IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO.
C1041/2001
In the matter between:
RICHARD BENJAMIN
Applicant
and
UNIVERSITY OF CAPE TOWN
Responde
nt
_______________________________________________________________________
_______
JUDGMENT
_______________________________________________________________________
_______
NDLOVU AJ
[1] The Applicant =s dispute emanated from his unsuccessful
application for appointment as Senior Subject Librarian, W H Bell
Music Library of the Respondent, the University of Cape Town
(the AUCT@).
[2] When the dispute arose the Applicant was in the employ of the
UCT as a librarian in the General Library. In his statement of
claim he sought an order directing the UCT to employ him to the
post concerned; alternatively, to pay him compensation in terms
of Section 50(ii)(a) of the Employment Equity Act 55 of 1998; or
alternatively, compensation for the violation of his constitutional
rights in the amount equivalent to 24 months = remuneration at
the rate of the salary payable to the incumbent of the post in
question.
[3] In terms of the parties = pre-trial minute the Court was required
to decide on the following issues:
A3.1 Whether the failure to appoint the Applicant and the
appointment of Ms Strauss to the position of Senior
Subject Librarian, W H Bell Music Library constitutes
unfair discrimination in terms of section 6(1) of the
Employment Equity Act 55 of 1998 (the AEEA@) on the
basis of sex, alternatively because the Applicant is
better qualified than the successful candidate.
3.2 Whether an Applicant may enforce a general right to fair
labour practice in terms of Section 23 of the
Constitution, that has not been given effect to in
legislation, in the Labour Court.
3.3 In the alternative [to paragraph 1.1 above], whether the
failure to appoint the Applicant violates the Applicant =s
right to fair labour practice[s] as in terms of Section 23
of the Constitution.
3.4 Whether the procedure followed in the selection process
violates the Applicant =s right to fair labour practices in
terms of Section 23 of the Constitution@.
[4] In September 2000 the UCT advertised the post Senior Subject
Librarian: W H Bell Music Library ( Athe said post @) in the print
media . The requirements for a successful candidate were
advertised as follows:
* A university degree (preferably in Music, or if not, other
musical training) and a post-graduate diploma in library
and information science or an equivalent qualification;
* At least 3 to 5 years experience in a Music Library;
* Substantial subject expertise in music;
* Good knowledge of electronic resources in music;
* Music collection development experience;
* Staff supervisory skills;
* Proven management skills in an information services
position; and
* A working knowledge of one European language would
be advantageous.
[5] The Applicant submitted his application for the said post. His
qualifications included a Bachelor of Music (BMus) degree and a
post-graduate diploma in library and information service. He
further averred that he possessed almost every aspect of the
requisite appropriate experience, as advertised.
[6] On 23 October 2000 the Applicant, together with other
candidates who had been short-listed with him, was called for
interview, which he duly attended. However, in January 2001 he
was advised by the UCT =s personnel department that his
application was unsuccessful. Mrs Julian Strauss, also an
employee of the UCT, was appointed to the said post.
[7] The UCT claimed that for some period of time there was serious
staff conflict that prevailed in the music library which then
necessitated and prioritised the requirement of sound
managerial experience on the part of the successful candidate in
order to resolve the said staff conflict. Hence, the selection
committee focused their attention more on managerial
experience. The Chairman of the selection committee was Mr
Massawe, in his capacity as the UCT =s Manager: Humanities
Information Services.
[8] Several witnesses, including the Applicant himself, gave
evidence in support of his case. The first witness was Robin
Josephine Gherasim, being one of the three candidates who were
interviewed with the Applicant for the said post on 20 October
2000. Gherasim was also unsuccessful. She had previously
worked in the music library, both as assistant librarian and
librarian-in-charge, during the period October 1983 to February
1990.
[9] As at the time of her application for the post Gherasim had
already been elevated to the position of Information Project
Officer which was at pay-class 10 level, higher in relation to the
said post, which was at pay-class 9 level. She had, however,
been informed that in the event of her application being
successful, her salary would not be reduced. She told the Court
that even though the said post was lower than her current
position in status, she had applied because she enjoyed working
in the music library.
[10] Gherasim told the Court that during her interview she was asked
questions about her qualifications, her experience on the subject
music knowledge, as well as her current job as information
project officer. She was asked only one question about the
acrimony between the two staff members in the music library.
She was then asked how she would resolve the conflict.
However, she said, the focus of the entire interview was on her
knowledge of music as a subject.
[11] Prior to the interviews being conducted a memorandum was
drawn up by Professor Peter Klatzow of the Music Department,
known as the S A College of Music, which contained a profile on
each candidate=s suitability for the said post, as recommended
by Klatzow.
[12] In terms of the Klatzow =s Report Gherasim was ranked the
lowest of all the candidates. Klatzow reported that, due to her
laziness, Gherasim had caused a Adisaster@ in the music library
when she had previously had a stint there. Gherasim told the
Court that the Klatzow=s document was not shown to her prior to
the interview. However, she conceded that some questions were
put to her about the backlog in the processing of the music
library purchases during her time.
[13] This witness further told the Court that one of the members of
the selection committee, Ms Cecilia Walter, had told her of her
dissatisfaction and frustration occasioned by the selection
committee=s recommendations not being accepted by the
Library Director, Ms Joan Rapp. As a result, Walter had
expressed her unwillingness to serve in any of the selection
committee in the future.
[14] She testified further that she spoke to Massawe, who was also
upset about Rapp refusing to accept the committee =s
recommendation. In her 7 years = experience in the music
library, she reckoned that the requirements for the said post
were (a) the subject knowledge in music, attainable through the
acquisition of a bachelor =s degree in music (B Mus), and (b) a
minimum of about 5 years= experience in a music library.
[15] The witness conceded that the selection committee did not have
a final say in staff appointments. It only made
recommendations. She had a B Mus. degree and an honours
degree in librarianship.
[16] Gherasim further told the Court that she was not happy about
not getting the job. However, she did not feel she was
discriminated against on the ground of her being a female,
because the successful candidate was also a female. She
pointed out that Strauss did not have a music degree.
Therefore, according to her, Strauss did not have the subject
music knowledge.
[17] The next witness was the Applicant himself, Richard Langner
Benjamin. He applied for the said and was unsuccessful. He
held a B. Mus degree. Prior to the interview he spoke to
Massawe over the phone. Massawe informed him that during the
short-listing process his ( the Appicant >s) qualifications and
experience had been found to be excellent. The only concern
was that he required to submit an updated reference
(testimonial). He told the Court that he had then furnished
Massawe with the name of Mr John Andrea, the Deputy Librarian
of the University of the Western Cape (Athe UWC@) together with
Andrea=s contact details. Indeed, there was a communication
between Massawe and Andrea which resulted in Andrea e-
mailing Massawe a testimonial on the suitability of the Applicant
for the said post.
[18] The Applicant told the Court that during his interview he was
asked questions pertaining to the requirements for the said post
as advertised. However, at some point, questions were asked on
his supervisory knowledge and experience. He said when he left
the interview room he had felt quite positive about getting the
job. Massawe even shook his hand and invited him for an
orientation of the music library.
[19] After about 6 weeks without hearing of the outcome of his
application, the Applicant decided to phone Massawe and
inquire. He said Massawe told him that Rapp was Asitting@ on
the selection committee =s recommendation and not making a
decision. During that telephone conversation Massawe had
uttered some disparaging words about Rapp.
[20] On a subsequent date the Applicant bumped against Massawe on
the floor of UCT libraries and they discussed about this matter.
Massawe told him that there was a management crisis at the
UCT Library and that the said post had been offered to another
person. Massawe told him that the terms of reference for the
said post had since been changed and, as a result, the UCT was
then looking for a person who could solve the management crisis
in the music library. On that day Massawe sounded a changed
man in his attitude. He was then negative and dismissive of the
Applicant.
[21] The Applicant further told the Court that he held a B. Mus degree
and a post graduate diploma in library and information science.
He had the relevant experience, which included the following:
* 5 years in the music library
* 4 years in the main library
* 7 years in Apre-university@ music.
[22] He said he also had staff supervisory skills, in that when he was
at the UWC he had an assistant librarian and two student
assistants reporting to him. He acknowledged, however, that the
UCT=s music library was much bigger and, therefore, had more
library staff. Further staff supervisory experience was acquired
when he was in charge of a subtropical gold fish farm where he
was supervising farm workers.
[23] The Applicant then referred to various aspects of both the
appropriate knowledge of the subject music and the music
library experience, which he said he was in possession of and
without which one could not competently and efficiently perform
in the said post. He testified that Strauss did not have most of
these qualifications and experience. For instance, Strauss did
not have a degree in music, which the Applicant understood to
be the threshold on suitability for the said post. He referred to
the selection committee =s report which stated clearly that
although Strauss was excellent in other aspects, she lacked the
music subject knowledge. The Applicant contended that, for that
reason, it meant Strauss could not do half the job involved in the
said post.
[24] The Applicant further testified that he was shown the Klatzow
Report only two days before the interview. He was never asked
any question on that report.
[25] He felt that not being appointed to the said post, despite being
appropriately qualified and experienced thereto, was an assault
on his dignity. His rejection had taken an enormous toll on his
life. He submitted that Strauss was put into the job for some
arbitrary reason.
[26] In answer to cross-examination, the Applicant said he had
assumed that his discrimination was gender-based. The
assumption was based on the fact that the successful person was
a female and that there was no other rational explanation he
could find for the decision. He conceded that he had no facts to
substantiate his averment in this regard.
[27] He further stated that Massawe told him that the person who was
appointed (Strauss) had not even applied for the job. He did not
know where the allegation came from that he had said that he
was not appointed because he was better qualified than Strauss.
[28] The Applicant further told the Court that he had not known all
the members of the selection committee prior to the interview.
Those were Massawe, Walter and (Mr) Tuffin. She had also
never met Rapp.
[29] He had worked for 10 years at the UWC library and as far as he
was concerned there were no shortocmings in his performance
there. However, about 4 years of his time at the UWC library he
was not on a full-time basis.
[30] In his curriculum vitae ( Athe CV@)the Applicant stated that when
he was at the UWC Music Library the enrolment in the Music
Department had waned, resulting in their music library being
deprived of the full-time status. The Applicant was thereupon
appointed to the position of Science Faculty Subject Librarian
serving the departments of Maths, Physics, Chemistry, Applied
Maths and Statistics and (in addition, when there was a staff
shortage) Botany, Zoology, Microbiology and Biochemistry. He
conceded that although he did not have university qualifications
in any of the abovementioned subjects, he managed to proffer
library assistance therein.
[31] The Applicant could not dispute an assertion that Strauss was
preferred over him because she had more supervisory and
proven management skills. He contended, however, that he had
supervised more people at the fish farm. It was put to him that
his fish farm management experience was irrelevant to the
management experience required for the said post. He further
told the Court that he worked as manager of the fish farm for
some 7 - 8 months.
[32] The third witness was Cecilia Winniefred Mary Walter. She was
employed by the UCT as Senior Librarian: Humanities Section
(Main Library). She was a member of the selection committee
which interviewed the Applicant and two others for the said post
on 23 October 2000.
[33] The witness was referred to the UCT =s document titled: APolicy
and Procedures for Recruitment and Selection @, which was
amongst the documents in the court file. Walter told the Court
that she could not remember whether she read the document
prior to the interview. The document was approved for
implementation on 2 September 1998. The witness could not
recall whether the selection criteria were discussed before the
interview but she added that they would normally talk about that
before the interview began.
[34] She did not think that the selection committee considered the
recruitment process as provided in the document. She also
could not remember how the committee screened the
applications.
[35] Walter acknowledged that sometimes the selection criteria were
adjusted at the interviews if circumstances relating to the post in
question changed.
[36] The witness told the Court that the selection committee
recommended the Applicant for the said post. She had felt upset
when their recommendation was not accepted. She had taken it
personally as she thought the rejection reflected on her integrity.
She admitted she did say afterwards that she would never be
involved with selection committees again.
[37] The witness further said she thought that she was also involved
in the interviewing of Strauss. However, she was not sure about
it. Strauss had been known to her as a colleague prior to the
said post being advertised. She said it was within her personal
knowledge that Strauss was Ahighly regarded as a manager@.
[38] Michael Paul Tuffin was the next witness for the Applicant. He
was the Acting Director of the S A College of Music. During the
time of interviews for the said post he was the Senior Lecturer
holding the portfolio of library matters. He served on the
selection committee which dealt with this matter. He further
served on the committee which sat on 19 December 2000,
during which session Strauss was interviewed and selected.
[39] The witness further testified and confirmed that there was a staff
conflict in the music library, which necessitated the management
skills becoming a paramount requirement for the said post. The
friction among the staff concerned was of a racial nature. There
were four staff members involved in the conflict, including the
senior library assistant.
[40] In answer to cross-examination, Tuffin told the Court that Strauss
had subsequently performed superbly to the extent that it was
then pleasant to work in the Music Library. He testified that she
(Strauss) had involved herself fully in the library management.
As he described it, Ashe had been incredibly helpful @. He
further told the Court that Strauss had marvellous knowledge of
a computer. She was also very firm on the staff and had a lot of
managerial experience. He testified that prior to Strauss >s
appointment to the said post the music library was in a chaotic
condition. The witness further told the Court that the fact that
the Applicant was a male person did not in any way play a role in
the selection of the suitable candidate.
[41] He told the Court that although he had received the Klatzow
Report he did not remember using it. He did not give it to the
committee colleagues either, although he might have discussed
it with them.
[42] The next witness to testify on behalf of the Applicant was Julian
John Massawe. He was employed by the UCT as Manager for
Humanities: Information Services. The music library fell under
his line function. He chaired the select committee on 23
October 2000. The Chairman =s Report (included at pages 21 -
23 of the court bundle) was compiled and signed by him on the
basis of the selection committee =s deliberations. He said he
recalled that at some point he sought the advice of the human
relations colleague before he submitted the final report to the
Director, Ms Rapp. He did not formally consult with the other
members of the committee. Although he did not recall, but he
would have informed the other selection committee members
about the report at each drafting stage. He was not sure
whether they saw the final version of the Report. After finishing
the Report he and Ms Tilney (the human resources advisor)
approached Rapp to discuss the Report.
[43] The witness pointed out however, that at that stage the Report
was not in the typed form but only a handwritten draft. He told
the Court that he and Tilney had gone to Rapp in order to seek
her advice on the matter as well. He told the Court that in terms
of that draft the selection committee had recommended the
Applicant as the most appointable of the three candidates who
had been interviewed. He added that at the same time they
had, however, expressed concerns about the Applicant =s lack of
managerial skills. In other words, it was a draft
recommendation which was subject to qualification.
[44] Massawe then referred to the staff conflict in the music library at
the time. He said, as a result of that situation, Rapp had
proposed that the selection committee should cast their net
wider in order to get someone with proven managerial expertise.
At one point Rapp intimated that the said post should be re-
advertised. However, the fact was considered that there were
other applications in respect of Pay-Class 9 positions, which
could be looked into. This consideration was taken because the
said post also fell under the Pay-Class 9 category.
[45] Massawe told the Court that he then returned to the committee
members and informed them of Rapp=s instruction and that they
had to conduct an extra search for a suitable person with proven
managerial skills. He went back to the long list, that is, the list
of all the applications that had been received. He checked on
the CV=s of all the applicants with a view to see if there was
anyone with sound managerial experience. They went to the
human resources department to check on the list of applicants in
respect of other positions. It was there that they managed to
get the name of Strauss who had applied for a relief position in
some other section. This relief position was still a senior post,
being at pay-class 9 level.
[46] Although Massawe testified about the name of Strauss being
brought forward for consideration for the said post, he said he
was not quite sure about how this was achieved. He kept on
uttering phrases such as: AI can=t remember precisely ... @; AI
don=t think we .... @, AI am sorry, I can =t remember precisely
how this happened ...@; AI can=t remember, but I doubt ... @; AI
have a vague recollection ...@, etc.
[47] Massawe was then asked by Mr de Waal (for the Applicant) as to
why in the Chairman =s Report he (Massawe), in his description
of the selection criteria for the said post, left out the word
Amusic@ in almost all the requirements for the said post,
contrary to the wording of the requirements as advertised. In
the Chairman=s Report the selection criteria were described as
follows:
AUniversity Degree, preferably in Music and a Post
Graduate Diploma in Library and Information Studies;
at least three to five years library experience; sound
subject knowledge; good knowledge of electronic
resources; staff supervisory skills and proven
management skills in an Information Service
position@.
[48] In response, Massawe stated that the omission of the word
Amusic@ was apparently occasioned by the fact that the
selection criteria in the Report were in a summary form and were
not meant to be a copy of the advertisement. Mr de Waal =s
persistent line of questioning on this point eventually inclined the
Court to caution him of the rule against cross-examining his own
witness.
[49] In response, Massawe stated that it was all the time known that
the subject under discussion was Music. Therefore, he did not
find it necessary to keep on repeating the word Amusic@ in his
summary.
[50] He further told the Court that during the interview of Strauss it
came to light that she had worked with music collection at Port
Elizabeth Technikon where she was the Head of the Educational
Library. At UCT she also worked with audio-visio material, tape
recordings and DVD=s.
[51] The witness further testified that the composition of the selection
committee that interviewed Strauss was the same as the one
which interviewed the Applicant and two others, namely,
Massawe, Tuffin, Walter and Tilney.
[52] In reply to cross-examination by Mr Oosthuizen SC ( for the
Respondent) Massawe told the Court that since Strauss >s
appointment had performed excellently in the music library. The
witness, as the line manager of the music library, had received
reports on a regular basis with regard to Strauss =s performance.
He said Strauss had considerably improved the areas such as the
collection department, the bibliographic construction, the overall
organisation of the collection, staff development management,
as well as dissemination of information to the UCT =s clients,
especially the immediate clientele, that is, the SA College of
Music, the academic staff and students. Over and above this, she
also dealt with the outside clients.
[53] Massawe confirmed that the selection committee had been
concerned about the Applicant =s lack of managerial experience.
This shortage in the Applicant =s qualities had nothing to do with
him being a male. It also had nothing to do with the Applicant
being allegedly better qualified than Strauss.
[54] Strauss had further told the committee that she was willing to
improve her musical knowledge. Tuffin, who was a senior music
lecturer, volunteered to help her in that regard.
[55] That basically summed up the Applicant=s case.
[56] The evidence on behalf of the UCT =s case was adduced from Ms
Ann Louise Tilney and Ms Joan Rapp.
[57] Ms Tilney was employed by the UCT as its Human Resources
Advisor, which was part of the Human Resources Management
Department. She had been attached to that department for 14
years. The compilation of advertisements for vacant posts was
normally done by her department in consultation with the
Director or Budget holder for the area where the vacancy
existed, such as a Dean. Thereafter a selection committee
would be nominated to make recommendations of the best
candidate for the job. The line manager of the area concerned
would become the chairperson of the selection committee. It
would be ensured that members of the selection committee
were familiar with the UCT =s recruitment and employment
policy. A sub-committee of the selection committee would be
formed to take the responsibility of short-listing the candidates
for interview.
[58] Once all shortlisted candidates were interviewed, the selection committee would
discuss the merits of the candidature. Thereafter a recommendation would be made and
forwarded to the Director, who would then make a final decision on the matter. The
Director was not bound by the recommendation of the selection committee. If the
Director was not in agreement with the recommendation, he or she would give a direction
to the selection committee as to the conduct of further proceedings in the matter. She
(Tilney) testified that, indeed, the recommendations of selection committees were not
always accepted by the Director or Budget holder, as the case might be.
[59] The witness acknowledged that the UCT =s recruitment and
employment policy (contained at pages 53 - 73 of the court
bundle) was in place at the time of the interview of the Applicant
and two others. This document was to ensure consistency in
the recruitment procedure. The witness further testified that
she was present, as a member of the selection committee,
during the interviews of both the Applicant and Strauss. She
told the Court that she did not see the Klatzow report prior to the
interview. She had seen the Report for the first time only on the
Monday preceding the day of her testifying in Court.
[60] Tilney further told the Court that their major concern with regard
to the Applicant=s position was the fact that the Applicant lacked
management skills especially in the context of the said post. At
that time there was a very serious inter-personal staff conflict in
the music library and it appeared to be escalating. As a result
of that conflict certain systems did not appear manageable.
That was why it was felt strongly that the successful candidate
must have proven managerial experience. The Applicant =s lack
of this experience was discussed by the committee. Thereafter
the Chairman Massawe and herself approached Rapp in that
regard. Although she could not recall the specifics of their
meeting with Rapp, she told the Court that they did express to
Rapp their concern about the Applicant =s lack of managerial
experience. It was her understanding that they, as the selection
committee, did not have the final say in the matter. They
considered the way forward on the basis of two options, namely,
to readvertise the said post or to consider other applications in
respect of other posts which had been received. The latter
option was preferred. Hence, the name of Strauss came up.
Strauss had applied for a relief position of senior librarian. She
had been short-listed for that post. Thereupon, an interview was
arranged and held with Strauss for the said post.
[61] She further testified that Strauss was the former Head of the
UCT=s Education Library, which was larger than the Music
Library. During her interview she showed leadership qualities.
She was asked questions about her managerial experience and
her account thereof impressed the committee. As a result, the
committee formed the impression that Strauss was the most
suitable candidate for the job. According to the witness, Strauss
had in fact exceeded the committee=s expectation.
[62] Tilney further stated that Tuffin, as a music expert, had explored
the music aspect knowledge from Strauss. Tuffin felt that Strauss
did have the sound basic grasp of music and that she could read
it. Further, Tuffin had said he was prepared to give Strauss the
necessary guidance. Hence, the committee recommended her
for the said post.
[63] The witness stressed that Strauss was preferred over the
Applicant because of her sound managerial experience. The
fact of the Applicant being male and allegedly better qualified
did not play any role in him not being employed. Strauss started
on the job on 1 April 2001.
[64] The witness told the Court that the selection criteria as reflected
in the Chairman=s report was only a summary of what the
advertisement contained. In this regard she agreed with
Massawe. She testified that the mere fact that the word
Amusic@ was largely omitted in the report did not mean that the
committee was blind of the fact that the subject matter was
music. Although according to Strauss =s CV she did not have
any formal music training, she had had exposure to sheet music,
audio-visual materials and other materials relevant within the
music library. She pointed out that the heading of the
Chairman=s report read:
ASelection Committee for the post of Senior Subject
Librarian; (Pay Class 9); WH Bell Music Library; UCT
Libraries@
and that therefore, everything that appeared thereunder had to
be read within that context, that is, that it had to do with the
music library.
[65] It was pointed out to the witness (during cross-examination) that
the word Amusic@ was mentioned four (five ??) times in the
advertisement and yet only once in the report. In response, the
witness pointed out that the advertisement was aimed for the
external audience and, for that reason, it had to be specific;
whilst the report was only for internal purposes. She stated
that in her experience she had never seen the chairperson =s
report being a verbatim copy of the advertisement concerned.
The witness further stated that the selection committee was
entitled to add to or adjust the selection criteria to suit the
circumstances. In this regard she referred to paragraph 5.1 of
the recruitment and employment policy (at page 63 of the court
bundle) which provided that the Acriteria may be expanded
upon@ so long as it was not inconsistent with the advertisement.
As a result, the committee had readjusted the criteria to
prioritise management skills for the said post. The committee
had then looked through all other CV =s, searching for proven
management experience and some music knowledge, without
excluding the other criteria. The witness further referred to the
advertisement where it said that a successful candidate required
to have Aa university degree (preferably in music) @. She
pointed out that this did not mean that it had to be a music
degree, necessarily. Further, it was to be recalled that Strauss
had submitted her CV in respect of the position of a relief senior
librarian in the general library. The CV was used for the purpose
of considering her for the said post.
[66] The staff conflict in the music library was between the senior
library assistant and the library assistant. It was a matter widely
known in the broader library environment. It was for that reason
that the requirement was included of Asound managerial skills@.
The said conflict had started to develop in such a way that it was
affecting adversely the whole operation of the music library.
There was no way that this aspect could be ignored. Otherwise,
it would amount to negligence on the part of the UCT =s
authorities.
[67] Each member of the selection committee was allocated specific
questions (to put to the candidates) depending on their
respective specific fields. The questions constituted each
committee member=s working record.
[68] She could not recall what specific questions she asked.
However, as a human resources advisor she reckoned the
questions could have been about inter-personal skills, human
relations and other incidental issues emanating from a particular
candidate=s answers.
[69] Rapp was employed as the Respondent =s Executive Director of
Libraries. She started in 1998. She was the one who made the
final decision to appoint Strauss.
[70] She told the Court that the selection committee made a
recommendation to her. She was not bound by the
recommendation. Before making a decision she would reflect on
the matter and try to get a better overview of all relevant
factors. If she felt that the selection committee had not
sufficiently considered certain aspects she would either refer the
matter back to the committee or simply reject their
recommendation. However, she said about 80% of the
recommendations she had accepted.
[71] She recalled that the present case was reported to her. But it
was hard for her to remember the exact conversation which she
had with the committee. She recalled that there were three
candidates involved. The Applicant did not have experience in
managing people. This aspect was important because there was
a history and an existing situation of supervisory, management
or organisational problems in the music library. The person who
had left the post had not done well. There was a number of
other issues that came to attention. There were security
breaches and laxity. For instance, in some cases, security wires
had been disengaged before closing hours in order that someone
could return to the building later, probably for some illicit
activities.
[72] When the matter was discussed with her, two options came up,
namely to re-advertise the said post or to look through other
applications which had been received for a Pay-Class 9 position.
She decided to go for the latter option. Consequently the name
of Strauss came up.
[73] She told the Court that Strauss had a wealth of management and
supervisory experience and had a broad knowledge of the
library. As a result of her (Strauss) having such combination of
skills and ability, she was appointed. The fact that the Applicant
was a male or allegedly better qualified, did not play any role in
him not being appointed. The witness added that, in fact, she
did not view the Applicant as better qualified than Strauss.
[74] She further told the Court that for the two years Strauss was in
office she had performed exceptionally well. She (Strauss) had
undertaken several initiatives to clean up the problems the
witness had cited.
[75] The witness further told the Court that at UCT the librarians did
not normally have expertise in the libraries they were in charge
of. For example, the medical library was not headed by a person
who had medical qualifications. The same applied to the
commerce librarian, architectural librarian, art librarian, biology
librarian, etc. The requirements as published in the
advertisement were mere guidelines.
[76] The witness was asked whether she agreed that paragraph 11.5
of the UCT=s recruitment and employment policy had to be
strictly observed. The paragraph reads:
A11.5 The Selection Committee should ensure that
the recommended candidate fulfils the
minimum publicised criteria and is appoint
able@.
[77] In response the witness said she was not aware whether that
provision was a guideline or prescribed mandate. She said it had
to be remembered that the institution of music library operated
within the context of the General Library. It was not just standing
on its own.
[78] That concluded the case for the Respondent.
[79] The issues which were either common cause or not in dispute
included the following:
79.1 During September 2000 the UCT published an
advertisement for the vacant post of Senior Subject
Librarian: WH Bell Music Library.
79.2 Of the people who submitted applications for the said post
only three were short-listed and the Applicant was one of
them. Strauss, who had originally applied and been short-
listed for a relief position on the same pay-class level, was
subsequently appointed for the job.
79.3 Both the Applicant and Strauss were employed by the UCT
in different capacities.
79.4 The advertisement incorporated eight requirements,
constituting the selection criteria, which had to be satisfied
by a successful candidate. These were:
* A university degree (preferably in Music, or if not, other
musical training) and a post-graduate diploma in library
and information science or an equivalent qualification;
* At least 3 to 5 years experience in a Music Library;
* Substantial subject expertise in music;
* Good knowledge of electronic resources in music;
* Music collection development experience;
* Staff supervisory skills;
* Proven management skills in an information services position;
and
* A working knowledge of one European language would be
advantageous.
79.5 The Applicant and other two candidates were interviewed
by a selection committee on 23 October 2000. They were
all unsuccessful. In the order of their preference (albeit
unsuccessful) the Applicant topped the list.
79.6 As stated already, Strauss had originally applied for a relief
position of senior librarian in the general library. She had
submitted her CV for that vacancy and had also been short-
listed. She was subsequently invited for interview in
respect of the said post and was interviewed on 19
December 2000.
79.7 The selection committee consisted of the following
members (who were all the UCT=s employees):
Mr Massawe: (Manager: Humanities Information
Services);
Ms CWM Walter (Senior Librarian: Humanities - Main Library);
Mr MP Tuffin (Acting Director: Department of Music).
79.8 The Chairperson=s (Massawe=s) Report which incorporated
the profile of all interviewed candidates (including Strauss)
and the recommendation, was drawn up. In terms of the
Report the selection criteria for the post was described in
the following manner:
* A university degree, preferably in music and a post
graduate diploma in library and information studies;
* At least 3 to 5 years library experience;
* Sound subject knowledge;
* Good Knowledge of electronic resources;
* Staff supervisory skills;
* Proven management skills in an information
service position.
79.9 The Report referred to an employment policy document
titled APolicy and Procedure for Recruitment and
Selection@. In terms of this document the recruitment
procedure involved, initially, the appointment of a selection
committee. The responsibilities of the selection committee
included:
* the development of a fair selection criteria (5.1)
* the systematic measurement of candidates Aagainst the
set of explicit job related criteria, both at the initial
screening of candidates into lists A, B and C, and when
interviewing ....@ (5.2)
* development of a set of standard questions based on
the criteria for the post ... which will be put to each
candidate ... (5.3)
* a discretion to contact referees not specifically mentioned by the
Applicant (5.5)
* not permitted to recommend a candidate for
appointment to the permanent staff establishment
without interviewing the candidate concerned;
79.10 On the question of selection criteria, the selection
committee must ensure that:
* AWhenever possible, rigid criteria related to
formal qualifications should be avoided. As far
as possible, criteria should be defined in terms
of skills rather than formal educational
requirements in order to avoid building on past
disadvantage. (8.2)
* The value of experience in different types of
organisations and situations needs to be
recognised@. (8.3).
79.11 The recruitment strategies dictated, among other
things, that:
* AAll recruitment exercises must involve a
rigorous, productive search for appoint able
candidates who are South African and are black,
women and/or disabled by means of targeted
advertising, net working and, as appropriate,
>head-hunting=@ (9.1)
* AInformal >head-hunting= for qualified
Applicants particularly from the designated
groups (was) acceptable but should not replace
advertising to as wide a group as possible@ (9.3)
* The selection committee may identify potential
Candidates (internal and external) for the post,
bearing in mind the need to change UCT =s staff
profile and for departments to meet employment
equity targets@ (9.4).
79.12 The procedure for the short-listing of candidates
involved, among other things, the following:
* There are three lists, namely A, B and C lists,
into which all Applicants are categorised.
* AThe A list is for Applicants who, based on the
papers, are the most promising candidates (the
proposed short-list). The B list should comprise
of secondary candidates who may be worth
investigating. The C list is for Applicants who do
not meet the minimum criteria for the post @
(10).
79.13 Both the Applicant and Strauss were placed in the A list.
79.14 After the interviews were concluded the selection
committee=s chairperson would prepare and send a report
to an official who was designated by the Vice-Chancellor to
consider the selection committee =s report and make a
decision. In the report the chairperson must motivate why,
in the opinion of the selection committee, the
recommended person was considered the best candidate
(12.1).
[80] The recruitment and appointment of staff is a function and
power assigned to and conferred upon the UCT, which it
performs and exercises as part of the fulfilment of its operational
requirements as an educational institution. It is the process
which, together with other operational activities, serve to attain
the ultimate goal, namely, the general success of the institution
in all its spheres of educational business.
[81] Indeed, in essence the Applicant =s case constitutes an
application for review and setting aside of the UCT =s decision to
appoint Strauss, instead of the Applicant, and to appoint the
Applicant to the said post; alternatively to grant the Applicant
appropriate compensation.
[82] The UCT is a public educational institution and those people
appointed to run its management and administration are
functionaries the exercise of whose powers need not be lightly
interfered with. In Pharmaceutical Manufacturer =s
Association of SA and Others: In re Ex Parte Application
of the President of the Republic of South Africa and
Others 2000(3) BCLR 241 (CC) the Constitutional Court made
it clear that -
AAs long as the purpose sought to be achieved
by the exercise of public power is within the
authority of the functionary, and as long as the
functionary=s decision, viewed objectively, is
rational, the Court cannot interfere with the
decision simply because it disagrees with it, or
considers that the power was exercised
inappropriately. A decision that is objectively
irrational is likely to be made only rarely but if
this does occur, a court has the power to
intervene and set aside the irrational decision
(at paragraph 90).
[83] Recently, this Court in Basson vs Provincial Commissioner
(Eastern Cape) Department of Correctional Services
[2003] 24 ILJ 803 (LC) at 820 C-F; [2003] 4 BLLR 341 (LC)
at 355 I - J/356 A - B, stated as follows:
AThe courts are, generally, wary and reluctant to
interfere with the executive or other
administrative decisions taken by executive
organs of government or other public
functionaries, who are statutorily vested with
executive or administrative power to make such
decisions, for the smooth and efficient running of
their administrations or otherwise in the public
interest. Indeed, the court should not be
perceived as having assumed the role of a
higher executive or administrative authority, to
which all duly authorised executive or
administrative decisions must always be referred
for ratification prior to their implementation.
Otherwise, the authority of the executive or
other public functionaries, conferred on it by the
law and/or the Constitution, would virtually
become meaningless and irrelevant, and be
undermined in the public eye. This would also
cause undue disruptions in the state =s
administrative machinery,@.
AThe administrative decisions shall only fall within the
purview of judicial review and be set aside, where they
are found to be patently arbitrary or capricious,
objectively irrational, or actuated by bias or malice, or
by other ulterior or improper motive@.
[84] It does appear that on the basis both on paper and through
interviews, whilst the Applicant had seemingly better subject
music qualifications than Strauss, he (the Applicant) had less
managerial experience than her. She clearly had far more
relevant managerial experience.
[85] The Applicant=s principal complaint appears to be based on the
fact that he had higher qualifications than Strauss in the field of
music. Indeed, this appeared to be the case. However, it would
appear, on the evidence, that for one to head a library in any
specific department one did not need to have a qualification in
the field of the department concerned. The Director of Libraries,
Ms Rapp gave evidence, which was not gainsayed, that it was
normal practice at UCT that librarians did not have expertise in
the specific field of study related to the libraries they were
heading. She gave examples that the commerce librarian had no
commercial background; the head of the medical library did not
have medicine as a qualification; the architectural librarian was
not an architect; the art librarian was not an artist and the
biology librarian was no biologist.
[86] It would seem the practice at UCT, as alluded to in the preceding
paragraph, likewise obtained at UWC where the Applicant served
from 1989 to 1998. In his CV the Applicant stated that when the
Aenrolment in the Music Department was on the wane it was
decided that the Music Library no longer deserved a full-time
qualified staff member and (the Applicant) was appointed to the
position of Science Faculty Subject Librarian serving the
departments of Maths, Physics, Chemistry, Applied Maths and
Statistics and in addition when there was a staff shortage,
Botany, Zoology, Microbiology and Biochemistry@. The Applicant
acknowledged that he had no qualification in any of these fields,
yet he was appointed to the apparent overall position of
AScience Faculty Subject Librarian@.
[87] It was also noted that the Applicant did not allege that he was
appointed as acting librarian but in the full capacity of librarian
for the said science faculty. I should imagine that the Applicant
fully and genuinely believed that he served satisfactorily, if not
well, when he performed in the capacity of the science faculty
subject librarian aforesaid. Otherwise, if he doubted his
performance in that regard he would have hesitated to include
such appointment in his CV.
[88] His argument that the music library was unique and that the
same practice as in other libraries could not successfully apply to
it, seems to me to be unreasonable and without foundation. I
am unable to comprehend on what empirical basis a music
library could be placed on a different footing in this regard from
other libriries.
[89] A lot was alleged by the Applicant and on his behalf about the
UCT having committed irregularities by not following its own
recruitment and employment policy - during the recruitment and
selection process in respect of the said post. It should be pointed
out, however, that such irregularities, if they did exist, must have
resulted to the non-appointment of the Applicant to the said
post. In my view, any irregularity, procedural or substantive,
committed by the UCT but which had no bearing to the issue of
non-appointment of the Applicant to the said post, would be
irrelevant.
[90] The majority of the witnesses called by the Applicant gave
evidence which was, invariably or occasionally, as the case
might be, either hostile or unfavourable to the Applicant =s case,
as illustrated hereunder.
[91] Gherasim was not impressive as a witness. In the first place,
she was the Applicant=s competitor for the said post. There was
not the slightest doubt, in my mind, that had she been appointed
she would certainly not have labelled the selection committee
and the entire selection process with all names and descriptions
that she did in her testimony. She was simply labouring under a
deep frustration for her own loss and, therefore, fighting her own
cause. Any outcome that would bring about the reversal of the
UCT=s decision to appoint Strauss (or anyone else, for that
matter - including the Applicant) would be a victory for her.
[92] Remarkably, the evidence of Gherasim consisted mainly of
criticism of the selection process but did not include criticism of
the selection committee =s decision of not recommending the
Applicant for appointment. In other words, it seems to me, she
would have had no problem with the selection process if it
favoured her, which would clearly have meant the same fate for
the Applicant. There was nowhere in her evidence where she
submitted that the Applicant was the best qualified and most
suitable for the job.
[93] At one point Gherasim was asked whether she was herself better
qualified than the Applicant. Instead of giving a direct answer,
she replied that she had an honours degree in librarianship and a
degree in music (B Mus). They both had about the same number
of years experience (i.e. about 11 years). This kind of response
tended to suggest that she considered herself as better qualified,
as the Applicant did not have an honours degree but only a junior
degree. This therefore showed that she was only concerned
about the alleged irregularities in the selection process to the
extent only that such irregularities resulted to her not getting
appointed. To that extent, regrettably, her evidence was of no
significance and relevance. Indeed, she was not a credible and
reliable witness.
[94] Walter was part of the selection process, having been a member
of the selection committee. She told the Court that the
Applicant was recommended for the said post. When the
recommendation was not accepted by the rightful authority she
became upset and took it personally as though the decision
negatively impacted on her own integrity. It is hard to
comprehend why she became upset in the light of her knowledge
that the selection committee =s function was only to make a
recommendation and that the final decision lay with the Director,
Ms Rapp. Her reaction was therefore ludicrous and irrational, to
say the least.
[95] This witness did not attempt to compare the Applicant with
Strauss, in terms of their respective suitability or potential to
filling the said post. The selection committee, of which she was
part, had, in terms of her evidence, recommended the Applicant
to the exclusion of two other candidates, who did not include
Strauss. In other words, when the Applicant was recommended,
Strauss had not yet come into the picture. It was notable that
when she had to express an opinion on Strauss =s character and
ability, she commended her. For instance, when she said: AWhat
I know is that she (Strauss) was highly regarded as a manager @
and that she was a Avery competent and intelligent person@.
[96] There was nowhere in Walter =s evidence where she described
the Applicant in a manner near the description she gave of
Strauss as mentioned above.
[97] It was incomprehensible why the Applicant called Tuffin and
Massawe as his witnesses. There was not a single point
favourable to the Applicant which these witnesses testified
about. Instead, they both vigorously supported the UCT =s case
in every respect. As a result, their examination-in-chief was at
times conducted in a manner that bordered cross-examination
and, in contrast, their cross-examination more polite and friendly
as though it was a re-examination of one =s own witness.
However, despite their hostile attitude as such, these two
witnesses remained the Applicant =s witnesses. The effect of
their evidence served only to damage the Applicant =s case than
to support or strengthen it. To the extent that their entire
evidence was at complete variance with the Applicant =s version,
a body of serious material contradictions was created in the
Applicant=s case and which remained indellibly uncured.
[98] The evidence of how Strauss performed in the said post (after
her appointment) would generally be irrelevant and inadmissible
in the present matter, since such performance was an ex post
facto to the issue in dispute. However, the evidence was
admitted because it was adduced not by the Respondent =s
witnesses in support of its case, but by the Applicant =s own
witnesses (namely, Tuffin and Massawe), having been elicited
under cross-examination by the Respondent =s Counsel. Indeed,
that was during the vigorous demolition process of the
Applicant=s case by his own witnesses.
[99] On the other hand, the evidence in support of the UCT =s case
was straightforward, credible, rational and more reliable. The
evidence of the two witnesses, Ms Tilney and Ms Rapp, was not
only corroborative of each other, but was further corroborated by
the Applicant =s two witnesses Tuffin and Massawe in all and
every material respects, and, to a lesser extent, by that of the
other Applicant=s witness, Ms Walter.
[100] The Applicant=s own evidence did not support his allegation that
he was discriminated against on the ground of sex or gender.
He admitted that he had no specific facts to back his allegation
in this regard. He merely alleged sex or gender discrimination
because he had Ano rational explanation @ for his non-
appointment. This was absurd and it bordered on abuse of the
court process.
[101] In my conclusion, the evidence before the Court did not show,
beyond a balance of probabilities, that the UCT, by not appointing the
Applicant and instead appointing Strauss to the said post, thereby
committed either an unfair labour practice or an unfair discrimination,
or violated any of the Applicant=s rights enshrined in the Constitution.
[102] As for the question Awhether an Applicant may enforce a general
right to fair labour practice in terms of Section 23 of the
Constitution, that has not been given effect to in legislation, in
the Labour Court @, I do not find any relevance of this general
question on the specific issues before the Court. A specific
question based on this aspect has been answered. To my mind,
there was no need for the same question to be repeated,
differently framed, in general terms. The Court is not a forum
where parties conduct their research of the law. Incidentally,
however, a reference may be made in this regard to the remark
made by the Court in Simelela and Others v MEC for
Education, Eastern Cape and Another [2001] 22 ILJ 1688
(LC) (per Francis AJ, as he then was) where the Court said:
A.... [an] employee is not precluded from relying
directly on the Constitution to enforce his or her right
not to be subjected to unfair labour practice@.
[103] As I have said already, this question does not seem pertinent to
the case before me. I propose, therefore, not to comment any
further thereon.
[104] On the question of costs, there seems to be nothing to persuade
the Court to deviate from the general and traditional rule that
Acosts follow the result@ and the rule shall, therefore, apply.
[105] In the result, the Applicant=s claim is dismissed with costs.
______________
NDLOVU, AJ
Appearances:
For the Applicant : Adv J de Waal
Instructed by :Cheadle Thompson & Haysom
Cape Town
For the Respondent : Adv. A Oosthuizen SC
Instructed by : Deneys Reitz Inc.,
Cape Town
Date of Judgment : 19 September 2003