plan would again manifestly work to their disadvantage and constitute a clear infringement on

dignity to those who were the very target of Apartheid's racist policies.

[59] In summary, the respondents failed to take account of the particular regional demographics of
the Western Cape which was a mandatory requirement at the time that the plan was conceived. The
failure to do so could result in a large-scale reduction in the workforce of members of the designated
group, who themselves had suffered egregious discrimination as a result of Apartheid. Even if the
word 'may' is employed in this enquiry, it is our view that, given South African history, the failure to
take account of the impact of regional demographics on the nature and purpose of the plan
adversely reduces the contribution of restitution towards substantive equality and hence the
attempt to achieve the effect, the goal of developing a non-racial and non-sexist society. This
complete failure to examine the region in which the plan is conceived constitutes a sufficient legal
obstacle against the plan being held to be in compliance with the EEA.

On remedy - [71] … given the paucity of evidence and the time that has lapsed between the central
facts that gave rise to this dispute and this appeal … this court cannot grant a remedy of promotion.
For similar reasons, compensation is inappropriate. The issue of damages was neither canvassed nor
pleaded. In light of the lack of certainty as to what outcome would have resulted had regional
demographics been taken into account, it would be inappropriate to award damages.

[72] … Manifestly, recourse to the particular demography of a region should not result in the
implementation of a quota. The animating idea behind these considerations should not be to freeze
a pattern of regional demography, which is invariably a product of the vicissitudes of generations of
racist rule. Hence, in the construction of a non-racial and non-sexist nation, the relationship between
regional and national demographics requires nuance and flexibility. It is best left to the respondents
to develop an appropriate plan as opposed to a judicial attempt at legislation.

IS THERE A RIGHT TO AFFIRMATIVE ACTION?

The following cases deal with the question whether the affirmative action obligations in chapter III
give rise to an individual right/ a cause of action to an appointment/promotion/retention.

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

Waglay J

The employee alleged unfair discrimination (s 6 EEA) in that he was not shortlisted for a number of
positions advertised by the City of Cape Town – alleging because of his race, his political beliefs and
his lack of experience. The City of Cape Town raised an exception arguing that the statement of
claim is vague and embarrassing and lacks averments that are necessary to sustain the action.

‘[33] If one were to have regard only to section 6 of the Act then one might be drawn to the
conclusion that affirmative action is no more than a defence to a claim of unfair discrimination.
Affirmative action is indeed a defence to be deployed by an employer against claims that it has
discriminated unfairly against an employee. However, from the reading of the Act it appears that
affirmative action is more than just a 'defence' in the hands of an employer and should not be
confined to so limited a role in the elimination of unfair discrimination in the workplace. The
definition of affirmative action in section 15 indicates a role for affirmative action that goes beyond
the passivity of its status as a defence. Affirmative action measures include measures to "eliminate
employment barriers", to "further diversity" in the workplace and to ensure "equitable
representation". In these respects affirmative action involves more than just a defensive posture. It

1
includes pro-activeness and self-activity on the part of the employer. The Act obliges an employer to
take measures to eliminate unfair discrimination in the workplace.’

After exploring the relevant provisions in chapter III:

[41]… sections 20(3)–(5) are an integral part of steps to be taken by an employer to promote equal
opportunity in the workplace by eliminating unfair discrimination. ...

[43] … question … whether a failure by a designated employer to prepare and/or implement an

employment equity plan can in law constitute unfair discrimination in terms of section 6(1) or 6(2) of
the Act. If the grounds relied on and alleged by an applicant can, independently of the issue of the
employment equity plan, be categorised as 'unfair discrimination' as contemplated in section 6 and
sections 20(3)–(5) then the claim may properly be pursued in law. The allegations in this matter do
indeed fall within the category of unfair discrimination contemplated in section 6 and sections
20(3)–(5). To this extent, it is not at this stage for this Court to determine those aspects of the notice
of exception not properly raised on a fair interpretation of the applicant's statement of claim. The
issue might raise itself in the further prosecution and defence of the matter by the applicant and the
respondent. If so, the Court will deal with it at the appropriate time.

[44] One of the ways in which this issue has been posed by the respondent is that affirmative action
may only serve as a defence. In part this is correct. The real answer however lies in the
determination of who is making the claim of affirmative action. It may found a cause of action in the
hands of one and defence in the hands of another. If one were to have regard only to section 6 of
the Act then one might be drawn to the conclusion that affirmative action is no more than a defence
to a claim of unfair discrimination. Affirmative action is indeed a defence to be deployed by an
employer against claims that it has discriminated unfairly against an employee. In this sense, it
serves as a shield. However, having regard to the fact that the Act requires an employer to take
measures to eliminate discrimination in the workplace it also serves as a sword.

[45] Affirmative action has its roots embedded firmly in the Constitution of the Republic of South
Africa …. Section 9(2) of the Constitution provides that "equality includes the full and equal
enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other
measures designed to protect or advance persons or categories of persons, disadvantaged by unfair
discrimination may be taken." … Our constitution embraces and promotes the more thoroughgoing
and challenging concept of substantive equality. In the absence of the full development of the
concept of substantive equality our society will continue to be characterised by deep-rooted
inequality and injustice. (… National Coalition for Gay & Lesbian Equality & Another v Minister of
Justice & others 1999 (1) SA 6 (CC) at 38H–39D and Stofman v Minister for Safety and Security and
others (2002) ILJ 1020 at 1029-1030. See also President of the Republic of SA & another v Hugo 1997
(4) SA 1 (CC)).

[46] The protection and advancement of persons or categories of persons disadvantaged by unfair
discrimination, by legislative and other measures is recognised by the Constitution as part of the
right to equality. It is not fashioned as an exception to the right to equality. … It is part of the fabric
and woven into the texture of the fundamental right to equality in section 9 of the Constitution. In
this sense, 'affirmative action' is more than just a defence or shield. If at all it be 'shield', it would be
inconceivable that it is available only to those in our society who have power, namely employers. If
this were the case then employees would, in so far as their full and equal enjoyment of all rights and
freedoms is concerned, be at the mercy of an employer with no or no real remedy should the
employer fail to promote substantive equality.

2
[47] ….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. Similarly, if an
employer discriminates against an employee in the non-designated group by preferring an employee
from the designated group who is not "suitably qualified" as contemplated in sections 20(3) to 20(5)
of the Act, then the employer has violated the right of such an employee not to be discriminated
against unfairly. In either case, the issue is whether the employer has violated an employee's right
not to be discriminated against. To this extent, affirmative action can found a basis for a cause of
action.

[48] Whether or not employees have a right to affirmative action arising out of an employment
equity plan is another question altogether. A positive answer to that question does not inarguably
arise from the language of sections 20(1) and 20(2) of the Act. One would have to consider the
provisions of sections 20(1) and 20(2) of the Act, together with the Act as a whole and the
Constitution. If however an employer adopts an employment equity plan that regulates
appointments and promotions, then the employees may have a legitimate expectation that the
respondent will act in accordance with the plan.

[49] On an analysis of the Constitution and the Act I am satisfied that the Act and specifically
sections 20(3) to (5) read with Chapter II do indeed provide for a right to affirmative action. The
exact scope or boundaries of such a right is a matter that will have to be developed out of the facts
of each case.

… The exception raised by the respondent is dismissed with costs.

Dudley v City of Cape Town (2008) 29 ILJ 2685 (LAC)

Zondo JP:

[1] An appeal from a judgment of the Labour Court in which … Tip AJ upheld four exceptions …
taken by the first respondent … to the appellant's [applicant / employee] statement of claim …
[facts: the applicant was appointed to the post of interim manager: health in February 2001 … There
was only one woman on this team, being the applicant; she was also one of its four black members.
She was responsible inter alia for the overall management and strategic direction of the city's
medical services as well as budget and business planning processes. When the position of director:
city health was advertised in November 2001 she applied and was not successful.

She requested relevant information and was advised – that while she was appointable, ‘the city
has targeted safety and health as critical deliverables; consequently the requirement for
the behavioural competencies in the health portfolio demanded a level above
competence’ [ie that the [white male] appointed was more competent.] She was also
advised that - Processes and procedures used during these appointments were in
accordance with the adopted recruitment and selection policy. …. it includes a number of
provisions relating to affirmative action and employment equity. The City of Cape Town is an
employment equity employer and, as such, preference will be given to suitably qualified
candidates who are members of designated groups as defined in s 1 of the Employment
Equity Act 1998 as consisting of black people, women and people with disabilities.

Ultimately, the question for decision is whether Dudley could found a cause of action
based on (1) affirmative action; (2) constitutional obligations; and (3) unfair labour
practice.

3
Zondo scrutinises the employer’s obligations in terms of Chapter III of the EEA and differentiates
between Chapter II and III and the dispute resolution procedures as follows:

[42] … chapter III of the Act deals with affirmative action. … chapter II of the EEA …
deals with the prohibition of unfair discrimination and contains a dispute-resolution
procedure. That dispute-resolution procedure is available to 'any party to a dispute
concerning' that chapter (s 10(2)). That dispute-resolution procedure culminates in the
adjudication of a dispute by the Labour Court if conciliation fails to achieve a resolution.
What is very striking about chapter III is the fact that no dispute-resolution procedure is
provided for in that chapter. It is difficult to think that the drafters of the Act
remembered to include a dispute-resolution procedure in chapter II for disputes
concerning that chapter but suddenly forgot to include a dispute-resolution procedure in
chapter III, when they came to the latter chapter. The more plausible explanation for
their omission to include such a procedure in chapter III is that they did not forget to
include it but deliberately omitted to do so for some reason.

[43] Chapter IV deals with the Commission for Employment Equity. No dispute-
resolution procedure is provided for therein. Chapter V deals with monitoring,
enforcement and legal proceedings. Such obligations as are placed upon a designated
employer by some or other provisions of chapter III can all be enforced by the use of the
enforcement procedure provided for in chapter V… I am satisfied that all such obligations
as are placed upon a designated employer under chapter III can be enforced by using
the enforcement procedure provided for in chapter V. It seems to me that this would
explain why the drafters did not include a dispute-resolution procedure in chapter III
notwithstanding the fact that they included one in chapter II. They did not do so because
the idea was that the enforcement procedure provided for in chapter V should be used
instead or at least should be exhausted first before there could be a resort to the
institution of court proceedings.

[46] … The fact of the matter is that they intended that any interested party who is
aggrieved by a designated employer's failure to comply with any of its obligations under
chapter III would take steps to have the enforcement procedure provided for in chapter
V invoked and they did not intend that such an interested party could simply ignore that
procedure and institute court proceedings. That is the policy choice that was made by
the legislature. It may be good or it may be bad but the legislature was entitled to make
that policy choice.

[49] Generally speaking, the provisions of s 50(1) of the EEA deal with powers of the
Labour Court in those matters in which it has jurisdiction and there is a cause of action.
…. The only possible exception to this general thread in s 50(1) is s 50(1)(h), but even
that may arguably be said to relate to powers and not causes of action and jurisdiction.
There is in this case no reliance upon s 50(1)(g) of the EEA. In the circumstances I
conclude that s 50(1)(f) is of no assistance to the appellant. In the light of the above I
conclude that it is not competent to institute proceedings in the Labour Court in respect
of an alleged breach of any obligation under chapter III of the EEA, prior to the
exhaustion of the enforcement procedure provided for in chapter V of the EEA.

[50] The next question for consideration is whether a designated employer's breach of
its obligation either under its own selection or affirmative action policy or under the
affirmative action provisions of chapter III of the EEA in filling a vacant post, for example
in failing to prefer a black woman candidate to a white male candidate constitutes unfair
discrimination. In this case part of the appellant's claim is that the first respondent had
an obligation in terms of its recruitment and selection policy and in terms of chapter III
of the EEA to prefer her to the second respondent for appointment because she was a

4
woman and was black. The first respondent's failure, contends the appellant, to prefer
her for appointment constituted unfair discrimination.

[51] When the appellant complains that the first respondent failed to give her preference
in terms of its selection policy, the appellant is in effect saying that the first respondent
failed or refused to put her ahead of white male candidates in its consideration of who
should be appointed to the position. The advantage and benefits which whites gave
themselves under apartheid and the disadvantage and hardships to which blacks were
subjected under that system can at some level be compared to a race which had black
and white participants. Imagine that in such a race the black athletes would be shown
one starting line and they would all line up at that starting line. White athletes would be
shown a different starting line - one that is just for them. Their starting line would be a
number of metres ahead of the starting line set aside for blacks. The athletes - both
black and white - would be running different distances to the same finishing line. The
whites would run a distance that would be some metres shorter than the distance that
the black athletes would run because the white athletes' starting line would have been
some metres closer to the finishing line than the starting line for blacks. From this
example it is obvious that those in charge of the race - and therefore those in charge of
the country under apartheid did not want black athletes to win and wanted whites to
win. Obviously, with the white athletes enjoying such an advantage, most of them would
reach the finishing line ahead of either all or most of the black athletes. Of course, there
would be cases where, despite having started the race some distance behind the white
athletes, some black athletes would not only completely close the gap between them and
the fastest running of the white athletes but they would outrun all the white athletes.

[52] The purpose of affirmative action is inter alia to achieve employment equity in the
workplace. I need to go back to the example given above in respect of a running race
and use it to explain what the appellant in effect means when she complains that the
first respondent's conduct in failing to give her preference constitutes unfair
discrimination. What the appellant means in effect is that, like in the running race
example given above, the first respondent should have placed her some distance ahead
of the other candidate's starting line. What happens when no preference is given? In
such a case the athletes may well all be placed on the same starting line so that they are
given an equal distance to run. If that is done, the athlete who believes that he should
have been given a separate and special starting line ahead of others is not being unfairly
discriminated against by being treated in the same way as the others. In fact such
athlete is not even being discriminated against in the first place, not to speak of being
discriminated against unfairly. The fact that the employer's failure to give an employee
preference in the filling of a position does not constitute unfair discrimination does not
mean that such employee would have no cause of action at all. For example, if such
employee's employer was obliged to give him or her preference in terms of a collective
agreement, the failure to give him or her preference would constitute a breach of such
agreement even though it would not constitute unfair discrimination. Accordingly, insofar
as the appellant's statement of claim includes a claim to the effect that the first
respondent failed to give her preference in the filling of the post in question as required
either by the statutory provisions relating to affirmative action or as required by its
recruitment and selection policy and that such failure to give her preference constituted
unfair discrimination based on race or gender, the first respondent's exception was
correctly upheld by the Labour Court.

[53] I am aware that the judgment of the acting judge in the court below was contrary
to the earlier judgment given by the Labour Court in Harmse v City of Cape Town (2003)
24 ILJ 1130 (LC); [2003] 6 BLLR 557 (LC) with which he said he disagreed. To the

5
extent that the Harmse judgment is in conflict with this judgment, it was, of course,
wrongly decided. Subsequent to the judgment of the Labour Court C in this matter, the
judgments in PSA on behalf of Karriem v SAPS & another(2007) 28 ILJ 158 (LC); Cupido
v GlaxoSmithKline SA (Pty) Ltd(2005) 26 ILJ 868 (LC) and Thekiso v IBM SA (Pty)
Ltd(2007) 28 ILJ 177 (LC); [2007] 3 BLLR 253 (LC) were given and they all followed Tip
AJ's judgment now on appeal.

[54] In the light of all of the above I conclude that the conduct of a designated employer
in failure to give a member of the designated group who has applied for employment
preference to those candidates who are not members of the designated group in the
filling of a post does not on its own constitute unfair discrimination …

[56] I have not decided the question whether, if and when the appellant has exhausted
the enforcement procedure provided for in chapter V, she can at that stage institute
court proceedings. We have refrained from deciding that point simply because it fell
outside the terms of the exception taken by the appellant.

[57] In the light of all the above it seems to me that the appellant's appeal falls to be
dismissed. …

Thekiso v IBM South Africa (Pty) (Ltd) (2007) 28 ILJ 177 (LC)

Freund AJ

(This extract from the headnote is adequate):

‘The applicant was employed in the respondent company's asset management division.
This division had only three clients, which were serviced by a team of six people. When
one of the clients did not renew its contract with the company at the end of February
2005, it no longer had work for all the members of the division. This rendered the posts
in the division redundant. The company determined that only two positions existed in the
division. One was a highly technical one which only one employee was qualified to
perform, and he thus retained his job. The other position was newly created - an asset
administrator with greater technical skills than those that had been previously required.
The company notified the five remaining asset managers by letter of possible
retrenchments and set out the information required by s 189(3) of the LRA 1995 in the
letter.

… [M]eetings in relation to selection criteria, severance packages and alternative

positions were later held. It also invited the employees to assess their own abilities
against the criteria set for the newly created position. Taking into account the
employees' self-assessments together with his own assessment, the service operations
manager selected the person best qualified for the job, a white male, Mr V. The applicant
employee, a black female, was retrenched. In proceedings before the Labour Court she
contended that the company's failure to consider certain requirements imposed by the
EEA rendered her dismissal unfair.

(… Regarding the selection criteria, the court found that the employee had acquiesced in
the company's proposed selection criteria. As to the service operations manager's
reliance on the redundant employees' self-assessments, the court was satisfied that the
manager had applied his own judgment as well as the self-assessments to determine
who was best suited for the newly created post. Moreover, fairness did not require that
every applicant for the post had to be confronted with the relative merits and demerits

6
of every other applicant's before a decision could be made. As long as the interviewing
process was fairly conducted, the company was entitled to apply its own judgment as to
which applicant was best qualified for the new post.)

On the affirmative action issue the employee submitted that, if the company had been
intent on retrenching employees in the asset management division, s 15(2)(d) (ii) of the
EEA obliged it to retain the employee, a black woman, in preference to any white male,
provided she was 'suitably qualified' for the available position. In this regard the
employee relied on s 20(3) of the EEA which provided that a person was suitably
qualified for a job, inter alia, if he or she had 'the capacity to acquire, within a
reasonable time, the ability to do the job'.

The court found that the employee's argument on the meaning and effect of s 15(2)(d)
(ii) of the EEA was incompatible with the judgment in Dudley v City of Cape Town (2004)
25 ILJ 305 (LC), in which it was held that the provisions of chapter III of the EEA did not
bring about an individual right to affirmative action and that there was no right of direct
access to the Labour Court in respect of a claim under the chapter. There was no basis
on which the court could conclude that the Dudley decision was erroneous, as contended
by the employee, and the court therefore regarded itself as bound by the decision.

In the court's view it was implicit in Dudley that a retrenched employee could not pursue
a complaint before the Labour Court in terms of chapter III of the EEA alleging that her
retrenchment constituted a breach by her employer of its affirmative action obligations.
Not only did the EEA not provide any mechanism for pursuing such a complaint, but, on
a proper construction thereof, there was no legal obligation on an employer when taking
any particular appointment or dismissal decision to give preference to suitably qualified
employees from a designated group. Section 15(2)(d)(ii) did not impose an obligation on
an employer contemplating retrenchments to retain black employees in preference to
white employees it believed better met its need. Whilst chapter III of the EEA (including
s 15(2)(d) (ii)) imposed legal obligations, those obligations were 'programmatic and
systematic'. They required consultation on, and the implementation of an employment
equity plan but they did not confer legal rights to preferential treatment on individuals
in respect of particular appointment or dismissal decisions.

The court did not see how an employee who had no right to rely directly on the EEA
could have a right to rely thereon indirectly by means of an allegation in an unfair
dismissal case brought in terms of the LRA that the employer had failed to consider its
obligations under the EEA, as contended for by the employee. Subsections (2) and (3) of
s 189 of the LRA did not impliedly impose an obligation on an employer contemplating a
possible retrenchment to consider its obligations under the EEA.

The court accordingly found the employee's retrenchment

7 to be both substantively and
procedurally fair. The application was dismissed with costs.

3. Enforcement of employer obligations to comply with Chapter III (affirmative action)

The following cases illustrate the powers (and limits) of the Department of Labour to monitor and
enforce designated employers’ obligations to comply with the mandatory provisions in Chapter III of
the EEA.

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

Sangoni AJ: