Reynhardt v University of South Africa (2008 ) 29 ILJ 725 (LC)

Principle:

Where an affirmative action policy provides that once equity targets have been met, merit shall be the sole criterion, it will be unfair discrimination to continue to use race or gender as a criterion for appointment.

Facts:

The applicant alleged that he was discriminated against by his former employer on the ground of race in that it failed or refused to appoint him (a White person) in a position for which he was the most suitable candidate, but instead, it having improperly applied its own employment equity policy, appointed a less qualified and unsuitable candidate (a Coloured person) to the position.  The applicant was a university professor and formerly served a three year term as Dean of the Faculty of Science of Unisa.

Extract from the judgment:

[121]   There is no doubt in my mind that the respondent’s employment equity policy and guidelines conformed substantially to the norms, values and ideals envisaged in the Constitution and the EEA. It was indeed a noble and viable exercise aimed at, initially reducing, and, eventually eradicating, the unfair racial and gender imbalances that had existed in the occupation of top positions within the respondent’s academic and administrative management structures. Of fundamental  importance, however, was the manner the respondent, through its officials, implemented the said policy and guidelines. It seemed to me this case was primarily about the enquiry on that issue.

[123]   It was established during the evidence that the respondent sought to rely on its employment equity policy, guidelines and plan in its decision not to appoint the applicant but instead to appoint Professor Summers.  The respondent’s own document titled: “Employment Equity at Unisa – Guidelines to Departmental EE Teams” clearly prescribed, among other things, as follows:

  1. Occupational categories and levels where demographic profile satisfactory:

    In the event where your department/operational unit has achieved a state balance in a way, please do not bother yourselves to try and do anything then.  The University will have to consider applying the principle of the ‘most suitable candidate’ as and when vacancies have to be filled in such categories and level.  The principle of ‘preferential treatment’ in view of Affirmative Action’ considerations shall not apply in such incidences.  The monitoring process will take care and ensure that we do not create skewness again in applying the principle.”

[124]   This principle was also confirmed in the respondent’s employment equity plan that “in areas where numerical goals have been met already, the most suitable will be appointed or promoted to existing vacancies”.

[125]   From the evidence of Ms Baloyi and Mr Phatlhane, supported by the documentation presented in the Court Bundle, it was revealed (clearly against the liking of these two witnesses) that the respondent’s numerical target in relation to the filling of vacancies of Deans and Deputy Deans was 70%:30% in favour of Blacks at the time the applicant went for interview.  According to both Ms Baloyi and Mr Phatlhane, this target had not yet been reached, and that was the reason the employment equity considerations were taken into account, in favour of Professor Summers.  On this point, Mr Phatlhane initially testified that the ratio was 67%:33% in favour of Whites over Blacks prior to 31 March 2002.  However, when he was asked to name the White Deans and the Black Deans that would have constituted that ratio of 67%:33% in favour of Blacks, it transpired that Mr Phatlhane had included the names of Professors Neethling and Kritzinger in the White Deans list, despite the fact that these two Professors were no longer in the service at the time.  In addition, he also included the name of the applicant, which was erroneous because the post would have been vacant after the applicant’s term of office had expired.

[126]   It further transpired that Mr Phatlhane had regarded that the position of Dean of the Faculty of Law was permanently filled by Professor Maré (who was a White female) whereas the fact of the matter was that Professor Maré was only acting in the post.  On the contrary, Mr Phatlhane did not take into account the fact that Professor Maluleka had (as at the time of the applicant’s interview) already been recommended for appointment as Dean of the Faculty of Theology and Religious Studies.

[127]   This completely wrong statistical information was compiled and incorporated in a presentation by Mr Phatlhane and Ms Baloyi before the Selection Committee meeting which took place on 21 February 2005.  This wrong information was subsequently confirmed by Mr Phatlhane at the CCHR meeting of 19 March 2005 as being the motivation for applying the employment equity considerations and thus recommending Professor Summers for the job.

[128]   What was strange was the fact that Mr Phatlhane and Ms Baloyi (according to their evidence) had done full preparations for their presentation at the meeting on the eve of its sitting.  They must then have had all the correct statistics in front of them.  Indeed, I found it utterly beyond my comprehension that Mr Phatlhane could claim, as he did, that when he included the names of Professors Neethling and Kritzinger in the list of current-serving White Deans, he had probably used the “old list”.  To my mind, this was a very naïve and simplistic response from a senior official such as Mr Phatlhane was.

[129]   The applicant gave what I can safely describe as clear and straightforward evidence.  He knew his facts well in that he relied principally on objective factual information which could not be gainsaid by the respondent’s witnesses.  For example, it turned out to be a proven fact in his favour that at the time Professor Summers was appointed the ratio was already 75%:25% in favour of Black Deans over White Deans, which meant that the target of 70%:30% had already been reached and surpassed.  Upon Professor Summer’s appointment the ratio was further increased to 80%:20% in favour of Blacks (of course a calculation which excluded the vacancy of Dean in the Faculty of Law, in which Professor Maré, a White female, was acting for the time being).  It seems to follow, accordingly, that the application of the respondent’s employment equity policy, plan and guidelines in the present instance was not only a contravention of section 15(4) of the EEA but also a violation of the respondent’s own employment equity measures.

[133]   Accordingly, I am inclined to find that the applicant was unfairly discriminated against on the basis of his race when he was not appointed as Dean of the Faculty of Science for the second term, effective 1 April 2002.  He is, therefore, entitled to redress.  He has not sought reinstatement, but compensation and damages.