Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC)

Principle:

While affirmative action is normally a defence in the hands of an employer who discriminates in favour of a person from a designated group, it may also found an unfair discrimination cause of action for an employee if an employer fails to promote the achievement of equality through taking affirmative action measures.

Facts:

An applicant for a job referred a dispute on the basis that the failure to shortlist him constituted unfair discrimination prohibited by the Employment Equity Act 55 of 1998. The court's decision deals with the employer's exception to the applicant's statement of claim that it was vague and lacked essential averments. The court found that the court rules do not require an elaborate and complex statement of all facts

Extract from the judgment:

[At 1146B]   If an employer fails to promote the achievement of equality through taking affirmative action measures., then it may properly be said that the employer has violated the right of an employee who falls within one of the designated groups not to be unfairly discriminated against... [A]ffirmative action can found a basis for a cause of action.