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[2026] ZALCCT 96
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Solidarity obo Benjamin v Department of Correctional Services and Others (C478/2024) [2026] ZALCCT 96 (22 June 2026)
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IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
No:
C478/2024
(1)
Reportable: NO
(2)
Of interest to other Judges: No
22
June 2026
In
the matter between:
SOLIDARITY
OBO BENJAMIN, A
Applicant
and
DEPARTMENT
OF CORRECTIONAL SERVICES
First Respondent
GPSSBC
Second Respondent
COMMMISSIONER
ZUKILE FIHLA
N.O.
Third Respondent
Heard:
05 March 2026
Delivered:
22 June 2026
JUDGMENT
WHITCHER
J
Introduction
[1]
This is a review application in terms of
section 145
of the
Labour
Relations Act, 1995
.
[2]
The application concerns the arbitrator’s dismissal of Ms
Benjamin’s claim that the first respondent (‘the
respondent’) committed an unfair labour practice in
circumstances where
inter alia
the respondent’s
selection panel had strongly recommended her for promotion to the
post of Provisioning Administration Officer:
Logistics Administration
level 7 (Drakenstein Management Area) but the delegated authority
(the Deputy Regional Commissioner) decided
against her promotion
because, in the delegated authority’s view, the appointment
would not be “in line” with
the respondent’s
“EE targets”. The arbitrator accepted the respondent’s
defence that its EEP “focusses”
on national targets and
in terms thereof Coloured females were over-represented in the
occupational level, and, on that basis,
held that the delegated
authority’s decision
aimed at compliance with the
respondent’s equity plan
did not constitute an unfair
labour practice. Moreover, at the time of the arbitration, the post
no longer existed.
Evidence
and submissions adduced in the arbitration
[3]
The post in question was advertised with the closing date of 4
December 2020.
[4]
The following candidates were shortlisted and invited for interviews:
Benjamin (C/F), Booysen (C/F); Dlova (A/F); Hlazo
(A/M); Mdala (A/F),
Mbooi (A/F); and Tomsana (A/F).
[5]
The
delegated authority at time, the Acting Regional Commissioner,
approved the shortlist.
[1]
[6]
The following candidates accepted the invitation and were
interviewed: Benjamin (C/F); Tomsana (A/F); and Mdlala (A/F).
[7]
Following the interviews, the panel recommended Benjamin (C/F). The
report dated
13 May 2022
recorded that “the strongly
recommended candidate Ms Benjamin A (C/F) is in line with the
Regional Equity targets of September
2021 and December 2021 and [is]
more experienced and knowledge[able] in the field of work.”
[8]
Mdlala and Tomsana were described as “suitable”
candidates and respectively recommended as the 2
nd
and 3
rd
candidate.
[9]
The report was submitted to the
Regional
Coordinator: Special
Programs: Western Cape Region and the
Regional
Head: Corporate
Services: Western Cape Region and the delegated authority for their
comments, and ratification.
[10]
The Regional Coordinator: Special Programs: Western Cape Region and
the Regional Head: Corporate Services: Western Cape
Region commented
that in terms of the respondent’s “EEP status report”
for December 2021, Coloured females were
over-represented by 21 and
African females were over-represented by 373.
[11]
The Regional Coordinator: Special Programs (Ms Mahlasela)
nevertheless advised that:
“…
the
delegated official may appoint on merit as there were not suitable
candidates found by the panel from the groups lagging behind
”.
[2]
[12]
However, on 30 May 2022, the Deputy Regional Commissioner (Ms
Mvandaba), determined that:
All
recommended candidates are not in line with EE targets, therefore the
post is to be re-advertised”.
[3]
[13]
Benjamin was not appointed to the post, and it was not re-advertised.
[14]
Further to the above, Benjamin testified that she had performed the
functions of the post in question when the incumbent
was on sick
leave and, at the time of the arbitration, she was still performing
those functions.
[15]
To the extent that equity targets was a relevant consideration, she
referred to the contents of a document discovered
by the respondent,
titled ‘
Quarterly DCS Workforce Representivity Progress
Report…September 2021: Salary Level 7’
(page 70).
[16]
The document reflects two sections, the first titled ‘
Regional
Employment Equity Implementation Gaps
’ and the second
titled ‘‘
National Employment Equity Gaps’
.
[17]
In terms of the first, with reference to the Western Cape:
A/M
and A/F are respectively over-represented by 62 and 99; W/M and W/F
are respectively under-represented by 59 and 45; C/M and
C/F are
respectively
under-represented
by 12 and 48; and I/M and I/F
are respectively over-represented by 2.
[18]
Benjamin contended that the document indicates that provision is made
for regional targets and since the post was a regional
one, the
respondent ought to have considered regional targets with reference
to the Western Cape. In terms of those targets, as
of September 2021,
C/F were under-represented by 48 in the occupational level.
[19]
In its defence, the respondent called two witnesses, Ms Reddy:
Assistant Director HR and Ms Mahlasela: Regional Coordinator:
Special
Programs (
supra
).
[20]
According to Reddy, the respondent’s employment equity
framework included both regional and national targets. She
stated:
“in line with our employment equity plan, we do have regional
and national targets because there may be specific
demographics in a
specific region, but that regional targets are limited to [inaudible]
levels”.
[21]
She said that the post in question no longer exists because some time
after the above recruitment process, it was determined
that a
procurement post at Goodwood Correctional Centre was required rather
than the post in issue. She said there was no mischief
in this
decision – it arose because operational needs in supply chain
management. The Goodwood post was advertised on 30
September 2022.
[22]
Mahlasela testified that a new equity plan which “focussed on
national targets for the positions of PSA and [inaudible…]”
was adopted in October 2021 following consultation with ‘labour”
and, in terms thereof, C/F were over-represented by
21 in the
applicable occupational level.
[23]
She referred to a document titled ‘
Progress Report:
Workforce Profile – December 2021 (Quarter 3) Read with
approved EE plans 2021 to 2024’
(page 71). The contents
record that:
A/M
are under-represented by 258; A/F are over-represented by 373; W/M
are under-represented by 66; W/F are over-represented by
4; C/M are
under-represented by 49; C/F are over-represented by 21; and I/M and
I/F are respectively under-represented by 20 and
5.
[24]
When it was put to her that page 70 (
supra
) had been
applicable because the post was a regional post and the advertisement
and closing date for applications had been November/December
2020,
she maintained that page 71 (
supra
) was the applicable
guide/targets.
[25]
She confirmed the recommendation she made to the delegated authority
regarding the appointment of Benjamin, namely that:
“
The
delegated official may appoint on merit
as
there were not suitable candidates found by the panel from the groups
lagging behind
”.
[4]
[26]
She confirmed that, according to the selection panel’s report,
the panel had considered regional targets. The reports
states:
“
The
strongly recommended candidate Ms Benjamin A (C/F) is in line with
the Regional Equity targets of September 2021
and December
2021
…”
[27]
She also confirmed that the list of shortlisted candidates had been
approved by the relevant authority.
[28]
In response to a question posed by the arbitrator, she suggested that
where a candidate for promotion falls within a
group that is already
adequately represented, the delegated authority may appoint on merit
“based on the urgency of filling
the post”.
[29]
In cross-examination, it was pointed out to her that the EEP
documents discovered by the respondent do not reflect the
alleged
agreement, namely that labour agreed that from October/December 2021,
the “focus” will be only on national
targets.
[30]
As to the delegated authority who decided that Benjamin should not be
promoted, she was not called as a witness to explain
her decision,
which had been vaguely recorded as:
“
All
recommended candidates are not in line with EE targets, therefore the
post is to be re-advertised”.
Analysis
[31]
The Labour Appeal Court in
Department of Rural Development and
Agrarian Reform v General Public Service Sectoral Bargaining Council
and Other
provided the following test for assessing the fairness
of a decision to promote, or not to promote, an employee:
“…
Courts
and arbitrators should be reluctant to interfere with an employer’s
decision to refuse promotion. They will do so only
when the decision
or reasoning is assailable because there is evidence that the
employer acted on the basis of some unreasonable,
irrelevant or
invidious consideration; or the decision was arbitrary, capricious or
unfair; or the employer failed to apply its
mind to the promotion or
acted in bad faith. But equally, where there is no rational
relationship between the decision not to promote,
the purpose of the
promotion and the information upon which the impugned decision is
based, interference with the decision will
be justified. Because
there is ordinarily no right to promotion, arbitrators and courts
should hesitate before appointing the aggrieved
employee to the post.
Such deference, however, will be less compelling where the employer
has unfairly discriminated against an
employee or acted otherwise
egregiously. Likewise, the remedy of instatement might be appropriate
where it will cause no prejudice
to another successful candidate
because the post is vacant; or the employee proves that but for the
unfair conduct he, or she,
would have been appointed.”
[32]
As
to the implementation of affirmative action measures, this court in
Ethekwini
Municipality v Nadasen & others
[5]
held that fairness is the standard by which implementation of an
equity measure/EEP is to be determined (see also
SAPS
v Solidarity obo Barnard
in
which the Constitutional Court held that affirmative action measures
must be rationally implemented and that numerical targets
cannot be
applied in an absolutely rigid manner).
[33]
Based
on Benjamin’s grounds of review, the test in
Sidumo
dictates the resolution of the controversy, i.e. was the decision one
to which no reasonable arbitrator could come on the legal
principles
listed above and the evidence and issues that served before the
arbitrator? At the heart of the exercise is a fair reading
of the
award in the context of these factors and an even-handed assessment
of whether such conclusions are untenable. Only if the
conclusion/s
is/are untenable is a review and setting aside warranted.
[6]
[34]
As
indicated earlier on, in rejecting Benjamin’s claim, the
arbitrator accepted the respondent’s defence that its EEP
“focussed” on national targets and in that regard
Coloured females were over-represented in the applicable occupational
level, and on that basis held that the delegated authority’s
decision
aimed
at compliance with the respondent’s equity plan
could
not constitute an unfair labour practice. Moreover, the post no
longer existed.
[7]
[35]
To my mind, the arbitrator’s reasoning and conclusion is
untenable in the context of
the
following material factors.
[36]
Firstly,
Benjamin, as she was enjoined to do, established a
prima
facie
case.
She established that (i) she met all the requirements of the post;
(ii) she had acted in the post and at the time of
the arbitration
hearing, she was still performing the functions associated with the
post; (iii) following an enquiry by a panel
of adjudicators, it was
determined that she was the best candidate for the post and the panel
“strongly recommended”
her promotion; (iv) an authorising
official had advised the delegated authority that she can be promoted
on merit “
as
there were not suitable candidates found by the panel from the groups
lagging behind”;
(v)
under cross-examination, Reddy agreed that the respondent’s EEP
provides for regional targets; and in that regard, the
documents
discovered by the respondent indicated that just seven months prior
to the decision of the panel, C/F were under-represented
by 48 in the
occupational level.
[37]
The respondent’s rebuttal failed to establish that the
delegated authority, in arriving at her decision, considered
the
strong recommendation of the selection panel (a body specially
mandated to, and best suited to, assess the suitability of
candidates)
and
considered her fellow authority’s
advice.
[38]
The evidence instead indicated that the delegated authority
considered only numerical targets, and at that, questionable
targets.
In this regard, while Mahlasela claimed there had been an “agreement”
to “focus on national targets”,
she failed to
substantiate this claim in the face of Reddy’s evidence was
that the respondent’s EEP provided for regional
targets.
[39]
Even if it had been reasonable to accept Mahlasela’s claim, the
rebuttal offered no evidence that when the delegated
authority made
her decision not to promote Benjamin and re-advertise the post, she
had determined that there were
realistic prospects
of finding a suitable candidate to fill the position from within the
ranks of the under-represented group.
[40]
In the context of the facts that served at the time, common sense and
fairness had dictated that numerical targets was
a neutral factor,
and therefore the selection fell to be determined on merit.
[41]
For all these reasons, a reasonable arbitrator would have found that
the employer’s decision not to promote Benjamin
to the post was
irrational, capricious and unfair.
[42]
As to the fact that the post no longer exists, that was an irrelevant
consideration. The decision not to promote Benjamin
was not based on
supply chain management’s decision that it instead needed a
procurement post at Goodwood, an event which
occurred long
afterwards.
[43]
The question now is the appropriate remedy and whether to remit this
issue to the bargaining council. Given the need
for finality and my
view that I have sufficient facts to make an appropriate order, I see
no reason for a remittal.
[44]
Benjamin
contends that she is entitled to ‘protected promotion’. I
questioned her counsel about this because I know
of no legal basis in
common law or statute for such a concept. He provided none. As
indicated in
KwaDukuza
Municipality v SALGBC and Others
(2009)
30 ILJ 356 (LC) so-called protected promotion is merely a disguised
form of compensation. Accordingly, the issue comes down
to the
quantum of compensation.
[45]
Given the finding that a reasonable arbitrator would have found that
the employer’s decision not to promote Benjamin to the
post was
irrational, capricious and unfair, in my view Benjamin is entitled to
compensation equivalent of 12 months remuneration
calculated at her
rate of remuneration on the date the unfair labour practice arose,
which was 30 May 2022.
[46]
As to costs, in my view Solidarity is entitled to their costs on
account of the respondent’s weak defence.
[47]
I therefore make the following order:
(a)
The award of the third respondent is reviewed and set aside and
substituted with an award that the first respondent committed
an
unfair labour practice when it decided not to promote the applicant
(Benjamin) to the post of post of Provisioning Administration
Officer: Logistics Administration level 7 (Drakenstein Management
Area).
(b)
The first respondent is ordered to pay Benjamin compensation
equivalent of 12 months remuneration calculated at her rate
of
remuneration on the date the unfair labour practice arose, which was
30 May 2022.
(c)
The first respondent shall pay Solidarity’s costs in these
proceedings.
Benita
Whitcher
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
D Groenewald, instructed by Serfontein
Viljoen & Swart
For
the First Respondent:
J Swanson
, instructed by State Attorney,
Cape Town
[1]
Ms.
Benjamin’s testimony to this effect was not disputed.
[2]
Emphasis
added.
[3]
Emphasis
added.
[4]
Emphasis
added.
[5]
(2021)
42 ILJ 1480 (LC).
[6]
Makuleni
v Standard Bank of South Africa Ltd and Others
(2023)
44 ILJ 1005 (LAC).
[7]
Emphasis
added.