IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN

Case Number: DA 18/2023
In the matter between:
MOSES KOTANE INSTITUTE Appellant
and
ZENZELE MZIMELE First Respondent
THANDEKA ELLENSON Second Respondent
Heard: 24 March 2026
Delivered: 26 May 2026
Coram: Molahlehi JP, Mahalelo ADJP, Tokota AJA
Summary: Appeal -order and judgment of the Labour Court.
Discrimination: A male applicant for the post of Chief Financial Officer was
excluded based on gender. The appellant introduced the requirements for a female
candidate and a geographic limitation after the interview. The successful candidate
does not satisfy the qualifications set out in the advert. The appellant contends that
the introduction of affirmative action was intended to meet the requirements of the
EEA. Discrimination: representivity was introduced only after the interview.
Onus: The onus is on the employer to show discrimination was rational, not unfair or
justified under section 11(1) (b) of the EEA.
1. Reportable: Yes
2. Of interest to other Judges:
Yes
26/05/26
Signature Date

2

Evidence: Tax returns issued by SARS are admissible as evidence of historical
income, but are not sufficient on their own to prove damages.
Quantum of damages: The salary of the successful candidate as a comparator
alone is not sufficient to prove the quantum of patrimonial loss.

JUDGMENT

MOLAHLEHI JP,
Introduction
[1] This is an appeal from the Labour Court, with the necessary leave, in which it
was found that the appellant, Moses Kotane Institute (Institute), had unfairly
discriminated against the first respondent, Mr Mzimele, 1 in a recruitment process for
a five‑year Chief Financial Officer (CFO) position based on his gender. The appeal
is also against the order consequent upon that finding, which required the appellant
to pay damages of R4,523,921. Accordingly, the appellant seeks an order that the
appeal be upheld with costs and that the order of the Labour Court be set aside and
replaced with an order dismissing the first respondent’s claim.
[2] The appeal lapsed when the record was filed 52 days late. Accordingly, the
appellant also seeks reinstatement of the appeal, together with applications for
condonation for both the late filing of the notice of appeal and the late delivery of the
record. The respondent opposes the appeal and all related applications.
[3] The appellant, Moses Kotane Institute, is a non-profit company registered in
terms of the Companies Act, 2 and a provincial public entity in KwaZulu-Natal
Province, as scheduled by the Minister of Finance, and conducts its business as an
educational Institute.
[4] The first and second respondents, Mr Mzimele and Ms Ellenson , were
candidates for the Chief Financial Officer position, which the Institute advertised in

1 In some documents on the record the surname is spelt “Mzimela. ”
2 Act 71 of 2008.

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June 2014. Mr Mzimele is a chartered accountant, a registered auditor, and a
certified fraud examiner. At some stage, he was employed on a fixed- term contract
by the Institute.
Background
[5] The dispute arises from the Institute’s recruitment process for a five -year
Chief Financial Officer position, which required a postgraduate accounting degree,
specifically a BCompt Honours; completion of articles of clerkship towards Chartered
Accountant registration; and eight years’ accounting or financial management
experience, including five years at a senior management level. Both parties agree
that Mr Mzimel e who applied for the post, met all the stipulated educational and
experience requirements, scored the highest in the interview process, and was
ranked first by the selection panel. They also agree that the second- ranked
candidate, a woman from Limpopo, met the educational requirements, and that the
eventual appointee, the second respondent, Ms Thandeka Ellenson, ranked third
and did not meet any of the educational requirements set out in the advertisement,
as she lacked a postgraduate accounting qualification, had not completed articles,
and was not a chartered accountant.
[6] It is common cause that at the time of the appointment, the Institute had no
employment equity plan or policy in place. According to the Institute, the selection
panel and its executives were under pressure from the provincial government (its
shareholder) to improve gender representa tivity on its all‑ male three‑ person
executive, and for that reason, they decided to appoint a woman to the CFO position.
Mr Mzimele confirms this pressure and the existence of a deliberate decision to
appoint a woman, but emphasises that this led to his exclusion solely because he is
male, and that the requirement of appointing a woman, later narrowed to a woman
from KwaZulu‑Natal, was introduced only after the interviews and thus excluded the
third candidate, who was apparently from Limpopo.

third candidate, who was apparently from Limpopo.
[7] The Institute admits, through its pre‑ trial admissions, that the first respondent
was not appointed because he is a male. Both parties, therefore, converge on the
central factual premise that the respondent was the top‑ scoring, fully qualified
candidate, but was not considered for appointment because the Institute opted to

4

appoint a woman to address gender imbalance on its executive. It is this decision,
and the manner in which it was implemented, that gave rise to the first respondent’s
claim of unfair discrimination and the ensuing litigation.
Condonation
[8] The Institute delivered both its Notice of Appeal and the record of appeal out
of time, necessitating separate applications for condonation and reinstatement. It
explains that the Notice of Appeal was filed 10 days late solely because its attorney
of record failed to give the matter proper attention due to workload pressures. The
attorney apologises, contends that the delay was short , non‑prejudicial, and submits
that condonation should therefore be granted.
[9] The Institute argues that the brief delay, together with its alleged strong
prospects of success, justifies condonation. While Mr Mzimele criticises the
attorney’s conduct in his answering affidavit, the Institute maintains that the interests
of justice favour having the appeal heard on the merits.
[10] Regarding the late record, the Institute concedes that it was filed 52 days late,
again due to the attorney’s workload and oversight. The record was due on
8 January 2024 but was only served on 20 March and filed on 22 March 2024. The
Institute’s attorney states that he became aware of the delay only when the first
respondent’s attorneys indicated that the appeal was deemed withdrawn. He then
sought an extension of time from the first respondent, which was refused, and
thereafter worked urgently to compile the record.
[11] He explains that he cleared his diary and completed the record by
20 March 2024. The Institute submits that, although criticism of its attorney’s
conduct is justified, the explanation is adequate and the prejudice of refusing
condonation outweighs any inconvenience to the first respondent. Despite the first
respondent’s continued challenge to the explanation, the Institute argues that the
interests of justice support granting condonation.

interests of justice support granting condonation.
[12] On reinstatement, the Institute states that once informed by the Registrar that
reinstatement was required, its attorney promptly brought the application on
9 April 2024, mistakenly believing earlier that condonation alone was sufficient. The

5

reinstatement application relies on the same affidavit explaining the delays. The
Institute further contends that the appeal has strong prospects of success, concerns
a substantial damages award, and raises issues of importance that warrant both
condonation and reinstatement.
[13] Mr Mzimele opposed the condonation application and contended that the
appellant failed to provide a compelling, convincing, and comprehensive explanation
covering the entire period of delay. He also r elies on the authority of Saloojee v
Minister of Community Development ,3 and contends that the appellant could not
escape the consequences of their attorneys’ negligence and failure to comply with
the rules. He also argued that the application for condonation should fail on the
grounds of lack of prospects of success.
[14] The approach to condonation is settled. An applicant must provide a full and
satisfactory explanation for the delay for the entire period thereof 4 and demonstrate
reasonable prospects of success. These factors are not to be considered in isolation
but together, weighed against the overall interests of justice.5 The interests of justice
ordinarily favour the determination of disputes on their merits, particularly where
substantive rights are implicated , and the delay is not excessive .6 In appropriate
circumstances, strong prospects of success may outweigh deficiencies in the
explanation, especially where no material prejudice is demonstrated.
[15] The caution sounded in Saloojee remains relevant. A litigant cannot
automatically escape the consequences of a legal representative’s neglect.
However, as this Court has repeatedly observed, Saloojee does not establish an
inflexible rule. Where the delay is adequately explained, the attorney’s error is
candidly acknowledged, and corrective steps are taken, the question remains
whether the interests of justice favour the grant of condonation. In the present

whether the interests of justice favour the grant of condonation. In the present
matter, the delay has been explained in chronological order . The explanation
discloses no wilful disregard of the rules. The appeal raises issues of legality and

3 Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A).
4 Department of Transport v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) (2017 (1) BCLR 1; [2016] ZACC
39) para 153; Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus
Curiae) 2008 (2) SA 472 (CC) (2008 (4) BCLR 442; [2007] ZACC 24) para 22.
5 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) .; Turnbull-Jackson v Hibiscus Coast
Municipality 2014(6) SA 592 (CC) para.23
6 See Grootboom v National Prosecuting Authority and Another (2014) 35 ILJ 121 (CC) at paras 50 –
51. 35; and Brummer v Gorfil Brothers Investment (Pty) Ltd 2000 (5) BCLR 465 (CC) at para 3..

6

equality, which, as th e Constitutional Court has recognised, ordinarily warrant
adjudication on the merits.7
[16] Having regard to the explanation, the prospects of success, and the absence
of prejudice sufficient to outweigh the appellant’s right to a proper determination of
the dispute, the interests of justice favour the granting of condonation. As the appeal
lapsed by operation of the rules due to the late filing of the record, the granting of
condonation results in the reinstatement of the appeal.
Issues for determination
[17] The issues for determination in this matter concern the following:
a. Whether the appellant discriminated against Mr Mzimele when it failed
to appoint him as a CFO on the grounds of being a male.
b. Whether the Labour Court was correct in awarding Mr Mzimele
damages for the discrimination.
The decision of the Labour Court
[18] The Labour Court rejected the Institute’s affirmative action defence. It held
that affirmative action was not pleaded as a statutory justification under section 6(2)
of the Employment Equity Act ,
8 (EEA) but emerged only belatedly, after it was
conceded that Mr Mzimele was not appointed because he is male. Reliance on the
Broad-Based Black Economic Empowerment Act was found to be misplaced.
[19] The Court further held that affirmative action under the EEA may be invoked
only to advance “suitably qualified” candidates. The appointee did not meet the
minimum educational requirements for the CFO position, and her experience was
unsubstantiated. This rendered the affirmative-action justification untenable.
[20] In addition, the Labour Court found that the Institute had no written affirmative
action plan at the time of the appointment and that, i n the absence of a structured,

7 See Minister of Defence and Military Veterans v Motau and Others [2014] ZACC 18; 2014 (8) BCLR
930 (CC); 2014 (5) SA 69 (CC) para 24; and Solidarity Trade Union and Others v Minister of Health
and Others [2026] ZACC 19 at para 40.

and Others [2026] ZACC 19 at para 40.
8 Act 55 of 1998.

7

pre-existing policy, the decision was ad hoc and irrational, and therefore could not
constitute lawful affirmative action, in accordance with the principles in Gordon v
Department of Health, KwaZulu- Natal.9 Accordingly, the Institute ought to have
applied the ordinary criteria for appointment.
[21] In determining the relief , the Labour Court found that Mzimele was entitled to
what he sought. The Labour Court accordingly awarded damages under section
50(2) of the EEA and ordered costs, including the costs of Senior Counsel.
The case of the appellant
[22] The Institute concedes that it is a designated employer under the EE A, and
that Mr Mzimel e applied for the CFO post for which he was unsuccessful because
Ms Ellenson was recommended for appointment as a woman. Concerning the relief
sought by Mr Mzimel e, the Institute contends that under section 50 of the EEA,
damages are available only to actual employees, not applicants, and thus Mr
Mzimele, as an applicant, did not qualify to claim damages. It adds that, absent the
second respondent’s appointment, the next ‑ranked woman would have been
selected to achieve gender balance, and the first respondent was not considered
because he is male. The Institute frames the core dispute as whether selecting Ms
Ellenson constituted unfair discrimination, and denies that, but for gender, Mr
Mzimele would have been appointed.
[23] The Institute argued that, as an applicant rather than an incumbent, Mr
Mzimele’s claim falls under section 9 of the Constitution,
10 read with section 6(1), of
the EEA 11. The pleaded case alleges unfair discrimination in recruitment and

9 (2004) 25 ILJ 1431 (LC).
10 Section 9 of the Constitution provides as follows:
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote equality,

legislative and other measures designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more
grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds
in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair
discrimination.(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination is fair.
11 Section 6(1) of the Employment Equity Act 55 of 1998 (as amended) provides as follows:

8

selection criteria expressly covered by “employment policy or practice.” It further
submitted that its gender ‑balance decision was taken under pressure from its
“shareholder,” the provincial government, which was an “employment practice” within
section 6(1), and that the discrimination enquiry must be conducted within that
framework. This is because addressing a gender imbalance in an all -male executive
entails appointing a woman, and male candidates are necessarily excluded on
gender grounds. The Institute accepts the onus of showing that the discrimination
was rational, not unfair, or otherwise justifiable under section 11(1)(b), 12 with
reference to sections 15(2)(d) and 15(3) of the EEA ,13 which permit preferential
treatment and numerical goals for suitably qualified women.
[24] The Institute emphasises that improving women’s representation is a
constitutional and societal imperative, widely accepted across sectors. Implementing
this may legitimately make gender decisive; panels must weigh constitutional
imperatives, organisational needs, and candidates’ rights. It adds that organisations
may define needs beyond “highest score.” Given a three‑person, all‑male executive
team, appointing a woman was a reasonable way to correct the imbalance and meet
shareholder expectations.
[25] As the shareholder is a provincial department acting via the MEC, the Institute
says the pressure to secure gender balance was legitimate and aligned with
constitutional norms. In a small executive, a single female appointment materially
advances representivity and public confidence. For a senior post with automatic
board membership, the Institute submits that it was rational to treat gender

“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment
policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status,

family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV
status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.”
12 Section 11(1)(b) of the Employment Equity Act 55 of 1998 (as amended) provides as follows:
“(1) If unfair discrimination is alleged on a ground listed in section 6(1), the employer against whom
the allegation is made must prove, on a balance of probabilities, that such discrimination — (a) did not
take place as alleged; or (b) is rational and not unfair, or is otherwise justifiable.”
13 Section 15(2)(d) and section 15(3) of the Employment Equity Act 55 of 1998 (as amended)
provide as follows:
“15. Affirmative action measures
(2) Affirmative action measures implemented by a designated employer must include (d) subject to
subsection (3), measures to (i) ensure the equitable representation of suitably qualified people from
designated groups in all occupational levels in the workforce; and (ii) retain and develop people from
designated groups and to implement appropriate training measures, including measures in terms of
an Act of Parliament providing for skills development.
(3) The measures referred to in subsection (2)(d) include preferential treatment and numerical goals,
but exclude quotas.”

9

representivity as central, even dominant, given zero female representation. It argues
that gender balance was a key factor . Thus, although Mr Mzimele scored higher on
technical grounds , appointing him would undermine representivity, whereas
appointing a woman would advance it. Any adverse effect on him was incidental to
organisational needs.
[26] The Institute further emphasise that the aim was not to favour a specific
woman over the first respondent, but to achieve gender balance. It contends that
gender ‑based selection to meet a legitimate organisational purpose is rational and
objectively justifiable. This is because gender representivity is constitutionally
aligned, and gender‑based decisions are not inherently unfair , and fairness depends
on context. The enquiry requires a balance between equity goals and the rights of
unsuccessful candidates.
[27] The Institute concedes that choosing a woman triggers a presumption of
unfair discrimination under section 6(1) but submits that the presumption is rebutted
because the decision advances a legitimate societal and organisational goal rather
than discrimination for its own sake. It argues that, when the context is considered,
namely the constitutional interest in correcting imbalance and the absence of any
legitimate expectation of appointment for applicants, the presumption is rebutted.
Therefore, properly weighed, the decision was not unfair.
[28] The Institute disputes the Labour Court’s view that, without a written equity
plan, any gender ‑based preference is inherently irrational and unfair. It argues that
the absence of a plan is not automatically fatal; each case must be assessed on its
facts. It stresses that it is a small, recently established body with a three‑ person
executive. According to it, imposing large ‑department formality is disproportionate.
It denies unfair discrimination and maintains that the appointment was rational, not

It denies unfair discrimination and maintains that the appointment was rational, not
unfair, and otherwise justifiable. It challenges the finding that the decision was “ad
hoc and random,” asserting that the second respondent was suitably qualified and
that the gender choice was rationally tied to the board's transformation.
[29] Concerning the decision to award damages , the Institute argues that the
Labour Court misapplied the law because it l acked the power to do so, and, in any
event, quantum and causation were not proven. It submits that Mr Mzimele ’s

10

evidence of income was inadmissible and inadequate, as tax assessments show
declarations to SARS, not actual earnings; as an accountant, he should have
produced financials. He also failed to prove the CFO's counterfactual and to account
for omitted contingencies.
Mr Mzimwele’s case
[30] As noted earlier, Mr Mzimele opposed the appeal and contends that it was
impermissible for the Institute to rely on the EEA on appeal, as it had never pleaded
an EEA defence at the Labour Court.
[31] Mr Mzimele correctly argues that the Institute’s new reliance on the EEA on
appeal is impermissible because it was neither pleaded nor canvassed in evidence,
and because it contravenes the principle barring new points on appeal. This principle
was stated as follows in Imprefed (Pty) Ltd v National Transport Commission:
14
“The whole purpose of pleadings is to bring clearly to the notice of the Court
and the parties to an action the issues upon which reliance is to be placed.”
[32] Turning to the Institute’s “backup candidate” point, Mr Mzimele points out that
it fails because the process was unlawful, requirements were changed ad hoc,
suitability was ignored, and gender alone was prioritised, so it cannot justify
bypassing him. It is further contended that the policy argument also fails because
the second respondent was not suitably qualified and the Institute never conducted
the section 20(4) assessment under the EEA. The only “experience” evidence came
from the second respondent, not the employer, contrary to the Act. Therefore,
speculation about alternative appointees is misplaced.
[33] The legal question is whether, on a proper application of the law, Mr Mzimele
should have been appointed. He argued that on the balance of probabilities, he
should have been appointed. He contends that points of law may be raised on
appeal where the interests of justice demand. While the Institute’s statements on
representivity reflect the EEA framework, the flaw lies in its implementation, which is

representivity reflect the EEA framework, the flaw lies in its implementation, which is
erratic, ad hoc, and politically influenced. The problem , according to him, is not
affirmative action per se, but its unlawful application.

14 [28] [1993] 2 All SA 179 (A) at 107.

11

[34] Relying on the Barnard’s15 case, the contention is that there is a distinction
between a valid equity objective and its implementation, and that even a lawful goal
must be executed lawfully, rationally, and fairly. The argument is further that even if
gender balance was a legitimate objective, the implementation was unfair and
resulted in discrimination against Mr Mzimele; intent cannot salvage an unlawful
process.
[35] Accordingly, the facts show unfair implementation, namely, political pressure
to appoint a woman; the exclusion of the top‑ scoring male; the second respondent’s
failure to meet educational requirements; and the absence of a section 20(4) ,
16
assessment. He argued that t he case of PSA obo Tlowana v MEC Agriculture, 17
confirms that candidates who do not meet the minimum requirements should not be
shortlisted. The Institute effectively imposed a prohibited quota in accordance with
section 15(3), 18 of the EEA, creating an absolute barrier against men. The
contention is that in Solidarity obo Erasmus v Eskom ,19 rigid shortlisting rules that
bar certain groups created an absolute barrier and were unfair. By excluding Mr
Mzimele solely because he is male, the Institute engaged in job reservation and
unfair discrimination contrary to sections 6(2), 15(3), and 15(4) of the EE A, so the
contention goes.
[36] Mr Mzimele accepts that designated employers have duties under section
13(1) of the EEA to implement affirmative action. Even in the absence of a formal
plan, implementation must be lawful and fair, and Gordon's case supports the view
that unstructured, ad hoc measures are irrational.
20 He contends that Gordon found
irrationality where there were no guidelines, no coherent plan, and an arbitrary
reversal of a selection, paralleling the Institute’s plan- less, data-less, ad hoc

15 SA Police Service v Solidarity obo Barnard [2014] ZACC 23; 2014 (6) SA 123 (CC); [2014] 11 BLLR
1025 (CC); 2014 (10) BCLR 1195 (CC); (2014) 35 ILJ 2981 (CC).

1025 (CC); 2014 (10) BCLR 1195 (CC); (2014) 35 ILJ 2981 (CC).
16 Section 20(4) of the EEA provides: “Subject to section 15(3), nothing in this section requires a
designated employer to take any decision concerning an employment policy or practice that would
establish an absolute barrier to the prospective or continued employment or advancement of people
who are not from designated groups.”
17 [2012] ZALCJHB 121; (2012) 33 ILJ 2675 (LC) (24 February 2012).
18 Section 15(3) of the EEA provides: “The measures referred to in subsection (2) include preferential
treatment and numerical goals, but exclude quotas.”
19 [2024] ZALCCT 18; (2024) 45 ILJ 2073 (LC) (24 May 2024).
20 See Gordon v Department of Health: KwaZulu -Natal 2008 [2008] ZASCA 99; 2008 (6) SA 522
(SCA); [2009] 1 All SA 39 (SCA) ; 2009 (1) BCLR 44 (SCA); [2008] 11 BLLR 1023 (SCA); (2008) 29
ILJ 2535 (SCA).

12

approach. The result is unfair discrimination. Gordon does not mean that every
decision without a plan is automatically irrational; designated employers may act
without a written plan, but measures must still be rational, lawful, and evidence-
based. He argued that i n this appeal, any valid aim was undermined by ad hoc
implementation, making the outcome objectively unfair and irrational.
Legal framework
[37] The Constitution does not place affirmative action measures beyond judicial
scrutiny. It authorises only measures that are adequate for their intended purpose,
carefully constructed to achieve that purpose, and aimed at the equal enjoyment of
rights. Both the objectives pursued and the means adopted are therefore subject to
scrutiny, and such measures may not extend beyond what is adequate to achieve
the stated aim. Measures that are haphazard, random or overhasty, and that lack a
demonstrated causal connection to the objective, do not qualify for protection under
section 9(2) of the Constitution.
[38] This means that earmarking posts for black, women or disabled candidates, to
the total exclusion of other incumbents, constitutes discrimination on listed grounds.
Such discrimination triggers the presumption in section 9(3)
21 of the Constitution that
it is unfair, and the party responsible bears the burden of showing that the
discrimination is fair under an allowable measure contemplated in section 9(2) of the
Constitution.22
[39] Suitability remains a merit -based concept grounded in qualifications, training,
efficiency and the inherent requirements of the post. Representivity concerns must
therefore be addressed through lawful affirmative action measures, not by altering or
distorting the statutory meaning of suitability. A management plan, a workforce
analysis, a statistical assessment, labour pool data, or other rational criteria
demonstrating a clear connection between the chosen measures and the

demonstrating a clear connection between the chosen measures and the
constitutional objective are necessary. A haphazard or overhasty process that

21 Section 9(3) of the Constitution provides:
“The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language and birth.”
22 Public Servants’ Association of South Africa and Another v Minister of Justice and Others 1997 (5)
BCLR 577 (T) at 627 – 633.

13

effectively excludes other groups, irrespective of individual merit, is irrational and
inconsistent with section 9(2) of the Constitution.23
[40] Accordingly, and in general , an employer engages in unfair discrimination
when it directs that only designated groups be shortlisted, thereby nullifying an
employee’s candidature solely on the basis of race or gender. Where no
employment equity plan was in place during the period relevant to the employee’s
application and shortlisting, the employer lacks a lawful affirmative action framework
on which to rely when excluding the employee.
[41] Any policy that lacks the numerical goals, targets, timeframes, monitoring
mechanisms, and sufficient flexibility required by the EEA for lawfulness does not
constitute a measure contemplated in the Act or in section 9(2) of the Constitution.
In the absence of these required elements, the preference for designated candidates
amounts in substance to quota- like exclusion, which is impermissible under section
15(3) and fails to meet both the constitutional standards in section 9(2) and the
criteria set out in section 42 of the EEA.
24
[42] The measures contemplated in section 15(2) of the EEA must identify under -
representation using national and regional data on the economically active
population, set numerical goals, and be measurable and monitorable. They must
also remain flexible, avoid creating absolute barriers, and include mechanisms for
deviation that prevent disproportionate harm. These measures cannot be applied in
a rigid manner that would create an absolute bar to the appointment of other groups,
as such rigidity fails the third requirement of the constitutional test, namely the
promotion of equality without undue harm. Section 15(4) expressly prohibits
measures that impose absolute barriers on non- designated candidates. Any
instruction that designates only a group of candidates for shortlisting, therefore,

instruction that designates only a group of candidates for shortlisting, therefore,
creates such an absolute bar, unlawfully preventing the employee from competing on

23 Public Servants’ Association of South Africa and Another v Minister of Justice and Others 1997 (5)
BCLR 577 (T) at 642 – 645.
24 Solidarity obo Pretorius v City of Tshwane Metropolitan Municipality [2016] 7 BLLR 685 (LC) at 690
– 703.

14

merit and contravening the Act’s requirement that suitably qualified non- designated
candidates must still be permitted to compete fairly.25
[43] The proper position is that where valid affirmative action measures are at
issue, the claim must be assessed under section 9(2) of the Constitution and section
6(2) of the EEA, rather than through a freestanding unfair discrimination inquiry. In
such circumstances, the measure is neither unfair nor presumed unfair, although its
implementation remains subject to legal review.
[44] Nevertheless, measures adopted under section 9(2) of the Constitution and
section 15(2) of the EEA may use numerical goals but not quotas, which are
expressly prohibited by section 15(3). Such measures must also not create absolute
barriers for non-designated employees, as required by section 15(4) of the EEA.
26
[45] Measures that comply with section 9(2) of the Constitution are not
presumptuously unfair, because section 9(2) forms a substantive component of the
right to equality rather than an exception to it. This presupposes that the measures
are directed at persons or categories disadvantaged by unfair discrimination, that
they are designed to protect or advance such groups, that they are not arbitrary or
capricious, that they are reasonably likely to achieve the intended remedial purpose,
and that they promote equality while avoiding abuses of power or the imposition of
substantial and undue harm on those who are excluded. The provisions of section
9(2) do not require proof that it was necessary to disadvantage one group to assist
another, nor do they demand a showing of the least restrictive means. The proper
enquiry is whether the measure is reasonably likely to achieve its remedial purpose.
Although the pursuit of equality may sometimes adversely affect the previously
advantaged, the measures must not impose substantial, undue harm that
undermines the constitutional objective.
27

undermines the constitutional objective.
27
[46] Overall, fairness under section 6 of the EEA is assessed holistically,
considering the purpose of the measure, its impact, the proportionality of its effects,
and the inherent requirements of the job. When these elements are met , and the

25 Solidarity obo Pretorius v City of Tshwane Metropolitan Municipality [2016] 7 BLLR 685 (LC) at 704
- 709.
26 SAPS v Solidarity obo Barnard [2014] 11 BLLR 1025 (CC) at paras 42 – 68.
27 Minister of Finance & Another v Van Heerden [2004] 12 BLLR 1181 (CC) at paras 28 – 44.

15

employer demonstrates that the measure constitutes a valid affirmative action
measure under section 6(2), it operates as a complete defence to a claim of unfair
discrimination.28
[47] Therefore, designated employers must implement measures in accordance
with section 13 of the EEA to achieve equitable representation of suitably qualified
persons. While numerical goals are permitted, quotas are prohibited under section
15(3) of the EEA. The implementation of such measures must be assessed for
rationality and legality, and any remedial measures must satisfy the three- part test
under section 9(2) of the Constitution, namely that they target persons
disadvantaged by unfair discrimination, are designed to advance such persons, and
promote the achievement of equality.
29
[48] Appointments must therefore secure efficiency while advancing representivity,
to give effect to the constitutional vision of a capable and inclusive public
administration. It follows that measures adopted to advance designated groups do
not constitute unfair discrimination, because the EEA permits numerical goals,
prohibits quotas, and forbids the creation of absolute barriers. The proper enquiry is
therefore whether the measure targets persons disadvantaged by unfair
discrimination, whether it is designed to advance them, and whether it promotes
equality. A measure that differentiates on a listed ground, such as age or gender,
constitutes discrimination. Still, it amounts to unfair discrimination only where it
unjustifiably impairs dignity or targets a vulnerable or historically disadvantaged
group. This aligns with the analytical structure set out in Harksen’s
30 case, which
requires assessing the nature of the ground, the measure’s impact, and whether the
differentiation imposes unfair harm.
31
[49] Unfairness requires assessing the measure's impact, including whether the
affected class has experienced past patterns of disadvantage, whether the measure

affected class has experienced past patterns of disadvantage, whether the measure
impairs dignity, and whether there is a legitimate purpose underlying the
differentiation. The enquiry focuses on the nature and extent of the impact on those

28 South African Airways (Pty) Ltd v Jansen Van Vuuren and Another [2014] 8 BLLR 748 (LAC) 108 at
para 26 – 47.
29 Solidarity v Minister of Safety and Security and others [2016] 5 BLLR 484 (LC).
30 Harksen v Lane NO and Others 1998 (1) SA 300 (CC); [1997] ZACC 12.
31 SA Navy v Tebeila Institute of Leadership, Education, Governance and Training [2021] 6 BLLR 555
(SCA) at paras 8 – 10.

16

burdened by the measure, considering their social and historical context and the
justification for the differential treatment.
[50] A discriminatory measure remains lawful where it is rationally connected to a
legitimate purpose, including the advancement of constitutionally mandated
objectives. The inquiry is whether the differentiation serves a legitimate
governmental or statutory aim and whether there is a rational relationship between
the measure adopted and the purpose sought to be achieved.32
[51] Therefore, institutions may set thresholds even if doing so excludes some
capable individuals, because drawing lines is inherent to threshold- setting. This is
permissible provided that the chosen line falls within the range of reasoned policy
choices available to the decision- maker. The law does not require an employer to
adopt the most flexible or inclusive mechanism possible. What matters is that the
threshold reflects a rational and administratively feasible policy choice, rather than
arbitrariness or caprice.
33
[52] Accordingly, discrimination must be assessed within the broader framework of
fairness, considering the interests of the employer, the employee and society, and
recognising that not all discrimination on a listed ground is automatically unfair. This
is because fairness is an elastic and context -sensitive concept, informed by
operational realities, commercial rationality and prevailing societal conditions,
provided the employer has not acted arbitrarily or with prejudice.
34
[53] The EEA applies only to employment policies or practices, which expressly
include recruitment procedures and selection criteria. The Constitutional Court in
Sali’s case,35 therefore, held that the impugned decision was based on a policy or
practice created by waiver rather than on legislation, thereby squarely bringing the
matter within section 6(1) of the EEA.

32 SA Navy v Tebeila Institute of Leadership, Education, Governance and Training [2021] 6 BLLR 555

(SCA) at paras 18 – 20.
33 SA Navy v Tebeila Institute of Leadership, Education, Governance and Training [2021] 6 BLLR 555
(SCA) at paras 21 – 23.
34 The concept that fairness is contextual and not rigid was firmly established in Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; (2008) 29 ILJ 2405 (CC).
35 Sali v National Commissioner of the SAPS [2014] 9 BLLR 827 (CC) at paras 57 – 65.

17

[54] The refusal to appoint the applicant may constitute differentiation on a listed
ground under section 9(3) of the Constitution and section 6(1) of the EEA, thereby
triggering a presumption of discrimination and a further presumption that such
discrimination is unfair, unless the employer demonstrates that the differentiation
was justified. Under section 11 of the EEA, once the applicant has alleged unfair
discrimination on a listed ground, the onus shifts to the employer to prove that the
discrimination was fair.
36
[55] In accordance with Item 2(1)(a) of Schedule 7 to the LRA, read together with
Item 2(2)(b) and section 9(2) of the Constitution, unequal treatment is permissible
where it is effected through measures designed to advance disadvantaged groups.
Courts, therefore, require a rational relationship between the means adopted and the
remedial ends pursued, so that ad hoc, random, or naked- preference decisions do
not constitute lawful measures. Where the evidence does not establish the existence
of a plan or policy grounded in demographic data, representivity analysis and a
coherent framework for affirmative action, but instead reflects an assertion
unaccompanied by design or structure, it cannot qualify as a measure under either
the LRA or the Constitution. In the absence of a proper plan, any such action is ad
hoc, arbitrary and unfair.
37
Damages
[56] Turning to the issue of remedies, section 50 of the EEA provides the Labour
Court with the discretionary powers to frame various remedies based on the
pleadings and the evidence before it. In thi s matter, the two remedies that need
attention are those provided for under section 50( 2)(a) and (b) , which are distinct
from each other and may be claimed jointly or separately. The remedies are
patrimonial (damages) and non- patrimonial or solatium (compensation). The
distinction between the two remedies was recognised in SA Airways,38 where the

distinction between the two remedies was recognised in SA Airways,38 where the
Court held that there is a distinction between the two remedies and that they are
distinct from each other. To succeed in each of the claims, the plaintiff needs to

36 Sali v National Commissioner of the SAPS [2014] 9 BLLR 827 (CC) at paras 71 – 75.
37 Gordon v Department of Health: KwaZulu- Natal 2009 (1) BCLR 44 (SCA); [2008] 11 BLLR 1023
(SCA) at paras 15 – 28.
38 Hoffmann v South African Airways [2000] ZACC 17; 2001 (1) SA 1 (CC); 2000 (11) BCLR 1235
(CC); [2000] 12 BLLR 1365 (CC); (2000) 21 ILJ 2357 (CC).

18

plead and or lead evidence to support such a claim. In this regard, it is important to
note that the distinction between the two remedies matters in a discrimination claim.
[57] Patrimonial damages are provided for under section 50(2)(b) of the EEA and
can be obtained on proof of actual financial loss, causation and quantification. This
remedy does not arise automatically from a finding of unfair discrimination. Where
such proof is lacking, the damages claim must fail.
[58] Compensation under section 50(2)(a), by contrast, is a solatium for
non-patrimonial harm, including impairment of dignity, and may be awarded on a just
and equitable basis notwithstanding the failure to prove patrimonial loss, provided
that the award is confined to non- patrimonial injury and does not indirectly
compensate for unproven financial loss. Proof of discrimination is sufficient to infer
harm and impairment of dignity.
[59] Having regard to the discretion given to the Labour Court by section 50(2)(a)
and (b) of the EEA , it follows that an appellate C ourt may interfere with an award
made under this section only in narrow circumstances. These include instances
where the Labour Court acted capriciously, applied an incorrect legal principle, acted
with bias, failed to take relevant considerations into account, or reached a conclusion
that no reasonable court could have reached.
39 It should be emphasised that such
relief must be properly pleaded and proved to enable the Labour Court to determine
and fashion an appropriate remedy within the scope of the issues placed before it.40
Discussion
[60] As stated earlier, t he Institute seeks to invoke an affirmative action defence
that was neither pleaded in its statement of defence nor advanced as a primary
defence at trial. A litigant is bound by its pleadings and may not plead one case
while attempting to advance another at trial or on appeal. A new defence not
pleaded at trial cannot be entertained on appeal. An appeal based on a new

pleaded at trial cannot be entertained on appeal. An appeal based on a new
defence pleaded for the first time on appeal would fail on that basis alone. This
equally applies in the present matter . The defence of affirmative action was not

39 Rapoo v Rustenburg Local Municipality [2020] 6 BLLR 533 (LAC) at paras 25 - 27, ( Minister of
Justice and Constitutional Development v Tshishonga 2009 (4) SA 362 (LC); and Zungu v Premier of
KwaZulu-Natal 2018 (6) SA 589 (CC).
40 Sali v National Commissioner of the SAPS [2014] 9 BLLR 827 (CC) at paras 82 - 87.

19

pleaded but raised for the first time at the trial. Ordinarily, this matter should fail on
this ground alone, and it would also be the end of its consideration. For
completeness, however, the substance of the appeal is fully addressed below.
[61] The correct inquiry into the issue of discrimination i s the structured, context -
sensitive analysis set out in Harksen ’s case.41 The first question is whether the
differentiation is rationally connected to a legitimate purpose. The second is whether
it amounts to discrimination on a listed ground. If so, the enquiry is whether it is
unfair, assessed primarily by impact, purpose, and proportionality rather than by a
formal checklist. This is a substantive inquiry. It is not a mechanical rule that the
absence of a freestanding plan is automatically decisive.
[62] Even if Gordon’s case is considered a caution against ad hoc preferences, it
is not the sole yardstick. Both the Constitutional Court and the Labour Appeal Court
require a holistic fairness assessment under the EEA that balances the remedial aim
with the means adopted and their impact, and asks whether, on the
contemporaneous materials, the employer has shown a rational design and a non-
rigid implementation.
[63] The Institute contends that, even without a written employment equity plan,
the decision to prefer a woman for an all -male three-person executive was rational
and otherwise justifiable within the contemplation of section 11(1)(b) of the EEA,
based on shareholder s’ expectations, small institutional size, and the constitutional
legitimacy of representivity. Proceeding on the most charitable basis to the Institute,
and assuming, without deciding, that the section 11 defence may be considered
notwithstanding the pleading deficit and pre- trial posture, the defence fails on the
merits. There was no contemporaneously designed measure as contemplated by
the Act and section 9(2) of the Constitution.

the Act and section 9(2) of the Constitution.
[64] The Institute did not perform or record the section 20(4) of the EEA,
42 inquiry
into whether the preferred candidate was suitably qualified when departing from the
advertised minima. The panel minutes reveal a post-interview rule that made gender

41 Harksen paragraph 53.
42 Section 20 (4) of the EEA provides: “When determining whether a person is suitably qualified for a
job, an employer must — (a) review all the factors listed in subsection (3); and (b)determine whether
that person has the ability to do the job in terms of any one of, or any combination of those factors.”

20

determinative, which operated as a functional quota or absolute barrier rather than a
flexible numerical goal. In combination, these features engage the irrationality
concern in Gordon’s case and transgress the constraints affirmed in Barnard’s case,
regardless of institutional size. Indeed, context matters, but so does the fit between
ends and means. The Court in Hugo’s case cautioned that benevolent aims do not
immunise a measure if its impact and method entrench unfair exclusion or
stereotypes. The decisive question remains whether the record in this appeal shows
that the employer’s reasons and process reflect proportional implementation rather
than a rigid, categorical bar.
[65] The E EA prohibits unfair discrimination within any employment policy or
practice in section 6(1). The provisions of section 6(2) provide that affirmative action
measures that comply with the Act do not constitute unfair discrimination. The
provisions of section 15 require that such measures be consciously designed to
achieve equitable representation of suitably qualified persons from designated
groups and expressly prohibit both quotas and absolute barriers. The Constitutional
Court in Barnard’s case reaffirmed the test in Van Heerden’s case , which requires
that a restitutionary measure target persons disadvantaged by unfair discrimination,
be designed to advance them, and promote the achievement of equality. Even
where a valid employment equity plan exists, it must be implemented lawfully and
not for an ulterior or capricious purpose. Consistent with that open- textured
approach, the Labour Appeal Court has emphasised that fairness under the Act is
determined by a value- laden balance of purpose, proportionality, and impact,
assessed on the proved facts rather than by labels.
43
[66] A further constitutional constraint is the anti -stereotyping principle. Blanket,
category-based exclusions are suspect unless justified by an individualised,

category-based exclusions are suspect unless justified by an individualised,
evidence-based assessment. The Constitutional Court in Hoffmann’s case and the
Labour Court in IMATU ’s case,44 rejected categorical bars that substitute status for

43 In Solidarity and Others v Department of Correctional and Others (Police Union and another Ami ci
Curiae) [2016] ZACC 18; (2016) 37 ILJ 1995 (CC); 2016 (5) SA 594 (CC); [2016] 10 BLLR 959 (CC);
2016 (10) BCLR 1349 (CC) at para 82. The Constitutional Court held that: “One cannot 'prove, on a
balance of probabilities', that anything is 'rational and not unfair or is otherwise justifiable' , because it
is only a fact that can be proved. Whether conduct is rational , fair or justifiable is not a question of
fact but a value judgment . See also Mahlangu v Samancor Chrome Ltd (Eastern Chrome Mines)
[2020] ZALAC 14; [2020] 8 BLLR 749 (LAC); (2020) 41 (ILJ) 1910 (LAC) (18 May 2020).
44 IMATU & Another v City of Cape Town [2005] 11 BLLR 1084 (LC).

21

case-specific evaluation, thereby reinforcing that legitimate aims must be pursued
through non-rigid means.
[67] Ordinarily, a written employment equity plan is expected to show that any
affirmative action measure was designed in accordance with section 1 5 and the test
articulated in Van Heerden’s case and applied in Barnard’s case. In exceptional
circumstances, particularly in small or newly established entities, an employer may
establish de facto design through contemporaneous documentation demonstrating
the necessary safeguards. These include a board resolution predating the
appointment that sets representivity goals for the relevant occupational level, a
workforce analysis using national and regional data on the economically active
population that identifies underrepresentation, a recorded section 20(4) assessment
of each candidate’s suitability, and documentation showing flexibility rather than the
creation of absolute barriers.
[68] Without these safeguards, general reliance on values or shareholder pressure
is insufficient. The measure then appears as an ad hoc intervention inconsistent with
the cases of Gordon’s and Barnard. In this appeal , the question is whether the
contemporaneous record shows individual evaluation and non -rigidity in weighing
gender, rather than a post -interview, category -based rule. Where a measure
functions as a categorical bar and bypasses candidate- specific assessment, courts
have found unfairness, notwithstanding a remedial aim. The Institute’s reliance on
institutional smallness/size or newness, and on the absence of a plan as a tolerable
interim state, is misplaced.
[69] The statutory requirement that a measure be designed in accordance with
section 6(2) read with section 15 of the Act does not evaporate because of
headcount. As mentioned, a design can be demonstrated by inter alia
contemporaneous documents, such as a board resolution predating the
appointment, a workforce analysis against the economically active population,

appointment, a workforce analysis against the economically active population,
recorded section 20(4) matrices, and deviation mechanisms, even in a small body.
In these proceedings, none of these safeguards appears. Instead, the minutes show
a post -interview, outcome-driven preference, first by gender and then by province,
untethered to any documented criteria or flexibility. That is precisely the ad hoc vice
condemned in Gordon’s case, a nd it fails the Barnard’s case requirement that

22

measures must neither operate as absolute barriers nor result in the appointment of
persons who are not equally up to the task.
[70] Relatedly, the job rationale is inherently narrow. It must be proved and
demands indispensability, not operational convenience, and cannot rest on blanket
assumptions. The Labour Court in IMATU ’s case,45 requires an individualised
appraisal rather than generalised risk assertions. The Labour Appeal Court’s recent
equality jurisprudence, including Mahlangu’s,
46 case, reinforces this point by
condemning rules that operate as categorical gates, such as a rule that renders a
second pregnancy a trigger for unpaid leave, because such rules displace individual
assessment with status -based exclusion. The same logic cautions against gender -
determinative rules that lack contemporaneous justification and flexibility.
[71] The jurisprudence draws a clear distinction between measures consciously
designed to advance equality and ad hoc or opportunistic preferences. In Gordon’s
case, the Supreme Court of Appeal held that a single appointment justified solely on
representivity, without any supporting policy, plan, demographic analysis, or rational
design, does not constitute a measure under section 9(2) of the Constitution and is
inherently arbitrary and unfair. By contrast, where an employer proves the existence
of a valid employment equity plan with numerical goals and a rational connection
between the identified underrepresentation and the appointment, courts have upheld
such decisions. Those circumstances do not arise here.
[72] It may be accepted that a single appointment of Ms Elleson in this matter can
significantly alter the composition of a small executive and that this may legitimately
carry weight, but only if the Institute ’s contemporaneous reasons demonstrate
design, flexibility, and candidate- specific justification, rather than a rigid barrier that
forecloses a merit -based assessment. Even crediting the Institute’s context of a

forecloses a merit -based assessment. Even crediting the Institute’s context of a
small, all-male executive and the need for visible gender inclusion, the Court must
still be satisfied, on the record, that the means were proportionate, evidence-led, and
non-rigid, and that any departure from advertised minima was justified by individual

45 IMATU & Another v City of Cape Town (2005) 11 BLLR 1084 (LC).
46 Mahlangu v Samancor Chrome Ltd (Eastern Chrome Mines) [2020] ZALAC 14; (2020) 41 ILJ 1910
(LAC); [2020] 8 BLLR 749 (LAC).

23

suitability rather than by category alone. Where that showing is absent, the measure
shifts from restorative to exclusionary and becomes unfair.
[73] On the record, the authorities require substance over form. They require
individualised appraisal, a rational connection between means and ends, and the
avoidance of absolute barriers. These requirements cannot be inferred from post ad
hoc reliance on context alone. To distinguish legitimate numerical goals from
prohibited quotas, a quota may be inferred where two or more indicators appear on
the record, and there is no evidence of a deviation mechanism.
[74] In this appeal, the record discloses exclusionary language recommending the
appointment of a female and giving first preference to a local KwaZulu- Natal female;
a change in criteria after interviews, adding gender and province after scores were
awarded; a directive that made the gender outcome determinative; and the absence
of any deviation mechanism in the contemporaneous materials. Without a plan or
without a section 20(4) record, the inference of a functional quota or an absolute
barrier is not rebutted by general appeals to shareholder pressure or organisational
needs.
[75] Undoubtedly, the Institute could pursue representivity, but not through an ad
hoc process. The employer could rebut the inference only through
contemporaneous documentation demonstrating genuine flexibility. The outcome
here does not rest on a no- plan rule per se or on Gordon’s case alone. It follows
from the fairness framework, including the Labour Appeal Court’s approach in South
African Airways, and the failure to demonstrate contemporaneous design, non -
rigidity, and individual evaluation.
[76] In this appeal, the record shows that the Institute’s executive structure
consisted entirely of men, that shareholders exerted pressure to appoint a woman,
and that the selection panel regarded gender balance as decisive. To repeat, there

and that the selection panel regarded gender balance as decisive. To repeat, there
was no employment equity plan, no consultation, no demographic analysis, and no
structured criteria to show that the appointment formed part of a consciously
designed measure to advance equality. The successful candidate did not meet the
advertised educational requirements, and the Institute failed to perform the inquiry
required by section 20(4) to determine whether she was suitably qualified. The

24

decision accordingly falls within the category of ad hoc preference condemned in
Gordon’s case.
[77] Section 20(4) contemplates a pre- appointment checklist that must be
recorded for each candidate. It includes education, with reasons for any deviation
from advertised requirements; relevant experience, quantified against the key
outputs of the post; the capacity to acquire the required skills, supported by an
evidence-based training plan; and comparative fit, demonstrating how the proposed
beneficiary meets the inherent requirements relative to competing candidates.
Without contemporaneous documentation of these inquiries, the Institute could not
rely on section 6(2) because suitability has not been objectively established. The
submission that Ms Elleson was nonetheless suitably qualified under section 20(4)
confuses the statutory test.
[78] Section 20(4) permits measured, recorded reliance on the ability to acquire
capacity, provided the employer maintains a contemporaneous rationale. To
emphasise, the Institute’s advertisement set out essential minima: a postgraduate
accounting honours degree; completed articles; a chartered accountant designation
as an advantage; eight years in accounting or finance, with five years at a senior
management level. The record contains no section 20(4) worksheet or reasoned
deviation. By contrast, the minutes show a pivot to gender and province, while
ignoring the advertised criteria and ranking. On these facts, the Institute neither
objectively established Ms Ell enson’s suitability nor justified departing from the
essential minima. The Labour Court’s conclusion that she was not suitably qualified
is borne out by the record. On the issue of but -for causation, where an otherwise
eligible and top- ranked candidate is excluded solely on a prohibited ground, our
courts treat reinstatement or its patrimonial analogue as appropriate relief. The
Institute’s speculation about alternative outcomes does not displace the probable

Institute’s speculation about alternative outcomes does not displace the probable
appointment of Mr Mzimele absent the unlawful barrier.
[79] The Institute’s reliance on general constitutional values and on its status as a
small, developing institution does not satisfy the statutory requirement that
affirmative action be designed and implemented through lawful processes.
Shareholder pressure cannot replace legislative requirements. On these facts, the
process created an effective absolute barrier to Mr Mzimele as a male candidate,

25

reminiscent of a quota and impermissible under sections 15(3) and 15(4) of the EEA.
Thus, even if the unpleaded defence were considered on the merits, it would fail.
The appointment did not arise from a lawful affirmative action measure and
amounted to unfair discrimination. Effectively, Gordon’s case is not distinguishable
on any material basis.
[80] Where a process is tainted by the absence of design, the presence of a quota
inference, or a failure to conduct and record section 20(4) inquiries, speculation that
another candidate would in any event have been appointed does not break
causation. The onus rests on the employer to prove, through contemporaneous and
pleaded evidence, that a lawful basis existed at the time and would still have
prevented the claimant’s appointment. Ex post facto rationalisation or unpleaded
hypotheses do not discharge that burden. Even on the assumption of an alternative
candidate, the appointment would have remained unlawful without a designed
measure and proper documentation.
[81] In the end, there was no plan, no analysis of the economically active
population, no section 20(4) records for any candidate, and a post -interview gender
rule adopted under shareholder pressure in an all -male executive environment.
These circumstances fail every de facto design safeguard, trigger multiple quota-
inference indicators, and cannot be cured by reliance on broad- based black
economic empowerment. Even if properly raised, the affirmative action defence
would fail under Gordon and Barnard’s cases, including the principles set out above.
The onus rested on the employer to prove that, on the same date and the same
record, a lawful basis existed that would probably have defeated the claim. The
minutes identify Ellenson only within the very framework found to be ad hoc , namely,
a gender-determinative decision coupled with a KwaZulu- Natal filter, with no plan
and no section 20(4) record. The Institute pointed to no contemporaneous design

and no section 20(4) record. The Institute pointed to no contemporaneous design
instrument that could lawfully have sustained an alternative appointment at the time.
The Labour Court’s finding, therefore, remains intact, namely that but for the unlawful
sex-based exclusion, the top-ranked candidate would probably have been appointed.
[82] In short, even accepting that context matters, that a single appointment can
shift representivity, and that a formal plan is not invariably decisive, the governing
test remains the fairness enquiry as articulated by the Labour Appeal Court. The

26

Institute fails that test because it did not demonstrate contemporaneous design, non-
rigidity, or individual evaluation, and instead erected a category-based barrier.
[83] I now turn to deal with the issue of the remedy. Although the Labour Court in
its judgment makes reference to both subsections (a) and (b) of section 50(2) of the
EEA, it is, however, clear that the pleaded case was for patrimonial damages and not
compensation. The damages represent the difference between what Mr Mzimele
would have earned and his actual earnings. This finding is based on the pleaded
case and Mr Mzimele's testimony . In the statement of case, he claimed to have
suffered damages in the amount of R4 663 096.00. In this regard, he relied on his
anticipated salary, but for the discrimination, from 1 October 2014 to 2019, calculated
at R35 000,00 per month, which was disputed by the Institute.
[84] In support of the claim, Mr Mzimele relied on the tax assessments issued by
SARS for the financial years between 2014 and 2019. He also used the salary
offered for the post as a comparator for what he would have earned but for the
discrimination. He testified that after the termination of his fixed -term employment
contract with the Institute, he returned to private practice. He testified during the trial
that:
“When the services were terminated, I went back to the practice. When I got
there, my salary was actually erratic. Some months I got nothing, and some
months I got some money. There was a year when I was actually getting
nothing. I was relying on my wife's chicken business as well as my wife's
salary to get going. Some years, there is a year when I did not get anything
from the business.”
[85] In BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of SA obo
Deppe,47 the Labour Appeal Court confirmed that an award of damages under
section 50 of the EEA is contingent upon proof of actual patrimonial loss and

section 50 of the EEA is contingent upon proof of actual patrimonial loss and
the existence of a causal nexus between the employer’s conduct and the loss
suffered. Likewise, in ARB Electrical Wholesalers (Pty) Ltd v Hibbert ,
48 this
Court drew a clear distinction between compensation and damages, holding

47 BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa and Another [2020]
ZALAC 22; (2020) 41 (ILJ) 1877 (LAC) ; [2020] 11 BLLR 1079 (LAC).
48 See ARB Electrical Wholesalers (Pty) Ltd v Hibbert [2015] ZALAC 34; [2015] 11 BLLR 1081 (LAC);
(2015) 36 ILJ 2989 (LAC).

27

that compensation operates as a solatium for humiliation or impairment of
dignity, whereas damages constitute recompense for proven patrimonial loss
and accordingly require evidentiary proof. This distinction was reiterated in
SA Airways (Pty) Ltd v Jansen van Vuuren & another ,49 where the Court
stated:
“The EEA draws a distinction between "compensation" and "damages", and
does not regard them as the same. .... The intention must have been that they
connote different kinds of award. In my view, the only rational meaning that
can be given to the terms is that "damages" connotes a monetary award for
patrimonial loss and "compensation" connotes a In the EEA, "damages" refer
to an actual or potential monetary loss (i.e patrimonial loss) and
"compensation" refers to the award of an amount as a solatium (i.e to non-
patrimonial loss) monetary award for non-patrimonial loss (including a
"solatium")
[86] Accordingly, as reaffirmed in Rapoo v Rustenburg Local Municipality ,50 a
claim for damages must be properly pleaded and substantiated by cogent evidence.
The Court emphasised that the mere filing of documents, absent a coherent and
particularised damages case, does not constitute proof of patrimonial loss.
[87] It is clear that the issue regarding the relief is whether the Labour Court erred
in accepting that the evidence presented by Mr Mzimwele was sufficient proof of the
loss he allegedly suffered. In this regard, the onus was on him to prove a causal
connection between discrimination and actual financial loss.
[88] Before dealing with the issue of the weight of the evidence tendered regarding
the relief granted by the Labour Court , it is important to point out the nature of the
relief which was sought by Mr Mzimele. In the statement of claim at paragraph 5.13,
he states that he is claiming damages and that , but for the discrimination, he would
have earned a salary of “R94 150 per month, net for a period of 5 years commencing
from 01 October 20224.”

from 01 October 20224.”

49 See South African Airways (Pty) Ltd v Jansen Van Vuuren and Another [2014] ZALAC 108 (12
June 2014) at paras 75 – 76 and ARB Electrical Wholesalers (Pty) Ltd v Hibbert N.D [2015] ZALAC
34; (2015) 36 ILJ 2987 (LAC) where this Court distinguished between compensation as a solatium for
humiliation or impairment of dignity, and damages as recompense for proved patrimonial loss, holding
that proof of loss is required for the latter.
50 Rapoo v Rustenburg Local Municipality [2020] ZALAC 5; [2020] 6 BLLR 533 (LAC).

28

[89] In the pre-trial minutes , it is stated that he seeks payment in the total of
R4 663 096.00 plus interest. The minutes further indicate that the Institute disputed
that he earned R35 00.00 per month. Despite his undertaking to produce proof of
the same, none has been produced.
[90] After stating in its introductory paragraph of the judgment , the Labour Court
notes that it is dealing with the claim under both subsection (2)(a) and (b) , which
relate to patrimonial loss. In paragraph [24], it held that:
"There is no reason to reject the Applicant's claim. He proved that he was
unfairly" discriminated against and pleaded and proved his damages. He
confirmed in his testimony that he had calculated his damages by reference
to his income tax disclosures to the South African Revenue Services for the
period 2014 to 2019 (the Income he earned in each of those years; the
amount of the mitigation) and the offer of employment given to the Second
Respondent.”
[91] It is clear from the above that although the Labour Court referred to both sub-
sections, its determination was per the claim of Mr Mzimele, confined to the claim of
patrimonial damages.
[92] It is generally accepted that whilst tax returns may be accepted as evidence,
they are insufficient on their own to conclusively establish financial loss. They show
income, not loss per se; they reflect declared income to SARS and do not establish
what Mr Mzimele would have earned but for the Institute's discriminatory conduct.
Put another way, they do not provide conclusive proof of earnings or loss, as they
may be incomplete or unreliable and rely on self -reporting. They reflect taxable
income, not actual income. In general, they may provide historical earnings . Such
evidence needs to be considered with the totality of all other evidence.
[93] Mr Mzimele’s tax returns show, to some extent, what money he earned, not
what he lost, and any loss, if ever, was caused by business volatility on his version.

what he lost, and any loss, if ever, was caused by business volatility on his version.
[94] The reliance placed on the remuneration earned by Ms Ellen son, the
successful candidate, which was introduced during re- examination, does not avail
the applicant. The establishment of unfair discrimination does not, without more,
constitute proof of the quantum of any patrimonial loss. Whilst the comparator’s

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salary may serve as a reference point, it is not determinative in the absence of
evidence establishing what the applicant would, in fact, have earned had he been
appointed. Material considerations relevant to that enquiry were not addressed,
including whether the applicant would have been appointed at the same salary
notch, at a different level, or on materially different remuneration terms. In the
absence of such evidence, reliance on the comparator’s salary alone is insufficient to
establish the extent of the alleged loss.
Conclusion
[95] It is clear from the above that the Institute unfairly discriminates against Mr
Mzimele in contravention of the provisions of the EEA. This constitutes a breach of
Mr Mzimele’s right to equal treatment and non-discrimination in employment.
[96] It is further clear that the claim as pleaded by Mr Mzimele was confined to
patrimonial damages in terms of section 50(2) (b) of the EEA. He , in this regard,
failed to discharge his onus of proving actual patrimonial loss. He did not claim non-
patrimonial loss.
[97] In the premises, the following order is made:
Order:
1. The applications for condonation for the late filing of the notice of
appeal and the record are granted.
2. The appeal is reinstated.
3. The appeal against the finding of the Labour Court that the appellant
(the Institute ) unfairly discriminated against the first respondent (Mr
Mzimele) is dismissed.
4. The order of the Labour Court awarding patrimonial damages to the
first respondent, Mr Mzimele, is set aside and subst ituted with the
following order:
a. The plaintiff’s claim for patrimonial damages against the
respondent is dismissed.

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5. There is no order as to costs.
________________
E. Molahlehi
Judge President of the
Labour Appeal Court
Mahalelo ADJP and Tokota AJA concur.

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APPEARANCES:
For the Appellant: D. Crampton SC, instructed by Mdledle
Incorporated (Heads of argument by M. Pillemer
SC)
For the First Respondent: M. Naidoo SC with S. Tshangana, instructed by
Siza Khumalo Attorneys