Dudley v City of Cape Town (2004) 25 ILJ 305 (LC)

Principle:

The Employment Equity Act does not establish an independent individual right to affirmative action. The case of Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC) which suggested that an employee has an individual right to affirmative action was incorrectly decided.

Facts:

An applicant (a black female) for the post of Director: City Health asked the court to set aside the appointment of the successful candidate (a white male), and to appoint her to the post, or to reconsider the appointment in compliance with its non-discrimination and affirmative action obligations. The judge held that the EEA does not establish an independent individual right to affirmative action that could be decided by the Labour Court and refused the order sought by the applicant.

The court distinguished between Chapter II of the EEA (which prohibits unfair discrimination and which is directly enforced by a single aggrieved individual or by the members of an affected group) and Chapter III (which concerns affirmative action measures and which can only be brought into operation within a collective environment).

Extract from the judgment:

[At 320D]   The structure of chapter II [of the EEA] is such that, by definition, it is intended to and can be brought into operation only within a collective environment.

[At 324D]   Enforcement of [Chapter I] is undertaken through the declaration of a dispute in terms of s 10, which posits the CCMA as the initial forum. In the event of an unsuccessful conciliation, the dispute then falls to be adjudicated by this court... Section 10 governs only disputes that concern chapter II. Conversely, it is plain that any issue arising in respect of chapter III falls within the framework of chapter V [This stipulates disputes being resolved by a labour inspector and Director-General].