Not Reportable
THE LABOUR COURT OF SOUTH AFRI
HELD AT CAPE TOWN
Case no: C302 /2022
In the matter between:
MAMONYANE SEFAI MATSASENG Applicant
And
DEPARTMENT OF SOCIAL DEVELOPMENT First Respondent
Second Respondent
Date of Hearing: 26 June 2024
Date of Judgment: 12 August 2025
JUDGMENT
CASSELLS AJ
2
Introduction
[1] In this matter the Applicant seeks an order declaring the decision taken by the
First Respondent to not interview her after she w as invited to an interview for the
post Commun ity Development Manager: Sustainable Livelihoods in the Western
Cape Government as irrational, resulting in the recruitment and se.ection process
being defective and that the First Respondent be ordered to ret:al all applicants
previously invited to the interview to a fresh interview, including h F.
[2] The App licant initiated her dispute by means of mo tion proceedings in terms of
rule 7 of the (old) rules of this Court. Ordinarily, such isputes are initiated by
means of action proceedings. Ho w ever, as the irst Respondent did not object to
the process adopted by the Applicant, tbis matter is adjudicated on the basis of
the papers filed by the parties.
[3] The App licant's founding affi avit co tains only a reference to section 11 (2) of the
Employment Eq uity Act, 1998 a~ mended ("the EEA ") as the basis for her
application that First ResP.onde t's conduct tow ards her w as irrational. In a
supplementary affidavit thaFthe Applicant filed after the First Responden t had filed
its answ erin records that the relief sought is in terms of section 6
(1) of the E 1th section 11 (2) thereof, as she w as unfairly
discriminated against on an arbitrary ground. The Applicant did not seek leave to
file the supplementary affidavit, despite its filing not being contemplated in terms
of rule 7 of this Court's (old) rules. How ever, as the filing of the affidavit w as not
opposed by the First Respondent and as the content of the affidavit merely
records the legislative framew ork on w hich the Applicant's claim is based, it is
accepted.
The condonation applications
[4] The App licant's founding affidavit addresses condonation for the late referral of
her dispute to this Court, w hich is opposed by the First Responden t.
[5] The App licant's dispute w as conciliated on 7 October 20221 and her present
application w as filed on 09 November 2022. There is therefore no need for her to
apply for condonation.
[6] The First Respondent seeks condonation for the late filing of its nsw ering
affidavit, w hich the Applicant has not opposed. The explanaron tenGlered for the
delay, name ly internal administrative issues in briefing counsel, is accepted as
reasonable and the late filing of the answ ering affidavit is con
Factual background
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[7] The factual background to this matter is that in lluly 2021 the App licant applied to
the First Respondent for an advertised post w ith job title Commun ity Development
Manager : Sustainable Livelihoods and w as informed on 24 January 2022 that she
w as shortlisted. The selection rocess required that she undergo a competency
assessment/ proficiei1cy test and attend an interview. The Applicant w as also
informed that she w ould be sent a practical assessment on 1 February 2022,
w hich she w s required to comp lete in thirty minutes and thereafter return it w ithin
five minutes ot completion to Faiza Patton ("Patton"), the First Responden t's
huma□ resources official designated to administer the shortlisting and interview
[8] The App licant w as sent the practical assessment at 09h00 on 1 February 2022
and she w as required to complete and submit it to Patton by 09h30. The App licant
only subm itted the practical assessment at 1 0h46 that morning. Patton advised
the Applicant to submit the assessment, although its subm ission w as late.
[9] The App licant w as scheduled to be interview ed online on 3 February 2022 at
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12h40. On that day, Patton advised the Applicant that her interview w as delayed
and thereafter informed her by email that the selection committee had decided not
to interview her as she had subm itted her practical assessmen t late and the
practical assessment and the interview is a comb ined process. The Applicant
responded thereto on the same date by addressing an ema il to the chairperson of
the selection committee complaining that she w as treated unfairly as she had
experienced a challenge in submitting the practical assessme nt on ti e, had
advised the First Respondent of her challenges and w as then allow ed to subm it
her assessme nt. The Applicant questioned w hy she w as not told at that time that
she w as disqualified and w hy, on the day of the interview , she received a
message that it w as delayed, as she had continued to spend money and
resources in preparing for the interview . Her er ail further recorded that she w ould
have accepted if she had been told immediate on 1 F.ebruary 2022 that she w as
disqualified but she had been allow ed to subm it her practical assessment, and it
w as only w hilst w aiting to be connecte for the online interview two days later that
she w as advised that she w ould not be interview ed. She found this unfair and
lodged an objection w ith the chairperson of the selection comm ittee and the First
Respo ndent's Labour Re lations Un it and requested feedback. She reiterated that
her complaint w as that the Firs Respo ndent should not have given her the
Id be interview ed by advising her that the interview w as
delayed.
[1 O] The cbairpersoa of the selection comm ittee did not specifically respond to the
Applieant l§ut rather addressed an ema il to Patton on 3 February 2022 explaining
the reasons for not interview ing the Applicant, w hich Patton in turn forwarded to
the App licant. The explanation w as that the selection comm ittee could not give the
App licant more time for the practical assessmen t than they gave other candidates
App licant more time for the practical assessmen t than they gave other candidates
as it w ould not be fair and that the Applicant did not report her technical difficulties
until Patton had called her.
[11] In its answ ering affidavit, the First Respondent's explanation, w hich w as not
contested in reply, w as that the selection committee met on 2 February 2022 to
consider the portfolios of each candidate w hen they w ere preparing for the
inteNiew s in terms of the allocated times set out in the agenda. The Applicant
w as the last candidate on the schedule, and her oral inteNiew w as scheduled to
take place on 3 February 2022 at 12h40. Patton w as instructed to confirm the
allocated time slot w ith all candidates, including the Applicant. The issue of
non-compliance w ith the prescribed time periods for the completion of the
practical assessment w as only considered and decided upon befere the
commencement of the individual inteNiew s. At the time allocated for the
inteNiew of the Applicant, the selection commi ttee considere her failure to
comply w ith the prescribed timeframe for the R actical assessmen t and decided
5
not to proceed w ith the oral inteNiew a disqualified, as in terms of
the proviso contained in the advertisement, the can<:1idates needed to submit the
practical assessment w ithin the required timefliame. This proviso w as also
recorded in two separate em ils sent to the Applicant on 24 January 2022 and on
1 February 2022 respectively.
[12] The issue w hether the pplicamt reported her technical difficulties to Patton or
w hether Patton triad called he to find out w hether she had subm itted her practical
assessment is tie only relevant ma terial issue in dispute. Applicant contends that
she cont cted Ra tion at 09h30 that morning to advise her that she w as
exf2eriencing tecnnical problems in sending the assessmen t and enquired w hether
she coul still send her portfolio after the problem w as rectified. The First
Respondent denies the Applicant's version and records that w hen Patton w as
collating the subm itted practical exercises from the short listed candidates, she
realized that the Applicant's application w as not amongst them, and she then
realized that the Applicant's application w as not amongst them, and she then
contacted the Applicant to establish w hether she had returned the completed
assessment. The Applicant at that time informed Patton that she w as
experiencing technical difficulties and that she w ould subm it her assessment once
those difficulties w ere resolved. Although in reply the Applicant denies the First
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Respondent's version, she does not materially contest its version on the facts.
[13] The Appellate Division (as it then was) in Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltcfl sets out the principles applicable to the evaluation of
factual disputes arising from evidence presented by affidavit, name ly that the relief
sought should only be granted if the facts stated by the respondent together w ith
the adm itted facts in the applicant's affidavits justify such an order. In the present
matter, the First Respondent's version is that Patton contacte the Applicant after
realizing that she had not received the Applicant's practical assessment and this
version is accordingly accepted.
Evaluation
[14] The App licant contends that the First Respondent's refusal to interview her was
irrational and amounted to unfair discri nan arbitrary ground.
[15] Section 11 (2) (b) of the EEA require~t-iat in claiming unfair discrimination on an
arbitrary ground, the complainanfmust prove, on a balance of probabilities, that
rational, amounts to discrimination and that the
discrimination
[16] In respect quirement, the Constitutional Court decision in Minister of
Water Affairs a nitation v SembCorp Siza Water3, granted in the context of a
review application, confirms that the rationality standard is not about the cogency
of reasons furnished for a particular decision but "whether there was a rational
connection between the exercise of power in relation to both process and the
decision itself and the purpose sought to be achieved through the exercise of that
power' and that "(i)f there is such connection, the review challenge based on this
ground must fail, regardless of the cogency of the reasons furnished for the
decision in question. This is because rationality is the lowest threshold required
for the exercise of public power." The judgment further records that a decision
taken or a procedure followed that is rationally connected with the purpose for
wh ich the decision making power is granted will not constitute discrimination.
[17] The further requirements of section 11 (2) (a) of the EE A that if unfair
discrimination on an arbitrary ground is alleged, the conduct complained of must
be proven on a balance of probabilities to amount to discrimination and the
discrimination must be unfair, are subject to the legal construction set out by the
Labour Appeal Court in Naidoo & others v Parliament of the Republic of South
Africa4, wh ich rejected the notion that the phrase "any other arbitrafY, ground"
contained in section 6 (1) of the EEA is unconnected to the ~ tee grounds of
discrimination set out therein, or a ground analogous thereto, as:
"It would make section 6 (1) a font of a remedy, for grievances with virtually no
limits. But the EEA is not intended to be a cat~ /1 or a panacea. Indeed, the
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EEA is the instrument of s9 of the Co nd therefore its mission is to give
teeth to that constitutional guarantee within the scope of the terms expressed in
that section. Section 9 is not an al/.;e compassing injunction, rather its purpose is
to give recognition to the values of our humanity and provide a remedy for
aggression against us on the [!}rounds of our intimate attributes, whether inherent
or adopted. In tion 9 has a specific and concrete focus,
intelligible within the context of the historical experience of South Africa's legacy
of oppressio ::..The writers, Garbers and Le Roux rightly caution against being
seduced by the idea that anti-discrimination law can be weaponized to solve all
lab0ur market ills. Other vicissitudes of life find remedies elsewhere, not least of
in the panoply of protections in labour legislation. "5
[18] And again further:
"The glue that holds the listed grounds together is the grundnorm of human
dignity. The authors expressed this view, with which I agree:
'Discrimination is about infringement of dignity (or comparably serious harm),
about an identifiable and unacceptable ground and about the link (directly or
indirectly) between that ground and the differentiation. Should a ground not
8
be listed, it should meet the well-established test for unlisted grounds: it must
have the potential to impair the fundamental human dignity of a person (or
have a comparably serious effect) and has to show a relationship with the
listed grounds."~
[19] In assessing the rationality test on the facts of this matter,
tendered by the chairperson of the selection comm ittee in not interview ing the
App licant was that the selection committee could not give the Applicant more time
than other candidates to complete the practi ent as it wou ld not be fair,
and the Applicant did not report her tee • until Patton enquired from
her whe ther she had submitted her assessment. T-ne reasoning is premised on
the trite principle that employment can iaates should be subject to the same
criteria. The facts are that the App icant did not submit her practical assessment
within the prescribed period that as~ eatedly commun icated to all the
candidates. Wh ilst it may be unfortunate that the Applicant experienced technical
difficulties in submitting her practical assessment, the selection comm ittee's
subsequent decision meets the rationality threshold required for exercising its
powers, as the reasons tendered are a cornerstone of a fair process. In the
circumstance , e explanation tendered by the chairperson of the selection
comm ~ e for its decision to exclude the Applicant from the interview process
cannot be regarded as irrational.
[20] The basis for the Applicant's claim of unfair discrimination on an arbitrary ground
is that, notwithstanding that she subm itted her practical assessment late, Patton
advised her to submit it and did not inform her at that time that she was
disqualified, and thereafter, on the day of the interview Patton advised her that her
disqualified, and thereafter, on the day of the interview Patton advised her that her
interview was delayed, thereby creating the impression that her interview would
take place.
9
[21] The immediate difficulty w ith the Applicant's claim is that it does not address the
fundamental requirements for alleging unfair discrimination on an arbitrary ground
as the App licant does not set out the ground of discrimination on w hich she relies.
W ithout linking the allegation of unfair discrimination to a listed ground or a ground
analogous thereto, the fact that the selection committee did not interview the
App licant after she w as shortlisted, and/or the fact that the First Respondent could
have commun icated its reasons for not interview ing the Applica t in a more
professional manner, 7 does not amount to an actionable affront to the Applicant's
dignity. Absent a ground of discrimination, the Applicant cannot claim that the w ay
she w as treated failed to recognize her intrinsic w orth as an iraaividual.
[22] For the abovementioned reasons, the merits of the Applicant's application do not
support the granting of the relief she seeks.
Costs
[23] The Constitutional Court has held that the ordinary rule that costs follow the result
does not apply in labou[ "R.atte~ . 8 There are no reasons in this matter to justify a
departure from ttiat prineip~
[24] The follo~ raer is made :
1. The First Responden t's application for the condonation of the late filing of
its answ ering affidavit is granted.
2. The Applicant's application is dismissed.
3. There is no order as to costs.
10
Acting Judge of the Labour Court of South Africa
For the Applicant: Adv Q Maxongo
Instructed by: Steenkamp Abrahams Incorporated
For the First Respondent: Adv M Titus
Instructed by: State Attorney
1 The parties w ere requested to make further submissions in respect of the CCMA Form recording an agreeme nt that
the Applicant w ithdraw s her dispute against the First Respo/l?ent, w hich also records that "The matter w ill be referred
to the Labour Court". The Co urt has considered the supplementary representations made by the parties and accepts
that the intention in comp leting the form w as to record that th dispute w ould not proceed in the CCMA but w ould
proceed in this Co urt
2 1984 (3) SA 623 (A ) at p634E - 635C
3 2023 (1) SA 1 (CC ) at paras (57], (60], (67] and (68]
4 2020 ILJ 1931 (LAC )
5 At paragraph (25]; Garbers & Le Roux 'Emp loymen t Discrimination into the Future' 2018 (2) Stell LR 237 - 269, at
249
6 At paragraph (27]; Garbers & Le Roux 'Emp loymen t Discrimination into the Future' 2018 (2) Stell LR 237 - 269, at
261
7 This w as done by merely forwardin!}'the internal email communication between the chairma n of the selection
com m ittee and Patton to the App licant
8 Zungu v Premier of the Prov~ce of K1 f ulu-Natal & others (2018) 39 ILJ 523 (CC ); Long v SA Brew eries (Pty) Ltd
& others (2019)40 ILJ 96t C~