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, 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
“qualified” people from designated groups in all occupational categories and
levels, it is important to keep in mind the legislature’s recognition that past
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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)).
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
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
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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.
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
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 non
discrimination 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
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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).
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 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
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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.
• Policy development.
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• 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
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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
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
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
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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 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 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,
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
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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 “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, 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
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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 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 “handson” person. It was also said that
theoretical person, but not an adept “handson” 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 while “the
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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
that all candidates who were 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
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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 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
scoring there was a discussion about the overall impression created by each
candidate. In other words, the numbers were not decisive. This was followed
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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 handson 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
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
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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 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
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
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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.
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
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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
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
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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 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
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
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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 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.
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
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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 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 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.
an experienced person in his fifties.
38. For what it is worth, I am of the view that an N3 Certificate probably does not
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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 non
appointment 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
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
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my mind convincing. Moreover, 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 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 this instance reveals
that at salary level 13 the respondent’s target in respect of Coloured males
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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 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
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
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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.
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
adjudication and the applicant has rendered and continues to render
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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
46.2There is no order as to costs.
______________________________
MURPHY AJ
DATE OF TRIAL : 610 SEPTEMBER 2004
DATE OF JUDGEMENT: 7 MARCH 2005
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 Attorney.
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