Why is this case different from the Barnard case?

Although there are indeed similarities with the Barnard case (an interviewing panel had found nine of the ten applicants to be the most suitable / recommended candidates for appointment, but they were denied promotion solely based on considerations of race; in some instances the positions were not filled), there are some legal differences.

In Barnard the Constitutional Court found that the Employment Equity Plan that informed the decision not to appoint Barnard, was not challenged. The court further argued that our case was one of reviewing the decision of the National Commissioner, but that our case was not pleaded as such. The Court further reached the conclusion that in deciding not to appoint Barnard the National Commissioner had indeed taken factors other than race into consideration.

This is clearly a highly technical basis on which the court decided to find against us. Be that as it may, in this case (the DCS one) the plan was challenged directly, and it was challenged on the basis that in setting its targets (which targets were to be implemented and to be achieved in each province) the plan only took into account national race demographics.

Further to this, we also sought to review the decision of the National Commissioner in our pleadings by relying on the fact that in most instances race was the only consideration for not appointing the applicants. Accordingly, the technical issues raised by the Constitutional Court have now been addressed and the legal scope in terms of which the Court is required to adjudicate this case is therefore much broader.

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