Although it came as a shock, other cases the union undertook on behalf of its members belonging to racial minority groups — for example involving correctional services — would continue, he said.
He was speaking at a seminar regarding the Barnard case in Centurion.
Last Tuesday, in a majority judgment the Constitutional Court found the police commissioner rationally and lawfully implemented the police’s affirmative action plan.
The ruling meant Solidarity’s legal efforts to seek Barnard’s promotion had come to an end in South Africa.
“If you were unsure about the legal framework of affirmative action before the judgement, you will be even more unsure now,” Hermann said.
Dirk Groenewald, head of the union’s Centre for Fair Labour Practices, said the judgement failed to provide a clear test for evaluating affirmative action disputes.
“The court specifically declined to clarify the issue of what a quota system would be.”
Numerical quotas for affirmative action and absolute barriers to the employment or promotion of non-designated groups were not provided for in the Employment Equity Act.
“We feel the court did, however, clarify… that they (the courts) are entitled to scrutinise and interrogate affirmative action measures and how they are implemented.”
This meant that previous arguments, that affirmative action as a policy issue could only be decided by the executive, had been crushed.
In terms of the judgment, therefore, affirmative action plans and how they were implemented could still be challenged in principle.
The Constitutional Court ruling established that affirmative action could not be used to promote people who were manifestly unsuitable, a point that could be cited in future cases.
Advocate Martin Brassey, who represented Solidarity in the Barnard case, said using hard quotas to achieve transformation without regard for individual human dignity, amounted to social engineering.
South Africa lacked a conceptual matrix to grapple with these tensions.
“As white people, we get overborne by guilt, as black people we get overborne by rage,” Brassey said.
A liberal approach to affirmative action, taking race, gender, individual merit and the needs of an institution into account, would yield greater benefits to society than such social engineering.
In Barnard’s case, however, it appeared the category of race was given preference over the other considerations combined.
While the judgment precluded Solidarity from taking further legal action, Brassey said the matter could be taken to the United Nations.
This was because South Africa had ratified a UN convention against race norming and social engineering.
It would be a “supreme irony”, given the country’s history, for South Africa to be referred to the UN for promoting race discrimination, Brassey said.