The court confirmed that while employment equity is important it should never be regarded as an absolute bar to the appointment and advancement of non-designated employees.
In the recent case of Solidarity obo Barnard v SAPS (165/2013)  ZASCA 177 (28 November 2013) the court had to consider whether Barnard, an employee of the South Africa Police Services ("SAPS"), had been unfairly discriminated against in terms of the EEA by virtue of the SAPS failing to promote her.
Barnard was employed by the SAPS as police captain. She was a white female. She twice applied, and was twice rejected, for a promotion to the post of superintendent in a specialised unit of the SAPS. On both occasions Barnard scored the highest scores, she was also the only applicant who showed a unique blend of enthusiasm and passion to deal with members of the community. Notwithstanding this, the SAPS rejected her application on both occasions, instead electing to withdraw the position. The SAPS justified this decision on the basis of the need for representivity within the workplace and on the basis that the post was not critical and therefore did not need to be immediately filled.
Barnard contended that the SAPS' failure to appoint her to the post when there were no other suitable candidates amounted to unfair discrimination. The Labour Court agreed with her contention. The Labour Appeal Court disagreed with the Labour Court and the matter then came before the Supreme Court of Appeal.
The Supreme Court of Appeal, in finding that there had been unfair discrimination, made the following material findings:
This case makes clear that while the objects of ensuring employment equity are necessary for ensuring a future which will eventually be colour blind it should not be construed as an absolute bar to the appointment and advancement of employees from non-designated groups. The EEA calls for a more nuanced and inclusive stance in implementing measures aimed at the rectification of past injustices.