n Journal for Juridical Science - The unresolved search for the proper standard of review of affirmative action :

Volume 38, Issue 2
  • ISSN : 0258-252X



In , the Supreme Court of Appeal (SCA) set aside the order of the Labour Appeal Court (LAC), which upheld the decision of the National Commissioner of Police not to appoint a white female (Barnard) to the position of superintendent in the National Evaluation Services Division of the South African Police Service (SAPS). The most important issue raised by the judgments is the proper standard of review of affirmative action measures in terms of section 9(2) of the and section 6(2)(a) of the . The Labour Court (LC), the LAC and the SCA all subscribed to different versions of what the standard of review ought to be. In so doing, they also applied different interpretations of the leading judgment of the Constitutional Court on affirmative action, . In this note, the different interpretations will be identified and analysed.

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