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[2012] ZALCCT 32
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Nombakuse v Department of Transport and Public Works: Western Cape Provincial Government (C 890/10) [2012] ZALCCT 32; (2013) 34 ILJ 671 (LC) (25 July 2012)
Reportable
Of interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C 890/10
In the matter between:
NTOMBIKAYISE
ETHEL NOMBAKUSE
Applicant
and
DEPARTMENT OF TRANSPORT AND PUBLIC WORKS:
WESTERN CAPE PROVINCIAL GOVERNMENT
Respondent
Heard
:
24-25 July 2012
Delivered
:
25 July 2012
Summary:
Discrimination – EEA ss 6, 10 and 11 –
absolution from the instance.
JUDGMENT
STEENKAMP J
Introduction
The applicant applied for a post as Executive Manager: Provincial
Public Works with the respondent. She was shortlisted and
interviewed. The selection committee (aka the interviewing panel)
recommended another candidate for appointment, placing the applicant
second in the list of preferred candidates. The then MEC, Ms KA
Mqulwana, intervened and recommended that the applicant be
appointed. She reconvened the interviewing panel. They agreed with
her recommendation and informed the provincial cabinet
1
of the applicant’s appointment. The cabinet noted and
concurred with the appointment.
Subsequently, the ANC-led provincial government was replaced by one
led by the Democratic Alliance. Under the leadership of the
DA MEC,
Mr Robin Carlisle, the applicant was informed that the post would no
longer be filled and would be re-advertised at a
later stage.
The applicant submits that the respondent discriminated against her
on one of the following grounds:
Political affiliation;
Race; or
Gender.
The applicant has grounded her claim in s 10 (read with ss 5, 6 and
9) of the Employment Equity Act
2
arising from the respondent’s non-implementation of her
appointment.
After the applicant had given evidence, she closed her case. The
respondent applied for absolution from the instance.
Background facts
The applicant is employed as a sub-council / district manager by the
City of Cape Town.
During November or December 2008, the applicant saw an advertisement
in a newspaper for two positions in the Department of Transport
and
Public Works in the Western Cape (i.e. the respondent), viz
Assistant Manager: Strategic Planning and Coordination; and
Executive Manager: Provincial Public Works. She applied for, was
shortlisted and interviewed for both positions. She was unsuccessful
in the application for the former position. That does not concern
the court in the present dispute. The relevant dispute concerns
the
latter position.
The interview took place in March 2009. The interviewing panel or
selection committee comprised the Housing MEC, Mr W Jacobs;
the head
of department; Mr T Manyati; and a representative of the province’s
secretariat, Mr P Williams. They unanimously
concluded that another
candidate, Mr TC Mguli, was the preferred candidate for the post,
having awarded him a score of 69,5%
on the basis of a standardised
set of criteria and questions. They awarded the applicant, Ms
Nombakuse, a score of 67, 67%.
Subsequently, the then MEC of the respondent, Ms KA Mqulwana –
who was the executive authority responsible for the appointment
–
reconvened the panel to inform them of her intervention and
recommendation for the applicant to fill the post of Executive
Manager: Provincial Public Works. It is common cause that Ms
Mqulwana and the applicant are from the same clan and that Mqulwana
recused herself from sitting on the interviewing panel.
The reasons given by the then MEC for her intervention were the
following:
The applicant’s performance in comparison to the recommended
candidate is very close or “almost the same”
in terms
of percentages;
In terms of the Employment Equity Plan of the Department the
priority for this post at this level is an African [
sic
]
female; and
The SMS competency assessment reflects a better performance of
“Advanced” in key strategic areas.
The reconvened interview panel agreed with the MEC’s
recommendation and the MEC informed the provincial cabinet of the
applicant’s appointment on 14 April 2009. The cabinet, in
turn, resolved that it “notes and concurs with” the
appointment on 15 April 2009. The appointment was subject to the
conclusion of an appointment contract and a performance agreement.
However, no such documentation was sent to the applicant and she was
not informed of her apparent appointment.
On 20 April 2009 the candidate who had initially been recommended by
the interviewing panel and who had received the highest
score, Mr
Mguli, lodged a grievance with the respondent. He alleged, inter
alia, that the panel’s recommendation had been
disregarded.
On 13 May 2009, having heard nothing further, the applicant wrote to
the respondent’s Acting Executive Manager: Corporate
Services,
copying the head of department, Mr Manyathi. She referred to her two
applications and stated:
“
I
humble [
sic
]
request to be furnished with the copy of the assessment report with
the intention to consider recommendations made for developmental
purposes and further utilise such constructive analysisin my present
working environment, as well as the racial demographics of
candidates
which I competed with in both positions.
Furthermore I was invited to be
interviewed for both positions and would appreciate it if the
department could enlighten me with
the outcome if any or progress in
writing preferable within a period of fourteen (14) days from the
date of this correspondence.”
The respondent eventually informed the applicant that her
application for the assistant executive manager post had been
unsuccessful;
but she received no written response regarding the
executive manager post. In telephone conversations between her and a
Mr Martin,
apparently an official in the respondent’s human
resources department, Martin informed her that the respondent “was
still in the process of finalising” the filling of the post.
It was only six months after the provincial cabinet had apparently
accepted her appointment, on 29 October 2009, that the applicant
received any formal response. The Executive Manager: Corporate
Services, Mr DW Jacobs, referred to her telephone conversations
and
said:
“
I can
now formally indicate that MEC Carlisle, in his capacity as Executing
Authority has decided on 26 October 2009 not to proceed
with the
filling of the post, and instructed that said post be readvertised
with immediate effect. You are naturally free and encouraged
to
submit another application once said post is advertised.”
The reference to “MEC Carlisle” is to the DA-appointed
MEC, Robin Carlisle. His appointment followed the provincial
elections of April 2009 when the DA wrested control of the province
from the ANC.
It appears from a memorandum signed by Carlisle; Martin; Jacobs; and
the then acting head of department, Mr J Fourie, that Carlisle
had
directed on 11 July 2009 already that the post not be filled “at
this stage”. The memorandum noted that, since
the previous MEC
had approved the applicant’s appointment, “several
concerns” had emerged; that a dispute concerning
the
appointment had been lodged (apparently referring to Mguli’s
grievance); and that the process had been identified as
“severely
flawed”. The respondent then decided in October 2009 that the
approval by the previous MEC regarding the
appointment process of a
number of posts, including that of Executive Manager: Provincial
Public Works, be revoked and the posts
be re-advertised. Carlisle
accepted the recommendation on 26 October 2009.
It must be noted that this memorandum, as well as the documents
emanating from the interview panel and the provincial cabinet,
only
came to the applicant’s attention during the discovery process
in these proceedings. When she asked for relevant documentation
at
the time, she was met with the following rather curt and unhelpful
response:
“
Unfortunately
we are not able to provide you with any additional information such
as the racial demographics of candidates as these
will have to be
acquired through utilising the Access to Information provisions. The
information officer of the Department, Ms
B Roberts can be contacted
at ...”
The applicant duly lodged a request for information in terms of the
Promotion of Access to Information Act
3
.
Sadly, neither Ms Roberts nor any other official in the Western Cape
provincial government appeared to share the principles
of promoting
access to information; as I have stated, the relevant information
was only provided in the course of litigation
some two years later.
On 10 May 2010 the applicant referred a dispute to the CCMA in terms
of s 10 of the EEA. It remained unresolved and se referred
a dispute
to this court. She avers that she was an applicant for employment in
terms of s 9 of the EEA; and that the respondent
discriminated
against her in terms of s 6 of the EEA on one or more of the
following grounds:
Political affiliation
: in that the applicant was appointed
by the ANC cabinet prior to the general election at the end of
April 2009 in which the
ANC lost power in the provincial parliament
in the Western Cape and was replaced by the DA, who have now caused
applicant per
MEC Carlisle of the DA not to take up her position
(ie the applicant avers that both the political affiliation of the
cabinet
that appointed her to the position of Executive Manager:
Provincial Public Works, and/or her personal (perceived) political
affiliation gave rise to discrimination against her);
Gender
: in that the applicant is a woman, in circumstances
where she submitted that the provincial government, particularly
post April
2009, discriminated against women in senior positions;
and
Race
: in that the applicant is a person from a designated
group and she submitted that the provincial government’s
record
of retaining and appointing people from designated groups,
particularly black women, is poor and indicates its bias against
the applicant.
The applicant closed her case at the end of her evidence. The
respondent applied for absolution from the instance.
Absolution from the instance: the applicable legal principles
The test for absolution
This court summarised the test for granting absolution from the
instance by reference to the applicable authorities in
Mouton v
Boy Burger (Edms) Bpk (1).
4
In brief, it is whether there is evidence on which a court, applying
its mind reasonably to the applicant’s evidence, could
or
might find for her.
5
This implies that the applicant has to make out a
prima facie
case.
6
In the case of an inference, the test at the end of the applicant’s
case is as follows: the court will refuse the application
for
absolution from the instance unless it is satisfied that no
reasonable court could draw the inference for which the applicant
contends. The court is not required to weigh up different possible
inferences but merely to determine whether one of the reasonable
inferences is in favour of the plaintiff.
7
In cases where discrimination is alleged, the question of onus plays
a significant role. In
Boy Burger
the claim was one of
automatically unfair dismissal in terms of s 187(1) of the LRA
8
;
in this case, the applicant claims unfair discrimination in terms of
ss 6 and 10 of the EEA.
Discrimination in terms of the EEA
Section 6(1) of the EEA provides that:
“
No
person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one or
more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language and birth.”
In the present case, the applicant avers that the respondent
directly discriminated against her on the grounds of race, gender
and/or political affiliation. She further avers that “political
affiliation” is analogous to the listed ground of
“political
opinion”. I would agree. To borrow from Northern Irish
jurisprudence, in
Gill v Northern Ireland Council for Ethnic
Minorities
9
the court commented:
“
It
seems to us that the type of political opinion envisaged by the fair
employment legislation is that which relates to one of the
opposing
ways of conducting the government of the state ... The object of the
legislation is to prevent discrimination against
a person which may
stem from the association of that person with a political party,
philosophy or ideology and which may predispose
the discriminator
against him.”
The burden of proof in claims of this nature is codified in s 11 of
the EEA:
“
Whenever
unfair discrimination is alleged in terms of this Act, the employer
against whom the allegation is made must establish
that it is fair.”
Is it enough for the applicant merely to allege discrimination, ie
has the onus shifted to the respondent to prove that the alleged
discrimination is fair? If so, it cannot succeed in its application
for absolution for the instance; because, in that case, the
court
can only make a finding once the respondent has discharged the onus.
Our courts have consistently held that, in order for the applicant
to shift the burden of proof to the defendant to prove that
the
alleged discrimination was fair, the applicant must at least
establish that there was discrimination on a listed (or analogous)
ground.
The legal position was perhaps best explained by Murphy AJ
10
in
IMATU & another v City of Cape Town
11
:
“
Moreover,
section 11 of the EEA provides that whenever unfair discrimination is
alleged, the employer against whom the allegation
is made must
establish that it is fair. This in effect creates a rebuttable
presumption that
once
discrimination is shown to exist by the applicant
it is assumed to be unfair and the employer must justify it (
Jooste
v Score Supermarket Trading (Pty) Ltd (Minister of Labour
Intervening)
1999 (2) SA 1
(CC) and
Hoffmann
v South African Airways
2000 (2) SA 628
(W)). Once discrimination has been established, the
employer will have to prove that the discrimination was fair or have
to justify
the discrimination as justifiable under section 6(2)(b)...
The approach to unfair
discrimination to be followed by our courts has been spelt out in
Harksen v Lane NO & others
[1997] ZACC 12
;
1998 (1) SA 300
(CC). Although
the
Harksen
decision concerned a claim under section 9 of the
Constitution (the equality clause), there is no reason why the same
or a similar
approach should not be followed under the EEA.
The
Harksen
approach
contains a specific methodology for determining discrimination cases.
The first enquiry is whether the provision differentiates
between
people or categories of people. If so, does the differentiation bear
a rational connection to a legitimate governmental
purpose? If it
does not, then there is a violation of the guarantee of equality.
Even if it does bear a rational connection, it
might nevertheless
amount to discrimination. The second leg of the enquiry asks whether
the differentiation amounts to unfair discrimination.
This requires a
two-staged analysis. Firstly, does the differentiation amount to
“discrimination”? If it is on a specified
ground, then
discrimination will have been established. If it is not on a
specified ground, then whether or not there was discrimination
would
depend upon whether, objectively, the ground was based on attributes
and characteristics which had the potential to impair
the fundamental
human dignity of persons as human beings or to affect them adversely
in a comparably serious manner. Secondly,
if the differentiation
amounted to “discrimination”, did it amount to “unfair
discrimination”? If it is
found to have been on a specified
ground, unfairness will be presumed under the Bill of Rights by
virtue of the provisions of section
9(5) of the Constitution, which
transfers the onus to prove unfairness to the complainant who alleges
discrimination on analogous
grounds. As I read section 11 of the EEA,
no similar transfer of onus arises under the EEA. In other words,
whether the ground
is specified or not the onus remains on the
respondent throughout to prove fairness
once discrimination is
shown
.”
He continued at para [88]:
“
I
doubt whether the shift of the burden applies in the context of the
EEA. The shift of the burden in constitutional cases is the
result of
the unambiguous language of section 9(5) of the Constitution which
provides expressly that discrimination on one or more
of the grounds
listed in section 9(3) of the Constitution is unfair unless it is
established that the discrimination is fair. No
similar provision
exists in the EEA. Nevertheless,
it
is still necessary to determine whether there has been
differentiation on a ground specified in section 6(1) of the EEA
.”
In other words, the applicant must still establish that she was
treated differently on the grounds of her political affiliation,
gender or race. Thus, in the earlier case of
Woolworths (Pty) Ltd
v Whitehead
12
,
the Labour Appeal Court held that the employee was “unable
to show that, but for her pregnancy, she would have been appointed
to the position despite the appellant having another candidate who
was better suited for the job than herself. The result of
this is
that, in my view, there is no causal connection between her not
being appointed and her pregnancy.”
As Christof Garbers
13
puts it:
“
[E]ven
if we move away from thought processes and focus on effect,
discrimination as a legal concept still suffers from teh challenges
of comparison, cause, causation and context. In legal terms –
there still has to be differentiation which is linked to a
ground of
discrimination.”
In the context of an equal pay claim, Van Niekerk J explained:
14
“
Writing
in
Essential
Employment Discrimination Law
,
Landman suggests that to succeed in an equal pay claim, the claimant
must establish that ‘the unequal pay is caused by the
employer
discriminating on impermissible grounds’ (at 145). This
suggests that a claimant in an equal pay claim must identify
a
comparator, and establish that the work done by the chosen comparator
is the same or similar work (this calls for a comparison
that is not
over-fastidious in the sense that differences that are infrequent or
unimportant are ignored) or where the claim is
for one of equal pay
for work for equal value, the claimant must establish that the jobs
of the comparator and claimant, while
different, are of equal value
having regard to the required degree of skill, physical and mental
effort, responsibility and other
relevant factors. Assuming that this
is done, the claimant is required to establish a link between the
differentiation (being the
difference in remuneration for the same
work or work of equal value) and a listed or analogous ground. If the
causal link is established,
section 11 of the EEA requires the
employer to show that the discrimination is not unfair, ie it is for
the employer to justify
the discrimination that exists.
This Court has repeatedly made
it clear that it is not sufficient for a claimant to point to a
differential in remuneration and
claim baldly that the difference may
be ascribed to race. In
Louw v Golden Arrow
15
,
supra
, Landman J stated:
‘
Discrimination
on a particular ‘ground’ means that the ground is the
reason for the disparate treatment complained of.
The mere existence
of disparate treatment of people of, for example, different races is
not discrimination on the ground of race
unless the difference in
race is the reason for the disparate treatment...’
This formulation places a
significant burden on an applicant in an equal pay claim. In
Ntai
& others v South African Breweries Ltd
(2001) 22
ILJ
214 (LC) the court acknowledged the difficulties facing a claimant in
these circumstances and expressed the view that a claimant
was
required only to establish a
prima facie
case of
discrimination, calling on the alleged perpetrator then to justify
its actions. But the court reaffirmed that a mere allegation
of
discrimination will not suffice to establish a
prima facie
case (at 218F, referring to
Transport and General Workers Union &
another v Bayete Security Holdings
(1999) 20
ILJ
1117
(LC)”.
Has the applicant shown that there is a
prima facie
case that
the respondent has discriminated against her on the grounds of
political affiliation, race or gender?
Evaluation / Analysis
In order to establish whether the applicant has crossed this hurdle
– and thus, whether the burden of proof remains on
the
respondent to show that the discrimination is fair in terms of s 11
of the EEA – I shall consider each of the grounds
that the
applicant alleges to rely on in turn.
Political affiliation
The applicant’s argument can be summarised as follows:
The ANC-aligned provincial cabinet, and specifically the then MEC,
recommended and accepted her appointment.
The DA MEC, Carlisle, reversed the decision.
Ergo
, the reason for her non-appointment was that she was
aligned to the ANC.
This line of argument begs the question. The applicant has not
provided any proof that the real reason for the respondent deciding
not to fill the post was because it wanted to prevent her from
filling the post because of her political opinion or affiliation.
Nor has she relied on the appointment of a comparator who was
appointed in her stead because of his or her affiliation with the
DA.
The applicant’s own evidence – which is the only
evidence before court at this stage – is that she does not
rely on any such comparator. Moreover, she conceded under
cross-examination that the appointments of at least four other
candidates
into different positions were reversed at the same time;
and that she had no idea of the political affiliation (or, indeed,
the
race or gender) of any of those candidates.
There is, quite simply, no evidence before this court that the
reason why the initial recommendation of the previous MEC –
and its acceptance by the ANC-led provincial cabinet – was
overturned, was because of the applicant’s political
affiliation. There is, not surprisingly, no such documented
evidence; but neither could the applicant provide any such evidence.
The high water mark of her case is that she was the assistant branch
secretary of the Gugulethu branch of the ANC. There is no
evidence
that the respondent was even aware of this fact; or, even if it was,
that it played any role in its decision to reverse
its earlier
approval of her appointment. Neither is there any evidence that the
post in question has been re-advertised or filled
– much less
by a DA-friendly incumbent.
The second leg to the applicant’s “political
affiliation” argument is that not her own political
affiliation,
but that of the previous cabinet and MEC – both
of whom were clearly ANC appointees – led to a discriminatory
decision
by the new, DA-appointed MEC to revoke the earlier
decision. This, she argued, is a reasonable inference. But the court
can only
find that a reasonable person could or might have drawn
such an inference if the facts before it sustain such an inference.
In
the case before me, it is common cause that the ANC-appointed MEC
recommended the applicant’s appointment and that the
DA-appointed MEC revoked it. But that on its own is not enough to
reasonably lead to the inference that it was politically motivated.
At least four other posts were also re-advertised. The decision to
do so emanated not only from the new MEC, but on the recommendation
of the departmental officials, ie the acting manager: “talent
management”; the senior manager: human capital management;
the
executive manager: corporate services; and the acting head of
department. There is no evidence before me of their political
affiliation. There is no evidence before this court that leads to
the inference that the reason to re-advertise all of these
positions
was politically motivated.
Gender
Much the same considerations apply to this line of attack. The
applicant is a woman. This does not axiomatically lead to an
inference that the reason why the respondent reversed the decision
to appoint her, is because she happens to be a woman. There
is
simply no causal link on the evidence before this court. Nor is
there any evidence that the respondent generally discriminated
against women in senior positions.
Race
The applicant is black. There is no evidence that this fact played
any role whatsoever in the respondent’s decision not
to fill
the post for which the previous MEC recommended her, or for which
the interview panel initially recommended the highest
scoring
candidate, Mr Mguli (who is also black). The applicant led no
evidence to back up her submission that the provincial
government’s
record of retaining and appointing people from designated groups,
particularly black women, is poor and indicates
its bias against the
applicant. She has not established that either race or gender was
the reason – or even a reason --
for the respondent’s
decision not to fill the post.
Conclusion
The applicant has not shown that the respondent has discriminated
against her on one or more of the grounds on which she relies.
Hence, the need for the respondent to show that the discrimination
was fair in terms of s 11 of the EEA does not arise. There
is no
evidence on which this court, applying its mind reasonably to the
applicant’s evidence, could or might find for her.
The application for absolution from the instance must therefore
succeed.
Costs
The applicant created the impression of an honest witness who had
the
bona fide
albeit misplaced perception that the respondent
had discriminated against her. Perhaps it is simply a reality in our
still divided
society that a person who is strongly aligned to one
political party immediately suspects that affiliation to play a role
when
a department of a provincial government whose political
leadership is dominated by a different party, takes a decision that
affects
her adversely – even though, on the evidence before
me, she has not been able to present facts that lead to a reasonable
inference that this was indeed the case. Although teh applicant has
been unsuccessful, I consider the fact that she is an individual
who
chose to assert her perceived rights under the EEA; and that the
respondent is a state entity. In law and fairness, I do
not consider
an adverse costs order to be appropriate.
Order
Absolution from the instance is granted. There is no order as to
costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
W D Field of Bernadt
Vukic & Potash.
RESPONDENT:
AC Oosthuizen SC (with
him SC O’Brien)
Instructed by the State
Attorney.
1
The
Western Cape provincial government refers to its executive council
as the “cabinet”. It also, at times, refers
to the
Member of the Executive Council (MEC) as a “minister”. I
shall refer to “the MEC”.
2
Act
55 of 1998 (the EEA).
3
Act
2 of 2000.
4
(2011)
32
ILJ
2703 (LC).
5
See
also
Claude Neon Lights (SA) Ltd v Daniel
1976(4) SA 403 (A)
at 409 G;
Oosthuizen v Standard General Versekerings Maatskappy
Bpk
1981 (1) SA 1032
(A) at 1035 H-1036 A;
Minister of Safety
and Security v Madisha and Others
(2009) 30
ILJ
591(LC);
Molele v SA Treno & another
(Labour Appeal Court
JA34/2010, unreported, 28 June 2012) para [13].
6
De
Klerk v ABSA Bank Ltd & ors
2003 (4) SA 315
(SCA) 323 A-G;
Gordon Lloyd Page & Associates v Rivera and ano
2001 (1)
SA 88 (SCA) 92 G-H.
7
Erasmus
Superior Court Practice
(service 39, 2012) B1-292 and
authorities there cited.
8
Labour
Relations Act 66 of 1995
.
9
2001
NIJB 299
at 311, quoted in Garbers, “The prohibition of
discrimination in employment” in Malherbe & Sloth-Nielsen
(eds),
Labour Law into the Future: Essays in Honour of D’Arcy
du Toit
(Juta 2012) p 30 fn 48.
10
As
he then was.
11
[2005]
11 BLLR 1084
(LC) paras [79] – [81] (my emphasis).
12
[2000]
6 BLLR 640
(LAC) para [24].
13
Garbers,
“The prohibition of discrimination in employment” in
Malherbe & Sloth-Nielsen (eds),
Labour Law into the Future:
Essays in Honour of D’Arcy du Toit
(Juta 2012) p 21.
(Footnotes omitted).
14
Mangena
& others v Fila South Africa (Pty) Ltd & others
[2009]
12 BLLR 1224
(LC) para [6] – [7].
15
(2000)
21
ILJ
188 (LC).