IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: C1149/02
In the matter between:
CEASAR DA SILVA ALEXANDRE Applicant
and
THE PROVINCIAL ADMINISTRATION OF THE
WESTERN CAPE DEPARTMENT OF HEALTH Respondent
JUDGEMENT
MURPHY, AJ
1. The applicant, a white male, alleges that he has been unfairly discriminated against and
seeks and order in terms of section 50(2) of the Employment Equity Act 55 of 1998 (“the
EEA”) directing the respondent to place him retrospectively in level, rank and scale to that of
a level 13 employee, commensurate with the position of Director: Engineering and
Technical Support with effect from 1 April 2002. In the alternative he seeks an award of
damages or compensation.
2. The applicant’s claim arises out of his unsuccessful application in late 2001 for appointment
to the post of Director: Engineering and Technical Support (“the post”). He alleges that his
nonappointment to the post amounts to unfair discrimination on the grounds of race, his
application having been turned down in favour of a coloured male.
3. Section 6(1) of the EEA provides that no person may discriminate directly or indirectly,
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against an employee, in any employment policy or practice, on one or more grounds,
including race. Section 6(2) of the EEA provides that it is not unfair discrimination to take
affirmative action measures consistent with the purpose of the EEA. Section 15 of the EEA
defines affirmative action measures as measures designed to ensure that suitably qualified
people from designated groups have equal employment opportunities and are equitably
represented in all occupational categories and levels in the workplace of a designated
employer. Section 15(2) permits measures designed to further diversity in the work place
and measures to ensure the equitable representation of suitably qualified people from
designated groups in all occupational categories and levels in the workplace by means of
preferential treatment and numerical goals, but not quotas. (Section 15(2)(d) and section
15(3)). “Designated groups” is defined to mean black people, women and people with
disabilities. “Black people” is defined in the Act as a generic term which means Africans,
Coloureds and Indians. The applicant being a White male is thus not a member of any
designated group.
4. Section 2 of the EEA defines its purpose as the achievement of equity in the workplace by
promoting equal opportunity and fair treatment in employment through the elimination of
unfair discrimination and implementing affirmative action measures to redress the
disadvantages in employment experience by designated groups, in order to ensure their
equitable representation in all occupational categories and levels in the workplace.
5. Insofar as the EEA aims at achieving equitable representation of suitably “qualified” people
from designated groups in all occupational categories and levels, it is important to keep in
from designated groups in all occupational categories and levels, it is important to keep in
mind the legislature’s recognition that past disadvantageous treatment of the designated
groups under Apartheid denied many able people access to educational opportunities and
formal qualifications. For the purposes of the EEA, therefore, a person may be suitably
qualified for a job as a result of any one, or any combination of that persons formal
qualifications, prior learning, relevant experience or capacity to acquire, within a reasonable
time, the ability to do the job. Employers determining suitability are thus legislatively
mandated to review all these factors and to accord due weight to potential capacity (see
section 20(3), (4) and (5)).
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6. The equality and nondiscrimination aimed at by the EEA is consonant with our
Constitution’s vision of a concept of equality, which in the words of Moseneke J in Minister
of Finance and Another v van Heerden [2004] 12 BLLR 1181 (CC) @1193D includes “a
credible and abiding process of reparation for past exclusion, dispossession and indignity
within the discipline of our constitutional framework”. The substantive notion of equality at
the heart of our constitutional value system perceives restitutionary or remedial action as a
central component of the enshrined protection and obliges courts to subject affirmative
action measures to a lower level of scrutiny. Such measures are not required to be strictly
necessary to achieve a compelling policy objective. It is enough that they be a rational
means of advancing the legitimate aims of affirmative action. Judicial restraint and
deference is called for in recognition of the need for state action to redress past social
injustices. This line of thinking was expressed most eloquently by Sachs J in the van
Heerden case @1231D1232D as follows:
It also means that where disadvantage was imposed because of race, then race may appropriately be taken into
account in dealing with such disadvantage…It accordingly makes it clear that properly designed raceconscious and
genderconscious measures are not automatically suspect, and certainly not presumptively unfair...
Remedial action by its nature has to take specific account of race, gender and the other factors which have been used
to inhibit people from enjoying their rights. In pursuance of a powerful governmental purpose it inevitably disturbs,
rather than freezes, the status quo. It destabilises the existing state of affairs, often to the disadvantage of those who
belong to the classes of society that have benefited from past discrimination.
Yet, burdensome though the process is for some, it needs to be remembered that the system of statesponsored racial
domination not only imposed injustice and indignity by those oppressed by it, it tainted the whole of society and
dishonoured those who benefited from it. Correcting the resultant injustices, though potentially disconcerting for those
who might be dislodged from the established expectations and relative comfort of builtin advantage, is integral to
restoring dignity to our country as a whole. For as long as the huge disparities created by past discrimination exist, the
constitutional vision of a nonracial and a nonsexist society which reflects and celebrates our diversity in all ways, can
never be achieved. Thus, though some members of the advantaged group may be called upon to bear a larger portion
of the burden of transformation than others, they, like all other members of society, benefit from the stability, social
harmony and restoration of national dignity that the achievement of equality brings.
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7. Although the present matter has been pleaded, constructed and argued within the
parameters of the EEA, which has at its heart this conception of equality, an appreciation of
the substantive and restitutionary notion mandated by the Constitution has been singularly
absent in the parties’ presentation of their cases. The applicant’s broad claim that he is
entitled to equal treatment which is colour blind fails to get beyond a conception of formal
equality and nondiscrimination which requires identical treatment. The respondent, on the
other hand, has met the claim within the applicant’s paradigm with a defence that the
preferred candidate, a member of a designated group, was chosen on merit and insofar as
equitable representation on the basis of race was a consideration, it was merely of
secondary importance. The respondent’s affirmative action defence therefore strikes me as
somewhat muted. Obviously, the respondent must plead its case on its own interpretation of
the facts and is entitled to a decision on the merits of its arguments supported by the
evidence. Nevertheless, one cannot avoid the impression that it too regards affirmative
action measures as a suspect category and in anticipation of strict judicial scrutiny opted to
build its case primarily on an appointment based on merit and an assertion of remedial
equality less confident than one might otherwise have expected from an organ of state
charged with setting the pace.
8. As far as onus is concerned, it is incumbent on the applicant to show that he was
discriminated against on the basis of his race. Once such is established, the respondent
bears the onus of establishing that the discrimination was fair (see section 11 of the EEA).
bears the onus of establishing that the discrimination was fair (see section 11 of the EEA).
9. The thrust of the applicant’s case is that by virtue of his experience and qualifications he
was the most suitably qualified and skilled candidate for the post of Director: Engineering
and Technical Support and was so far ahead of the successful candidate, Mathys, that the
only reasonable inference to be drawn was that Mathys was appointed solely on the basis
of his race and membership of a designated group.
10. In its response to the applicant’s statement of case, the respondent, as already explained,
based its defence on Mathys’s merit as a candidate. Mathys, it was contended, was
selected as the most suitable candidate by the selection panel based on his general profile
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and his competencies. The panel was impressed by his confidence, professionalism,
strategic knowledge and relevant experience in and exposure to all the critical post
requirements. In spite of the applicant’s extensive experience, qualifications and experience
acting in the post, he scored less than Mathys in the interview. To the extent that affirmative
action considerations played any role, the selection panel had regard to the numerical
targets contained in the respondent’s employment equity plan in terms of which both white
and coloured males were adequately represented, but considered the appointment of a
coloured male as preferable to that of a white male, because white males were significantly
over represented, whereas coloured males were not.
11. The post in contention was advertised externally in the Sunday Times on 18 November
2001 and internally through the department’s registry, internet and internal mail system on
13 November 2001. With one important difference, the advertisements are identical. The
advertisement states at the outset that the department was seeking a “dynamic, motivated
and handson manager with the ability to work through engineering and technical
challenges in considerable detail”. The post is identified as being a senior managerial
position with the responsibility for the provision of the following services:
• Hospital engineering services.
• Clinical engineering services.
• Laundry services.
• Orthotic and Prosthetic services.
• Occupational and equipment safety services.
• Laboratory and xray imaging services.
Additional duties included:
• Labour relations.
• Financial and personnel management.
• Technical investigations and recommendations.
• Answering ministerial enquiries.
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• Policy development.
• Strategic and infrastructure planning.
12. Applications were invited from persons in possession of an appropriate degree in
engineering and the built environment, or a high level technical qualification or managerial
qualification, plus extensive experience in hospital engineering or a closely related technical
field. The specific competencies sought included:
• Excellent written and verbal communication abilities.
• An engineer’s certificate of competency or other occupational health and safety
qualification.
• A high degree of computer literacy.
• Knowledge of the work’s function.
• Clinical engineering experience.
• Experience of project management.
13. The important difference between the internal and external advertisement is that the internal
advertisement was introduced by a statement affirming that the department’s employment
equity imperatives. Thus it stated:
In line with the employment equity plan of the Department of Health it is our intention with this advertisement to
achieve equity in the workplace by promoting equal opportunities and fair treatment in employment through the
elimination of unfair discrimination.
Why this policy prefix was not included in the external advertisement in the Sunday Times was not
adequately explained in evidence. Most likely it can be attributed to an administrative oversight.
14. The applicant is a man of considerable learning and experience in his chosen fields of
engineering and project management. He commenced service with the respondent in 1989
when he was appointed as an engineer at the Western Cape Regional Hospital’s branch.
He was promoted to Senior Engineer in September 1990, Principal Engineer in July 1991
and thereafter to Deputy Chief Engineer in June 1993. In 1995 he was appointed Chief
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Engineer: Hospital Engineering Services Western Cape, which position he still occupies. As
such he is head of the hospital Engineering Department, situate within the Directorate of
Engineering and Technical Support Services. His position is a senior one, and includes
oversight of all the functions of general, clinical and medical engineering, the procuring,
maintaining and installing of equipment and the maintenance of hospital repair and
renovation work. He has responsibility for a R60 million budget to supply all services to
hospitals in the region, other than in the academic hospitals and has 150 staff directly under
his management in the business units accountable to him. His job is graded at 11/12. He
holds the degrees, BSc Engineering, M.Tech BA and a variety of certificates and diplomas.
He is also a parttime lecturer in project management at the Cape Technikon.
15. During 1995 the applicant played a central role in the team tasked, as part of the process of
restructuring, to come up with a new structure for the Provincial Department of Health. He
was thus instrumental in the proposal, organisation and establishment of the Directorate:
Engineering and Technical Support within the department. He initially did not apply for the
post of director within the Directorate, but served on several occasions as the Acting
Director. He testified that he believed he was appointed as Acting Director because he had
been instrumental in the establishment of the directorate and was the only qualified person
in the province with the requisite experience, skills and qualifications to fulfil the tasks and
functions associated with the post. On 1 November 2001 the applicant was again appointed
as Acting Director by means of a letter addressed to him by Mr A Cunninghame, Chief
Director: Professional Support Services. He was appointed “for the period until the post of
Director: Professional Support Services. He was appointed “for the period until the post of
Director is permanently filled or until further notice”. The letter includes the following
cautionary remark:
Please note that your appointment in this acting capacity may not be regarded as an entitlement, or a privileged
position, in the event of your making application for the position of Director.
16. When the post was advertised during November 2001, the applicant decided to apply for it
with the encouragement and support of Mr Cunninghame. From his vantage point, he
believed that appointment to the position required a degree in engineering, or in a related
field such as architecture and preferably a master’s degree in business or public
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management. He thought the advertisement requirement of a “high level technical
qualification or managerial qualification” would not be enough. In his view it was necessary
for the candidate to have substantial experience and degree level qualifications, both of
which he had. He also felt he met all the criteria for the post. He has been exposed to the
various subdirectorates of hospital engineering, was possessed of superior writing and
presentation skills and holds a certificate of engineering competency, which he regarded as
absolutely essential. Although he conceded not having a high level of computer skills, he
saw himself as having the basics and the requisite standard of computer literacy. From his
evidence, it also appeared that he had extensive knowledge of the work’ functions, the
administrative tasks, institutional relationships, financial budgetary issues and engineering
tasks associated with the job. As he saw it, he was the only person with the skills,
experience and qualifications in the department capable of taking up the post. In addition,
he was in receipt of letters of commendation, had been categorised as “preferentially
promotable” and had scored 89% on his most recent performance appraisal. Taking all this
into account, he concluded that he was the best person for the job.
17. The applicant was short listed for an interview and was interviewed along with eight other
candidates on 18 March 2002. As previously stated, he was not successful and the post
was given to Mr ED Mathys, a Coloured male who prior to his appointment had held the
position of Deputy Director: Technical Services in the department.
18. By all accounts the interview was not a happy experience for the applicant. Mr
Cunninghame in his testimony described the applicant’s performance in the interview as
Cunninghame in his testimony described the applicant’s performance in the interview as
“embarrassing”. Judging from some of his comments and the obvious emotion he displayed
while giving testimony, the applicant remains deeply aggrieved by what he perceived to be
unfair treatment during the interview. His complaint, in general terms, was that the interview
of 30mins duration was far too short, that he was not given enough time to elaborate on his
skills, experience and valuable contribution and that he was cut short when he tried to show
the panel the 35 “books” he has written on project management and related subjects, which
he had brought along to the interview. (In passing it should be noted that the “books” to
which the applicant claims authorship have not been published in the conventional sense,
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but are more in the form of lecture notes for dissemination to his students.) The applicant
was also aggrieved that he was not taken through his Curriculum Vitae and was restricted to
answering questions which the members of the interview panel had previously agreed upon
amongst themselves. At the end of the interview he felt totally dissatisfied to the point that
he concluded the interview with an impassioned plea not to be held hostage to affirmative
action and an expression of disappointment that he had not been allowed to do himself
justice in the way he saw fit. He chose also remind the panel of his special skills and
interests in the area of project management which he regarded as the most important
criterion and which formed the topic of the written lecture notes that he had brought along to
the interview.
19. Later in his testimony the applicant was less than complimentary about Mathys’s skills,
experience and qualifications. Basically, he considered Mathys as significantly less qualified
and experienced than him especially in project management. I intend to examine Mathys’s
suitability for the job in more detail later, suffice it at this point to note that the applicant’s
attitude was that Mathys did not deserve his appointment on merit.
20. In cross examination the applicant was pressed on a number of issues regarding the
requirements for the job and the suitability of the other candidates in comparison to him. It is
unnecessary to traverse this evidence in any detail. In summary, the applicant submitted
that despite the cautionary remark in the letter appointing him as Acting Director he did
indeed entertain an expectation of being appointed on the basis of Cunninghame’s
encouragement and his categorisation as preferentially promotable. He furthermore made it
encouragement and his categorisation as preferentially promotable. He furthermore made it
quite plain that he considered all the other candidates either as his subordinates or inferior.
Nonetheless, he was obliged to concede that his experience was restricted to working in the
environment of smaller hospitals, that he lacked technical expertise in clinical engineering
(although he did have experience in managing clinical engineering) and while basically
conversant with computers was not expert in the systems applicable throughout the hospital
network. It was put to him that he was a good theoretical person, but not an adept “hands
on” person. It was also said that he had an authoritarian negotiating style, to which he
admitted at times being prescriptive, saying he had little time for participatory management
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while “the ship is sinking”. Finally, it was put to him that during the interview he was not
focused, did not answer the questions directly, gave a speech and had a tendency to lecture
the panel. To this he replied that he had been anxious to explain himself and had sensed
that the panel was not interested.
21. The respondent called three witnesses, all of whom were members of the selection panel:
Mr A R Cunninghame, Chief Director: Professional Support Services; Dr Phillip Carter, Chief
Director at Tygerberg and Mrs B Arries, Chief Director Human Resources Management of
the Western Cape Department of Health. All three gave testimony relevant to the short
listing, interview and selection processes.
22. There were 34 applications for the advertised post, 23 from internal candidates and 11
external. The task of drawing up an initial short list fell to Mr Cunninghame. He went through
each application and assessed the candidate against the job description, the competencies
and duties as spelt out in the advertisement. He set up a spreadsheet reflecting the
qualifications of each candidate and scored them against the key responsibility areas of the
post. He based the scores entirely on the curriculum vitae and attempted to be as objective
as possible. In terms of existing policy at respondent, at least 50% of the members of the
selection panel are required to be involved in drawing up the short list which also has to be
accepted by the head of department and the executive authority. Accordingly, Cunninghame
submitted his spreadsheet to Prof Househam (the Chairman of the panel) and Ms Arries,
who then met with him, interrogated the shortlist and proposed changes to his
recommendations. During this process, Cunninghame insisted that all candidates who were
employed within the directorate should have the benefit of an interview. The final shortlist
employed within the directorate should have the benefit of an interview. The final shortlist
was then extended to include 9 candidates rather than the initial 5. The short list was made
up of five White males, two White females, one Coloured male and one Black male who
was a Zambian citizen.
23. The interview panel consisting of Cunninghame, Househam, Carter and Arries met and
drew up a list of eight questions for presentation to each candidate. The respondent’s policy
requires that exactly the same questions be put to each candidate. Each panel member was
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allocated the same two questions to ask of each candidate. The questions were of a general
nature aimed at providing the candidate an opportunity to elaborate on his/her curriculum
vitae to test his/her judgement on managerial and financial issues and to gain insight into
their vision and evaluation of policy concerns facing the public service, such as the idea of
public/private partnerships, preferential procurement and employment equity. All three
witnesses confirmed that all eight questions were put to each candidate, and that each
interview lasted approximately 30 minutes. One of the applicant’s grievances was that he
was not given enough time and was asked only six questions. Although not too much turns
on the matter I accept the respondent’s version on this. The three panellists who testified
struck me as ethical and considerate professionals and it is unlikely that they would have
denied the applicant an opportunity to speak to each question. After all, the questions had
been reduced to writing and distributed to each panellist.
24. Each panellist had a score sheet and during the interview allocated scores for managerial
ability, vision and leadership, appropriate experience and knowledge, communication and
interpersonal skills and service delivery. The score of each panellist under each head was
aggregated and a total score was recorded for each candidate. The three panellists
confirmed that after scoring there was a discussion about the overall impression created by
each candidate. In other words, the numbers were not decisive. This was followed by a
discussion about employment equity and whether a certain appointment would advance the
respondent’s employment equity policy.
25. On an aggregated basis, Mathys scored marginally better than the applicant. However, the
applicant marginally outscored Mathys on managerial ability, vision and leadership and
appropriate experience and knowledge. Mathys fared better than the applicant in
communication and interpersonal skills, as well as in service delivery.
26. An overview of the panellist’s evidence reveals that Mathys was selected as the preferred
candidate for the following main reasons. Although Mathys was not a certificated engineer,
he did have substantial experience and handson technical skills in clinical engineering and
occupational health and safety. He also had far superior computer skills and better hands
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on experience within the larger hospitals. Cunninghame, in particular, emphasised the
importance of such knowhow to the job. The building management section of the hospitals
in particular have computerised monitoring of airconditioning, fire security, electricity, access
and other operational functions. The system automatically generates information on
maintenance and heavy engineering and involves sophisticated, complex control software
and hardware. In the various technical positions he had held in the hospital system, Mathys
had been able to acquire a sophisticated level of computer literacy, and had been
responsible for the design and maintenance of the information systems and all data
processing in the hospital engineering department. Against this it was felt that the applicant
had not expressed much interest in acquiring computer skills as one might have expected
from a Chief Engineer. From the panel’s point of view, all technical managers needed to be
conversant with computers as a communication an analytical tool. The applicant’s computer
skills were limited to a working knowledge of a few basic software applications such as
power point and word processing. By contrast Mathys had programming skills and hardware
knowledge. He also had extensive clinical engineering skills and some relatively high level
managerial experience in the larger academic hospitals.
27. With regard to the applicant’s performance, it is clear that the panel was equally impressed
with his skills, experience and qualifications. The applicant was seen as a man who could
get the job done. The panellists were, however, less impressed by his communication and
interpersonal skills on the basis of his performance during the interview. His tendency to
lecture and make speeches, to which he repeatedly succumbed while giving evidence,
appears to have sealed his fate. From my observations of the applicant in the witness box
he is evidently a learned, cultured and dynamic man, passionate about his pet subject,
programme management. His proclivity to venture forth at length and in detail undoubtedly
will serve him well in his capacity as a lecturer at the technikon. The same quality, however,
could legitimately be seen as less valuable in a technical manager. The applicant also
displayed a measure of emotional volatility. One naturally has sympathy with his sense of
grievance, but under pressure this tended to transform into somewhat intemperate and
dismissive observations about the qualities of others. Reading between the lines of the
panellist’s evidence, it was this attribute, or shortcoming in interpersonal skills, which
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ultimately disqualified the applicant. As previously stated, Mr Cunninghame with some
discomfort testified that he was taken aback by the applicant’s performance during the
interview and was embarrassed by his lecturing of the panel, saying that the interview went
down badly, especially the applicant’s long explanation and passionate plea that
employment equity should not be applied. During his testimony the applicant made no
bones about his distaste for the policy of employment equity, complaining that “White males
have no future”. Cunninghame also testified that he had in the past appointed the applicant
to the employment equity task team of the provincial government, but that the applicant had
not attended any meetings beyond the first one because of his “firm views” and “intolerance
towards people with a different view point”.
28. The motivation which eventually served before the provincial cabinet for the appointment of
Mathys captures the panel’s preference in the following succinct terms.
During the interview Mr Mathys impressed the selection panel with his confidence, professionalism, strategic
knowledge and relevant experience in/exposure to all the critical post requirements. It was also apparent from his
responses to questions that he has excellent managerial skills.
After indepth discussions the selection panel unanimously agreed that Mr Mathys meets all the critical post
requirements as advertised and that he provided more indepth answers than the other candidates. In addition, the
panel in its entirety allocated the highest points to him and it was unanimously agreed that his general profile and
competencies make him the most suitable candidate for the post.
The promotion of Mr ED Mathys to this post will not promote employment equity. The panel, however, felt that due a
shortage of appropriately trained and experienced Blacks in the engineering field the deviation by nominating a
Coloured male will not have such an impact on the numerical targets than nominating a White male.
29. The motivation goes on to explain why the other candidates were not appointed, and in
particular made the point that the appointment of the Black male who was a Zambian citizen
would have indeed promoted employment equity, but it became clear during the interview
that he did not possess adequate knowledge and experience in the duties attached to the
post.
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30. Ms Arries testified that the selection in this instance was conducted in accordance with the
policy framework contained in Exhibit F, a document titled “Project T2000: Selection and
Appointment of Personnel” dated 12 October 2000. The policy document confirms that at
least 50% of the selection panel were required to be involved in the shortlisting of
candidates and that the applications of persons who did not meet the threshold
requirements normally need not be considered further. Threshold requirements are defined
as being those requirements for the position as stated in the advertisement for the post.
31. It is clear also from Exhibit F that the procedures which the panel followed in regard to the
interviews in this case were in the main sanctioned in terms of the policy. Thus there was a
duty on the panel to compile a questionnaire directed towards testing the candidates’ skills
and knowledge of the management level competencies and key performance areas. The
panel was obliged to expose all the candidates to the same questions, although follow up
questions are allowed depending on responses. Of particular importance was the panel’s
duty to probe the projected potential of candidates whose appointment would enhance
representativeness. The policy directive regarding the ultimate decision is expressed in the
following terms:
The decision concerning the most suitable candidate to be recommended for appointment/promotion/transfer to the
post must be based on merit as well as the employment equity targets of the department. However, “potential” may be
considered by the selection panel as one of the facets in their horizontal comparison of candidates, provided that such
potential is assessed to be realisable within a reasonable time frame as determined by the panel, with reference to the
position, exigencies and needs of the position and the employer. The candidate who scored the highest points in the
selection process may thus be passed over and a candidate with a relative lower score may be regarded as the most
suitable candidate in all the circumstances.
32. As already stated exhibit “F” is the policy document which governed the selection process
involving the applicant and hence the employment equity considerations were to be
approached in accordance with the prescriptions of that document. However, subsequently
the respondent has amended its policy and has adopted an approach to employment equity
that is less flexible than that provided for in exhibit “F”. This document (exhibit “A” page 60),
titled “Recruitment and Selection Policy Department of Health Western Cape Provincial
Health Administration”, according to Ms Arries, became effective on 15 May 2002. Clause
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13.5 provides as follows:
Once the selection procedure has been completed, consideration may be given to the representivity profile of the
organisation/component. What this means is that while numerical targets have not been reached, affirmative action
measures may be made applicable to the selection process in accordance with the requirements of the applicable
affirmative action programme as stated in the departmental and regional employment equity plan as well as those
developed at institutional level. In the event that the numerical targets in respect of representivity has been reached, or
where no candidates from the designated group have applied or have been short listed, the candidate shall be
assessed exclusively in terms of the core competencies/functional terrain of the job.
33. The difference between the two policies is that the earlier policy would allow consideration
of employment equity issues, even where the numerical targets in respect of representivity
have been reached. Whereas under the new policy it would be impermissible to do so and
decisions would have to be based exclusively on merit. One doubts whether such a policy
advances the spirit and purpose of employment equity and the notion of substantive equality
as endorsed by our legislative and constitutional framework. However, because the earlier
policy applied in this matter, there is no need to adjudge the implications of the new policy
falling short of the constitutional and legislative framework.
34. The applicant’s contention that he was unfairly discriminated against on the basis of race is
basically founded on three pillars. The first is that he was obviously the most suitably
qualified candidate for the position and was informed as much. Secondly, the successful
candidate, Mathys, did not meet the threshold criteria of the job as advertised. Thirdly,
Mathys was not in fact appointed on merit, but on the basis of his race.
35. For the purpose of argument, I am prepared to accept that Cunninghame at some stage
may very well have told the applicant that he was the most suitably qualified person for the
job and on the basis of qualifications and experience he was a serious competitor. However,
such an understanding has to be weighed against the qualification in the letter appointing
him as Acting Director that he should have no expectation of appointment to the position.
Nor should his categorisation as “preferentially promotable” carry much weight. As
Cunninghame testified, the concept of preferentially promotable has lost relevance since
1994. Under the previous government the public service had a merit system which basically
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aimed at protecting people in service. If a person is categorised as preferentially promotable
then an outside applicant contending for the same post would have no chance against a
person who enjoyed the status of “preferentially promotable”. Since the establishment of the
new democratic government, however, and the opening up of the public service, the
concept of preferentially promotable has been discarded as it would serve to entrench
formerly advantaged civil servants at the expense of South African citizens previously
excluded and would totally undermine the policy objective of demographic representivity.
Moreover, and perhaps most importantly, the applicant’s claim to have been the best man
for the job is predicated on too narrow an understanding of the concept of “suitably
qualified”. The applicant’s assumption that his qualifications and experience ought to have
been sufficient to secure him the job assumes a notion of suitably qualified that is not
consistent with the policy in Exhibit F or subsections 20(3) and (4) of the EEA which all
clearly recognise potential or the “capacity to acquire, within a reasonable time, the ability to
do the job”. In other words, the panel would have been entirely within its rights, had it done
so, to have weighted Mr Mathys’s capacity and potential to do the job as more important
than the applicant’s qualifications. Moreover, there is nothing in clause 13.5 of the now
applicable policy which would prevent it from doing likewise in the future.
36. The second finding which the applicant urges me to make, in order to draw an inference of
unfair discrimination based on race, is that when one has regard to the fact that Mathys did
not meet the threshold requirements of the advertisement, the conclusion is inescapable
not meet the threshold requirements of the advertisement, the conclusion is inescapable
that the overriding consideration was one race and was not based rationally on the
qualifications of Mr Mathys.
37. There was much debate in evidence and argument about the exact level of Mathys’s
qualifications. I tend to agree with the applicant that Mr Mathys was only in possession of an
N3 Certificate and three N5 credits at the time of the interview. The debate was about
whether such entitled him to be described in terms of the advert as a person in possession
of a “high level technical qualification”. From the evidence presented, it is clear that an N3
Certificate is equivalent to a Senior Certificate and that an N5 would be equivalent to a
tertiary qualification. Mr Cunninghame insisted in his testimony that Mathys’s qualifications
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could be described as a high level technical qualification. According to him, a high level
qualification as envisaged in the advertisement would depend on the age and experience of
the candidate. For a candidate in his thirties, a T4 would be the minimum, however, a NTC5
would suffice for an experienced person in his fifties.
38. For what it is worth, I am of the view that an N3 Certificate probably does not suffice as a
high level technical qualification. Accordingly, there may be some merit in the contention
that Mathys did not meet the threshold requirements. But, to my mind, it does not follow that
any irregularity committed by the respondent in allowing him to be interviewed is of such a
nature to permit me to draw an inference that the applicant has been discriminated against
on prohibited grounds. Or that any such irregularity in granting Mathys an interview is
sufficient to afford the applicant a remedy under the EEA. I caution to add that I make no
finding that such an irregularity did in fact occur, particularly in view of the ambiguous terms
in which the policy deals with threshold requirements. Exhibit “F” provides that threshold
requirements for positions are those identified in the advertisement. It goes on to provide
that the applications of persons who do not meet the threshold requirements need not be
considered further, but makes allowance for exceptional cases for persons lacking
qualifications who are employed by the public service, permitting condonation provided the
person undertakes further education. I am not persuaded that the policy obliges selection
panels to exclude entirely persons who do not meet the threshold requirements, although Dr
Carter in particular testified that interviews usually proceed on the basis that the threshold
requirements have been met. Whatever the case, it does not follow that an irregular
interview of one candidate means that the ultimate nonappointment of any of the others
amounts to a form of unjustifiable racial discrimination, or that such of itself justifies any
such inference. Some case could perhaps be made for an alleged unfair labour practice,
based on an unsupportable decision to shortlist an unqualified candidate, but that is not the
cause of action here.
39. The third leg of the applicant’s argument is that Mathys was not appointed on merit because
he did not have the necessary skills and experience to be appointed to the post.
Cunninghame’s evidence on Mathys’s abilities was to my mind convincing. Moreover,
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Mathys has proven to be a great success in the job and this evidence in particular remains
unchallenged. Although Mathys certainly lacks formal qualifications, he has significant
technical experience in the hospital system. He also has played a role in the management
of the Engineering Department of Groote Schuur Hospital and at Red Cross Hospital served
as Head of Clinical Engineering. The applicant by contrast has not worked at any of the
major academic hospitals. While it is correct that a professional engineer such as the
applicant would have advanced design skills based on a high level of academic knowledge,
an engineering technician of the order of Mr Mathys would have significant practical skills
and would have played a direct role in managing personnel and finances, thus producing
observable or measurable results. Cunninghame also testified that at both Groote Schuur
and Red Cross Mathys has been involved in a number of projects which had been well
planned and executed. Since his appointment, Mathys has inherited the hospital renewal
project and has excelled as a project manager operating with a R4 billion project budget to
upgrade the provinces hospital services. Moreover, for the reasons elaborated earlier, the
panel was justified in attaching weight to Mathys’s far superior computer knowledge and
better communication and interpersonal skills. In the premises, I am satisfied that Mathys
was indeed appointed on merit.
40. That said, I am also satisfied that a racial consideration was indeed brought to bear in the
appointment process, as is evident in the motivation presented to the provincial cabinet.
That racial motivation was essentially to the effect that the appointment of a Coloured male
would have a less negative impact on the numerical targets aiming at equitable
representation of the designated groups. The documentation related to the appointment in
representation of the designated groups. The documentation related to the appointment in
this instance reveals that at salary level 13 the respondent’s target in respect of Coloured
males was 26.9% and in respect of White males was 10.3% of the staff complement. The
factual position was that 32% of the posts were occupied by Coloured males and 25% by
white males. Thus the conclusion that the appointment of Mathys would not advance the
targets is in some sense correct. However, the figures show that in the White male category
the target was significantly exceeded, whereas the same was not the case in respect of
Coloured males. Accordingly, the conclusion that the appointment of a Coloured male would
have a less detrimental effect on targets was also correct. The question then is whether
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such was a legitimate consideration or whether it amounted to a form of unjustifiable racial
discrimination entitling the applicant to the relief he seeks.
41. In my opinion the panel’s reliance on this secondary consideration was entirely legitimate
and did not amount to racial discrimination. Such reliance was entirely consistent with taking
affirmative action measures consistent with the purpose of the EEA and thus in accordance
with section 6(2)(a) of the EEA which provides that it is not unfair discrimination to do so.
Section 6(2)(a) of the EEA, like section 9(2) of the Constitution, overtly acknowledges that
substantive equality requires measures to be enacted to make up for inequalities of the
past, including the denial of opportunity to persons in designated groups, like Mathys, who
have been unable to obtain formal qualifications. Having reached the conclusion that
Mathys was more meritorious than the applicant, it was legitimate for the panel to bolster its
decision by taking account of the fact that the appointment would achieve a more preferable
affirmative action outcome. Even had the applicant scored better than Mathys, it would have
been permissible under the then existing policy contained in Exhibit “F” to have advanced
the aims of affirmative action by attaching greater weight to Mathys’s potential. This would
be so under the respondent’s previous policy even though the targets had been reached in
respect of Coloured males and White males. As already said, this may be debatable under
the now applicable clause 13.5.
42. The point also deserves emphasis that targets are indeed targets and not quotas. Under our
law of discrimination sight must not be lost of the overall purpose of the EEA which imposes
a duty on employers to implement affirmative action measures to redress the disadvantages
in employment experienced by designated groups in order to ensure more equitable
representation in all occupational categories and levels in the work force. Regardless of
whether Mr Mathys’s race was a primary or secondary consideration, his appointment in
some measure redresses the disadvantage he no doubt experienced in the employment
context as a result of his having been classified as Coloured under the previous
dispensation. In short, insofar as any racial consideration operated to affirm Mathys’s
appointment, such did not amount to unfair discrimination within the contemplation of
section 6 of the EEA.
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43. To sum up I am satisfied that Mathys was indeed appointed on merit and to the extent that
any racial consideration played a part it was of a secondary nature and justified within the
overall scheme and context of section 6 of the EEA. In the premises, the application must
be dismissed.
44. Normally, in an instance such as this costs should follow success in the suit. Even were I to
make such an award here, wasted costs were occasioned by a postponement at the behest
of the respondent during the course of the trial entitling the applicant to at least some of his
costs. However, this is an occasion in which I am inclined to exercise my discretion not to
make a costs award against either party. The issues raised were clearly deserving of
adjudication and the applicant has rendered and continues to render exemplary service to
the respondent. The dictates of equity are against a costs award.
45. Accordingly I make the following orders:
46. 1 The application is dismissed
46.2 There is no order as to costs.
______________________________
MURPHY AJ
DATE OF TRIAL : 610 SEPTEMBER 2004
DATE OF JUDGEMENT:
APPLICANT’S LEGAL REPRESENTATIVES: Adv T Moller instructed by Jan S de Villiers
attorneys.
RESPONDENT’S LEGAL REPRESENTATIVES: Adv M Solomon instructed by the State
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Attorney.
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