Eskom Holdings Soc Ltd (Peaking Power Station) v Solidarity obo Erasmus (CA13/2024) [2025] ZALAC 55 (5 November 2025)

Case Note

Eskom Holdings SOC Ltd v Solidarity obo AP Erasmus
CA 13/2024
Heard: 13 May 2025
Delivered: 05 November 2025

Reportability

This case is significant and reportable due to its implications for the application of affirmative action in South Africa's employment context. The judgment addresses the delicate balance between promoting equitable representation in the workplace and ensuring non-discrimination against individuals based on race. The court's ruling underlines that while companies may have affirmative action strategies in place, these cannot create absolute barriers against non-designated groups from being considered for positions for which they are qualified. The ruling ultimately serves as a precedent for the legal interpretation of employment policies and practices concerning equity, discrimination, and the role of ‘pipelining’ in recruitment processes.

Cases Cited

1. South African Police Services v Solidarity obo Barnard (CCT 01/14) [2014] ZACC 23; 2014 (6) SA 123 (CC); [2014] 11 BLLR 1025 (CC); 2014 (10) BCLR 1195 (CC); (2014) 35 ILJ 2981 (CC) (2 September 2014).

Legislation Cited

• Employment Equity Act 55 of 1998

Rules of Court Cited

• None cited explicitly in the judgment.

HEADNOTE

Summary

The Labour Appeal Court assessed an unfair discrimination claim brought against Eskom Holdings by Mr. Erasmus, who alleged he was not appointed to a senior managerial position based on his race. The labor court previously ruled in favor of Erasmus, asserting that Eskom’s practices created an absolute barrier to non-designated groups. However, the Appeal Court overturned this ruling, finding that the practice of ‘pipelining’ candidates from under-represented groups was a legitimate affirmative action measure and not discriminatory against non-designated groups.

Key Issues

The key legal issues involved whether Eskom's practices constituted unfair discrimination against non-designated groups (specifically white males) in the recruitment process. The extent to which affirmative action measures, such as pipelining, justifiably limited opportunities for non-designated groups was also central to the court's deliberations.

Held

The Labour Appeal Court held that Eskom did not unfairly discriminate against Mr. Erasmus by failing to appoint him. The court found that the company's adherence to its Employment Equity plan, including its pipelining practices, was valid and aimed at addressing prior unfair discrimination against historically disadvantaged groups. The appeal was upheld, and the order of the Labour Court was set aside.

THE FACTS

Mr. Erasmus had been employed by Eskom since 1988 in a senior capacity and responded to an internal advertisement for a managerial position. Despite being shortlisted, he was not appointed. The recruitment process revealed contradictions between the intention to appoint under-represented groups and the existence of a white male candidate who met the qualifications. Eskom's Employment Equity plan prioritized candidates from designated groups, leading to arguments that this practice created an absolute barrier against non-designated groups, notably white males.

After Mr. Erasmus lodged a grievance and the matter was escalated to the Labour Court, it found that Eskom's shortlisting policy was discriminatory. The issue was taken to the Labour Appeal Court, where the justification of pipelining as a method to promote equitable representation was brought into question.

THE ISSUES

The central legal question was whether Eskom's practice of prioritizing candidates from designated groups based on its Employment Equity plan constituted unfair discrimination against Mr. Erasmus. The counter-argument focused on whether the existence of this policy effectively prohibited qualified candidates from non-designated groups from consideration for the position in question.

ANALYSIS

The court's reasoning emphasized the importance of balancing affirmative action initiatives with fair employment practices. It was illuminated that pipelining, while potentially limiting for white males, was intended to counteract historical inequalities and foster a diverse managerial base. The court noted that the recruitment policy did not establish a fixed barrier against non-designated groups but rather sought to include them as part of a broader initiative to address inequities.

The Labour Appeal Court critically assessed the Labour Court’s interpretation, arguing that the mere existence of a preference for under-represented candidates does not equal unfair discrimination if such measures serve to advance a legitimate affirmative action goal. The evidence presented showed that Mr. Erasmus was aware of the demographic imbalances within the organization, which supported the rationale for the pipelining strategy.

REMEDY

The Labour Appeal Court upheld the appeal, thereby overturning the Labour Court’s ruling and dismissing Mr. Erasmus's application on the grounds of unfair discrimination. The court did not impose any costs against either party, reflecting an understanding of the contentious nature of the issues involved.

LEGAL PRINCIPLES

The judgment established critical legal principles surrounding the application of the Employment Equity Act, particularly the necessity for affirmative action measures to be inclusive rather than exclusionary. It clarified that while designated groups may be prioritized, policies must not operate as absolute barriers to the consideration of all qualified candidates, irrespective of race. Legal adherence to the principles of fairness, equality, and the ongoing need to address historical injustices were affirmed within the context of employment practices.