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Johannesburg - Former Lieutenant Colonel Renate Barnard said on Tuesday she was disappointed that the Constitutional Court ruled in favour of the SA Police Service (SAPS) in her affirmative action case.
"I am never against affirmative action. I was against the way they implemented affirmative action," she told reporters in Johannesburg following the court's judgment.
"But I am very disappointed, especially for loyal officers in the SAPS that are serving there despite difficult circumstances."
She was disappointed the court did not consider "one of the best Constitutions in the world", according to which there would be no discrimination in South Africa.
Trade union Solidarity, who represented Barnard, echoed her disappointment.
"We did not expect this judgment. We can't believe that the Constitutional Court said today that this injustice against Renate Barnard is actually in line with the South African Constitution," Solidarity chief executive Dirk Hermann said.
"We believe that history will show that this judgment was wrong."
Unanimous order
The court on Tuesday granted the SAPS leave to appeal against a ruling in the affirmative action case.
"The following unanimous order is made... leave to appeal is granted," acting Chief Justice Dikgang Moseneke said in his judgment.
Chief Justice Mogoeng Mogoeng was in court on Tuesday. However, the majority judgment was written by Moseneke in his acting capacity.
The SAPS appealed against a Supreme Court of Appeal (SCA) decision that it had discriminated against Barnard on the basis of race.
Moseneke said the appeal against the SCA decision was upheld.
"The order of the Supreme Court of Appeal is set aside," he said.
He said the SAPS employment equity plan was not challenged, and the court found the plan was lawfully and rationally implemented by the police commissioner.
Several other AA cases
Hermann said Solidarity would continue with several other affirmative action cases.
"In the next round that we will take, will be on behalf of the employees from correctional services in the Western Cape, we will definitely there attack the plan."
He said Solidarity was considering taking complaints about current affirmative action plans to international bodies.
Barnard's affirmative action case goes back to 2005 when she applied for the post of lieutenant colonel, which was superintendent according to the old rankings, for the first time.
She twice applied unsuccessfully for promotion to superintendent within the police's national evaluation services, which deals with complaints by the public and public officials about police services.
Despite recommendations by an interview panel and her divisional commissioner, the national police commissioner did not appoint her to the position on the basis that racial representation at the level of superintendent would be negatively affected.
Working in the private sector
The position was advertised for a third time, but was withdrawn when Barnard reapplied.
Solidarity's case against the SAPS, on behalf of Barnard, was referred to the Labour Court. In February 2010 the court ruled in the trade union's favour.
The court ruled Barnard be promoted retrospectively from 27 July 2006 to superintendent (lieutenant colonel according to the present ranks).
In May 2011, the SAPS was granted leave to appeal and in November 2012 the Labour Appeal Court held for the SAPS.
The SCA ruled in November last year in favour of Barnard and the union. The SAPS then applied for leave to appeal in the Constitutional Court. The court heard the matter in March and judgment was reserved at the time.
Barnard resigned from the police in June. She told reporters on Tuesday she was currently working in the private sector, doing forensic investigations.
Moseneke said on Tuesday that the Labour Appeal Court's decision was confirmed.
"There is no order as to costs to the Labour Court, to the Labour Appeal Court, to the Supreme Court of Appeal, and to this court," he said.
