Cases listed under subject matter

Affirmative action

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Alexandre v Provincial Administration of the Western Cape Department of Health (2005) 26 ILJ 765 (LC)

Reliance on the race of an applicant for employment is legitimate and does not amount to racial discrimination. It is in accordance with section 6(2)(a) of the EEA and is not unfair discrimination.

Chinese Association of SA & Others v The Minister of Labour & Others HC(TPD) case no. 59251/2007 (date of judgment 18 June 2008)

South African Chinese people fall within the ambit of the definition of "black people" as defined in section 1 of the EEA and the BBBEEA.

Director-General of the Department of Labour v Jinghua Garments (Pty) Ltd (2007) 28 ILJ 880 (LC)

Fines for violation of the EEA are based on the offence of not complying with the compliance order, rather than on each individual violation of the Act.

Du Preez v Minister of Justice and Constitutional Development & others [2006] 8 BLLR 767 (SE)

Where affirmative action has the effect of the absolute inclusion of designated group members to the absolute exclusion of the non-designated group, this does not meet the constitutional requirements of fairness and proportionality.

Dudley v The City of Cape Town (LAC, August 2008)
  1. It is not competent to institute Labour Court proceedings for a breach of chapter III of the EEA, prior to exhausting the enforcement procedures in Chapter V.

  2. An employer’s failure to apply affirmative action by benefitting a member of a designated group, cannot in law constitute unfair discrimination.
Dudley v City of Cape Town (2004) 25 ILJ 305 (LC)

The Employment Equity Act does not establish an independent individual right to affirmative action. The case of Harmse v City of Cape Town was incorrectly decided.

Ethekweni Municipality v Nadesan and Others (D 1681-17) [2021] ZALCD 1 (3 February 2021)

A practical test to assess the lawfulness of affirmative action measures: Is the decision rational? If it's rational, is it unfair when considering internal and external factors?

Gordon v Department of Health: KwaZulu-Natal [2008] 11 BLLR 1023 (SCA)
  1. In the absence of an equity plan, an employer is obliged to comply with the legislative framework prohibiting discrimination on the grounds of race or sex.

  2. An ‘affirmative action’ appointment made without an equity policy is an ad hoc and arbitrary act. It is not, in itself, an affirmative action ‘measure’
Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC)

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.

Henn v SA Technical (Pty) Ltd (2006) 27 ILJ 2617 (LC)

It is not unfair discrimination to differentiate between groups within the designated groups, and to implement an affirmative action policy.

Magistrates Commission and Others v Lawrence (388/2020) [2021] ZASCA 165 (2 December 2021)

At the shortlisting stage of an appointment process, legislation does not permit a targeted group approach. A process which is inflexible and quota-driven and mechanistic excludes one group, amounts to not considering an application at all.

Minister of Finance v van Heerden 2004 (11) BCLR 1125 (CC)

Remedial measures are part of the equality protection envisaged by the Constitution. The test to determine discrimination is threefold.

National Education Health & Allied Workers Union & another v Office of the Premier: Province of the Eastern Cape & another (2011) 32 ILJ 1696 (LC)

A recruitment process is not unfair where an employer's affirmative action policy allows flexibility, is rational and goal directed, and authorises targeted recruitment to address gender or racial imbalances.

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

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.

Solidarity v Minister of Safety and Security and Others (J879/12) [2016] ZALCJHB 15 (26 January 2016)

Rather than relying on national census figures of the general population, an employer must compare the economically active portion of the population - both nationally and provincially - against the composition of the workforce.

Solidarity v Minister of Safety and Security and Others (J879/12) [2016] ZALCJHB 15 (26 January 2016)

Whether numerical targets in a EE plan can be construed as quotas will depend on the rigidity with which they are pursued, which will depend on the interpretation of the wording of the plan.

Solidarity & Others v Dept. of Correctional Services & Others (C 368/2012, C968/2012) [2013] ZALCCT 38 (18 October 2013)

The Employment Equity Act requires that both regional and national demographics be considered. A process that ignores regional demographics amounts to unfair discrimination.

Solidarity and Others v Department of Correctional Services and Others (CA23/13) [2015] ZALAC 6 (10 April 2015)

The failure to take account of regional demographics constitutes a sufficient legal obstacle against the plan being held to be in compliance with the EEA.

Solidarity and Others v Department of Correctional Services and Others (CCT 78/15) [2016] ZACC 18 (15 July 2016)

Black candidates and females are also subject to the Barnard principle (ie promotion may be refused if over-represented in that occupational level)

Solidarity and Others v Department of Correctional Services and Others (CCT 78/15) [2016] ZACC 18 (15 July 2016)

Targets in employment equity plans will not constitute quotas where there is provision for deviations from the targets of the plan.

Solidarity and Others v Department of Correctional Services and Others (CCT 78/15) [2016] ZACC 18 (15 July 2016)

Both regional and national demographics must be used for setting numerical goals or targets in employment equity plans.

Solidarity obo Barnard v SA Police Services (LC case no. JS455/07 dated 24/02/2010)

The EE Act and an employment equity plan must be applied fairly and recognise constitutional rights to equality and the need for operational efficiency. It is too rigid to apply numerical goals in an equity plan without considering all factors, including the circumstances of individuals affected.

Solidarity obo Barnard v SAPS (165/2013) [2013] ZASCA 177 (28 November 2013).

The mechanical application of targets falls foul of the EEA - a flexible and 'situation sensitive' approach is required. A rational explanation is required for not appointing the only suitable applicant from the non designated group.

Solidarity obo Christiaans and Eskom Holdings Ltd (2006) 27 ILJ 1291 (Arb)

It may not be discrimination nor an unfair labour practice for an employer to distinguish between different groups, if it is in terms of an equity plan.

South African Police Services v Solidarity obo Barnard (JA24/2010) [2012] ZALAC 31 (2 November 2012)

It is misconstrued to implement an employment equity plan as being subject to an individual's right to equality. It is not open to a court to 'second guess' a decision that not filling a post will or will not compromise service delivery.

South African Police Service v Solidarity obo Barnard [2014] ZACC 23

Once an affirmative action policy passes the test in s 9(2) of the Constitution, it is not unfair. This does not however oust the court's power to interrogate whether the measure is a legitimate restitution measure.

Thekiso v IBM South Africa (Pty) Ltd (Labour Court Case number: JS415/05; judgment delivered October 2006)
  1. The Employment Equity Act does not entitle employees to legally challenge that the employer has breached the Act`s affirmative action sections.

  2. Affirmative action is not a fair criteria for retrenchment.
University of South Africa v Reynhardt (2010) 31 ILJ 2368 (LAC)

Where an employer's affirmative action policy provides that when the equity target is reached, selection of a candidate must be on merit alone, it will be unfair discrimination to continue to appoint on racial grounds.

Van Dyk v Kouga Municipality (LC P476/09 10 April 2012).

The failure to appoint the best qualified candidate will not be unfair where short-listing is done on the basis that the appointee in a designated group has the capacity to acquire the minimum qualification within a reasonable time.

Willemse v Patelia NO & others (2007) 28 ILJ 428 (LC)

Affirmative action measures should not be applied in an arbitrary or unfair manner. Employers should consider factors such as skills and efficiency, and not just past disadvantage. The failure to consider disability may render the appointment unfair.