THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: CA 13/2024
In the matter between:
ESKOM HOLDINGS SOC LTD Appellant
(PEAKING POWER STATION) (Respondent in Court a quo)
and
SOLIDARITY OBO AP ERASMUS Respondent
(Applicant in Court a quo)
Heard: 13 May 2025
Delivered: 05 November 2025
Coram: Savage JA, Waglay AJA et Musi AJA
Summary: Unfair discrimination claim – in addition to its EE plan, appellant
maintained a practice of pipelining to promote unrepresented
groups into senior management positions – Court a quo found
that the practice of shortlisting candidates from under -
represented groups amounted to an absolute barrier to non-
designated groups from appointment to positions within the
organisation – EE targets and practice of pipelining rational for
the purposes of promoting and advancing under-represented
persons within the organi sation who have been suspectable to
unfair discrimination at senior management level – Court a quo
erred in finding practice to be discriminatory – Appeal upheld.

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JUDGMENT
___________________________________________________________________
MUSI, AJA
Introduction
[1] This is an appeal against a judgment and order of the Labour Court, in which
it found that the appellant, Eskom Holdings SOC Ltd (Peaking Power Station),
unfairly discriminated against the respondent employee, Mr Erasmus. The
appeal is with the leave of the Labour Court.
Background
[2] It is common cause that Mr Erasmus has been employed by Eskom since
August 1988. He was a Senior Advisor Outage Coordinator. He responded to
an internal advertisement and applied for the post of Senior Manager: Outage
Execution at Peaking Power Station. This post resorts under the Group
Technology Division of Eskom. In terms of Eskom’s recruitment policy, a Staff
Requisition form (GA 13) must therefore be completed in the recruitment
process. The GA 13 must be approved by the m iddle and senior managers of
a division and the Employment Equity assigned manager.
[3] On 3 April 2017, a GA 13 was completed by Mr Pasquallie, a Middle
Manager: Site Outage. The GA 13 was authori sed and supported by the
Senior Manager, Mr Van Staden, who was authori sed to sign an appointment
letter in the case of a successful candidate.
[4] In terms of the GA 13, a white male was to be appointed to the position. It
also stated that ‘ internal pipeline’ was considered and that there was budget
available to fill the post. The Employment Equity Assigned Manager, Dr
Khumalo, wrote in manuscript that preferably an African Male or Female of all
races should be considered.

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[5] During July 2017, the post was advertised internally. Many persons applied
for the position. On his application form , Mr Erasmus indicated that he is an
African. He and other candidates who met the minimum requirements were
shortlisted. Mr Van Staden had earmarked Mr Erasmus for the position and
wanted him appointed to the post. Mr Pasquallie, Mr Van Staden and Ms
Leuw from Eskom’s Human Resources Department interviewed the
candidates. Mr Erasmus was ultimately recommended but was not appointed.
[6] Mr Erasmus was dissatisfied and sent an email to Mr Van Staden in which he
raised several issues in connection with his not being appointed. He thereafter
lodges a formal grievance. The Presiding Officer found that the initial
indication on the GA 13 that only w hite males should be interviewed for the
position was contrary to Eskom’s policy and practice. The Presiding Officer
further found that although Mr Erasmus’ appointment would not have caused
a decline in the Employment Equity (EE ), the reality was that white males
were overrepresented by 16% in the Group Technology Division (GTD) and
there would have been a missed opportunity to promote a candidate from the
designated groups to improve the EE at the GTD. It was also stated that if a
critical position, such as the one for which Mr Erasmus applied, is not filled
during the first round, a manager can motivate for a second round of
interviews and if a w hite male who meets all the requirements and is the
preferred candidate, such a person may be appointed.
At the Labour Court
[7] Ms Dibela, from Eskom’s Human Resources Division, testified that Mr
Erasmus would not have been shortlisted if he had indicated that he was
white instead of African. She testified that although the GA 13 indicated that
the internal recruitment would not have an effect on employment equity ( EE),
Dr Khumalo had indicated that the position should preferably be filled by an
African male or a f emale of all races. She testified that she understood Dr

African male or a f emale of all races. She testified that she understood Dr
Khumalo to be saying that they cannot appoint a w hite male based on
Eskom’s pipelining on the senior management profile of the position.

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[8] She explained that “pipelining” meant that, in order to get the desired race and
gender balance at the top, they have to start building up from Middle
Management. She stated:
‘So the pipelining would be to promote [the] African males in this instance or
to promote females of all races, so that they get the score and reached the
compact, the shareholders compact in terms of what is required.’
[9] Mr Dumisani Mdladla, HR Operations Manager, testified that the person doing
the preliminary shortlisting was supposed to concentrate on African males and
females of all races. He explained that if the process ran without a white male
and no appointment was made, the manager had two options. First, the
manager could request a relook at the shortlisted candidates and add other
race groups. Second, it would be to initiate a second round of recruitment and
relax the EE requirements. He confirmed that the GTD had a target of 25,2%
for African male senior managers, but was sitting at 16,96% and that it was in
line with the targets in senior management to appoint African males so that
they could be part of the pipeline for senior management.
[10] Mr Erasmus testified that he was aggrieved because he was not appointed on
the basis of his skin colour and that his grievance lodged had been
unsuccessful.
[11] He accepted that there was an over -representation of white males at the
senior management level in the GTD. He did not accept the notion of a
pipeline. He never had sight of Eskom’s EE plan.
[12] Mr Van Staden confirmed that he was the Senior Manager: Outage and
Project Execution at Eskom. He confirmed that he wanted to retain Mr
Erasmus and the only way to do so had been by way of a proper recruitment
process. Although he was part of the interview panel, he did not notice that Mr
Erasmus indicated that he was an African. He confirmed that he wrote that
appointing a white male would not have any effect on EE because the person

appointing a white male would not have any effect on EE because the person
to be appointed would be on the same band level for EE purposes.

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[13] He testified that he understood Dr Khumalo’s manuscript insertion to mean
that if a white male and a black male were both found to be suitable for
appointment, then the African male should be preferred. He was referred to
an email written by Ms Nkensani Leeuw in which she stated that ‘the aim is to
create a pipeline for senior management. We are currently not meeting the
targets in terms of race and gender as per our shareholder’s contract [sic],
therefore we cannot appoint a white male’ . His response was that this
objection was not the initial objection to the appointment.
[14] He testified that he was not aware of any policy to motivate for an exception
and that he motivated for the filling of the post. He also indicated to the
General Manager that he wanted to include a white male in the recruitment
process. He confirmed that there is no fixed or firm policy against the
promotion of white males , as he is an example of a white male who was
appointed to his position. He disagreed with Ms Dibela that white males
should have been ignored during the shortlisting stage. He confirmed t hat Ms
Dibela suggested that he should approach Dr Khumalo to request her
permission to appoint Mr Erasmus. He conceded that he did not approach Dr
Khumalo. He agreed that the GTD had the wors t EE figures in the
organisation.
[15] He also confirmed that he wrote a motivation for the appointment of Mr
Erasmus to the Acting General Manager, Mr Nemadodsi , who had responded
as follows:
‘You are spot on this appointment will not impact EE any further than they
are. In trying to query with few stakeholders on this matter, I learned that
Technology has the worst EE numbers in the organization. With that
background, opportunities like this cannot be missed. While we may not
change the picture overnight, we should feel we are doing enough from our
different sections to improve them.
In that, I cannot support this appointment. Please go out to again and I have

In that, I cannot support this appointment. Please go out to again and I have
cleared this with HR, they will allow another round which will be trying [to]
address this unfavourable EE position.’

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[16] The Labour Court found that there was no dispute that a white male, in terms
of the appellant’s practice of implementing its affirmative action measures,
had no possibility of being shortlisted for the post in question. The Labour
Court said that it appears that the inflexible and blunt instrument practiced at
the shortlisting stage must be recogni sed as an absolute barrier to the ability
of members of non- designated groups to compete with the EE candidates
from the inception of a recruitment process. It found that the recruitment and
selection policy did not mention the shortlisting barrier, and there was no
mention of the pipeline in the EE plan.
[17] The Labour Court found that the evidence placed before it went to the
question of whether Mr Erasmus was unfairly discriminated against and
whether an ‘absolute barrier’ was created by the practice of only shortlisting a
category of under -represented candidates. It concluded that the evidence
established that Eskom’s employment practice amounted to an absolute
barrier to non- designated groups and cannot be regarded as an affirmative
action measure in terms of the Employment Equity Act
1 (EEA).
Analysis
[18] Eskom’s EE plan was not challenged. Its validity and applicability were also
not challenged. It was not disputed that , in terms of Eskom’s targets, white
males were over -represented in the GTD. In S outh African Police Services v
Solidarity obo Barnard2, it was stated:
‘[36] The test whether a restitution measure falls within the ambit of s 9(2)
is threefold. The measure must ―
(a) Target a particular class of people who have been susceptible
to unfair discrimination;
(b) Be designed to protect or advance those classes of persons;
and
(c) Promote the achievement of equality.

1 Act 55 of 1998.
2 (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).
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[37] Once the measure in question passes the test, it is neither unfair nor
presumed to be unfair. This is so because the Constitution says so…
This however, does not oust the court’s power to interrogate whether
the measure is a legitimate restitution measure within the scope of the
empowering s 9(2).
…
[42] A designated employer is required to implement several measures in
pursuit of affirmative action. They must identify and eliminate
employment barriers, further diversify the workforce “based on equal
dignity and respect of all people” and “retain and develop people” as
well as “implement appropriate training measures”. Section 15(3)
contains a vital proviso that the measures directed at affirmative action
may include preferential treatment and numerical goals but must
exclude “quotas”. Curiously, the statute does not furnish a definition of
“quotas”. This not being an appropriate case, it would be unwise to
give meaning to the term. Let it suffice to observe that s 15(4) sets the
tone for the flexibility and inclusiveness required to advance
employment equity. It makes it quite clear that a designated employer
may not adopt an Employment Equity Policy or practice that would
establish an absolute barrier to the future or continued employment or
promotion of people who are not from designated groups.’
[19] It is common cause that Mr Van Staden informed the erstwhile General
Manager (GM) that he wanted to promote Mr Erasmus to the post. He
motivated his intentions to the GM by stating:
‘When we negotiated with Altus [Erasmus] to be transferred to Outage
management one of the commitments was that we will recruit for the Manager
Site Outage vacant position on my proposed structure. I need permission for
the following to make this happen [or] else I [am] really running the risk [of]
losing him, putting not only the upcoming outages at Palmiet at risk but also
the outage planning process for Gariep and Van der Kloof, which he is busy
with as well.

the outage planning process for Gariep and Van der Kloof, which he is busy
with as well.
a. Approval of my changed structure.
ci,
Ir c:/
bJ
.,

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b. Approval to interview selected people for the manager site outage
position in that structure with the aim to promote.’
[20] To that extent, Mr Van Staden and Mr Pasquallie indicated on the GA 13 that
a white male should be appointed to the post. Dr Khumalo should have been
aware of the contents of the GA 13, specifically the intention to appoint a
white male ; otherwise, she would not have recommended that an African
male or a female of all races should be given preference. The GM and Mr Van
Staden knew that Mr Erasmus was a white male. There is no evidence that Mr
Pasquallie did not know that Erasmus was a white male. They did not object
to him being shortlisted; likewise, the HR representative at the interviews did
not raise any objection. It seems to me that Mr Erasmus was shortlisted and
interviewed while Eskom knew that he was a white male. Ms Dibela’s
testimony that they would not have shortlisted him had they known he was a
white male is opportunistic. The issue that he indicated that he was an African
was never raised during or after the interviews.
[21] Mr Erasmus accepted that if Dr Khumalo did not write what she wrote, white
males would have been shortlisted. He also conceded that there was a
practice to allow for motivation to include people from over -represented
groups, including white males. He categorically stated that his grievance was
that he was not appointed because of his skin colour. That is so because he
was shortlisted despite Eskom knowing that he is white.
[22] Mr Van Staden also stated that there is no absolute barrier against white
males being shortlisted or appointed. He testified as follows:
‘Yes, as per the emails that you’ve probably seen, I did motivate right from the
beginning to say that, fir st of all, I need to fill the position and then secondly,
there is a possible candidate that I would like to include in the recruitment
process, hence my specific note in the GA 13 of a possible white male.’

process, hence my specific note in the GA 13 of a possible white male.’
[23] He further testified that the interview was not conducted contrary to the GA 13
because it specifically mentioned a white male. With regard to a policy against
promoting white males, he stated:
ci,
Ir c:/
bJ
.,

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‘My lady in my experience it is not a fixed and firm policy that no white will be
promoted. Yeah, and certainly I was an example of that.’
[24] Although the pipeline is not mentioned in the EE plan, it is clearly a
requirement on the GA 13. Mr Van Staden and Mr Pasquallie indicated that
the internal pipeline was considered when the GA 13 was completed.
Consideration of the internal pipeline was therefore always a consideration.
[25] On the pipeline, the Labour Court correctly concluded that the pipeline
appears to be a rational career pathing initiative to develop persons from
designated groups towards taking up positions at senior management level.
Mr Erasmus’ case that the pipeline concept was not part of Eskom’s
recruitment and selection process is of scant assistance because it was a
known practice and part of the GA 13.
[26] In my view , the evidence establishes that Mr Erasmus was not appointed
because of the EE targets and the pipeline that Eskom implemented to
change the demographics at the s enior management level. This was a
rational way to target a particular class of persons who have been susceptible
to unfair discrimination at that level; it was conceived to protect and advance
them, and it promotes equality.
[27] I therefore make the following order:
Order
1. The appeal is upheld with no order as to costs.
2. The order of the Labour Court is set aside and replaced with the
following:
‘ The application is dismissed.’

________________
CJ Musi AJA

Savage AJ and Waglay AJA concur.

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APPEARANCES:
FOR THE APPELLANT: Adv Anton Myburgh SC
With Zinhle Ngwenya
Instructed by Edward Nathan Sonnenberghs Inc
FOR THE RESPONDENT: Adv DJ Groenewald
Instructed by Serfontein, Viljoen & Swart Attorneys
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