation