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[2004] ZACC 4
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Dudley v City of Cape Town and Another (CCT 5/04) [2004] ZACC 4; 2005 (5) SA 429 (CC); 2004 (8) BCLR 805 (CC); [2004] 7 BLLR 623 (CC); (2004) 25 ILJ 991 (CC) (20 May 2004)
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 5/04
LILIAN DUDLEY Applicant
versus
THE CITY OF CAPE TOWN First
Respondent
IVAN TOMS Second Respondent
Decided on : 20 May
2004
JUDGMENT
THE COURT:
[1]
This
is an application for leave to appeal directly to this Court from a decision of
the Labour Court upholding an exception to the
applicant’s statement of
case. Dr Lilian Dudley, the applicant, a black woman who is a medical doctor,
unsuccessfully applied
to the City of Cape Town, the first respondent herein,
for the position of Director: City Health. That position was offered to the
second respondent, Dr Ivan Toms, a white man who is also a medical doctor. The
applicant subsequently challenged the appointment
of the second respondent. The
ensuing dispute was eventually referred to the Commission for Conciliation,
Mediation and Arbitration,
where it could not be resolved. The applicant then
brought an application in the Labour Court seeking, amongst other things, an
order setting aside the appointment of the second respondent and appointing her
to that position.
[2]
In her statement of case,
the applicant alleged that failure to appoint her to the position of Director:
City Health constituted unfair
discrimination, an unfair labour practice, a
breach of the “affirmative action” provisions of the Employment
Equity Act
(“the EEA”)
[1]
and a breach of the City’s constitutional obligations, such as those
created, amongst others, by sections 9(1) and 9(2) of
the
Constitution.
[2]
These allegations
rested principally upon the alleged breach of the “affirmative
action” provisions of the EEA.
[3]
The City of Cape Town took
an exception to the statement of case on various grounds but mainly on the
ground that “affirmative
action” under the EEA is not available to
an individual employee for use as a sword in the prosecution of a claim based on
“affirmative action”. The Labour Court upheld the exception
holding, amongst other things, that the EEA does not establish
an independent
individual right to “affirmative action” and that there is no right
in respect of such a claim of direct
access to the Labour
Court.
[4]
The present application for
leave to appeal is the sequel. The time allowed for the filing of notice to
oppose has expired. None
has been filed. The applicant has also applied to the
Labour Court for leave to appeal to the Labour Appeal Court (“the
LAC”).
That application is conditional upon this Court refusing leave to
appeal directly to it. The Court decided to deal with the matter
summarily
under rule
19(6)(b).
[3]
[5]
This application for leave
to appeal is out of time by some five days. The applicant is also seeking an
order condoning the late
filing of this application. Having regard to the
period of delay and the explanation therefor, the delay in filing this
application
should be condoned.
[6]
There can be no question
that the EEA is a statute that was enacted to give effect to the constitutional
right to equality by, amongst
other things, eliminating unfair discrimination in
the field of employment.
[4]
And its
interpretation and application will ordinarily raise a constitutional
matter.
[5]
The application for leave
to appeal raises important questions concerning the interpretation and the
application of the EEA, in
particular, its “affirmative action”
provisions. But in deciding whether to grant leave to appeal directly to this
Court
it is necessary to consider whether it is in the interests of justice to
do so.
[7]
In deciding what is in the
interests of justice, each case has to be considered in the light of its own
facts. A factor which will
always be relevant is that direct appeals deny this
Court the advantage of having before it the judgments of the LAC on the matters
in issue.
[6]
Other factors include
the importance of the constitutional issues raised, the saving in time and costs
that might result if a direct
appeal is allowed, the urgency, if any, in having
a final determination of the matters in issue and the prospects of
success.
[7]
[8]
In urging this Court to
grant leave to appeal, the applicant alleges that the application for leave to
appeal raises matters of substance
that affect all designated employers and
employees across the country. In addition, the applicant alleges that given the
importance
of the constitutional issues raised, a direct appeal to this Court
will obviate any delay and result in the saving of time and costs.
No doubt
these are relevant considerations in an application for leave to appeal directly
to this Court. But they are not decisive.
They must be weighed against the
need to ensure that the LAC, as the appellate court in labour matters, has had
the opportunity
to express its views on important labour issues such as those
involved in this case.
[9]
The LAC is a specialised
appellate court that functions in the area of labour law. Both the LAC and the
Labour Court were established
to administer labour legislation. They are
charged with the responsibility for overseeing the ongoing interpretation and
application
of labour laws and the development of labour
jurisprudence.
[8]
Effect must be
given to this by ensuring that these courts are not bypassed in matters that
fall within their jurisdiction unless
there are compelling reasons to do
so.
[10]
The EEA is one of the
statutes that fall within the jurisdiction of the Labour Courts. This Court
will no doubt benefit from the
views of the LAC, an appellate court, in labour
matters.
[11]
The applicant has drawn
attention to the fact that there are now two conflicting decisions of the Labour
Courts on the question whether
affirmative action can found a cause of action
under the EEA. The other case is that of
Harmse v City of Cape
Town
[9]
where the Court answered
the question in the affirmative. The applicant submits that it is important
that clarity and certainty
be obtained on this question as soon as possible.
What is important is that the LAC has yet to consider the issue. This conflict
must, in the first instance, be resolved by the LAC which is an appellate court
in labour matters. There is no suggestion that the
LAC cannot deal with this
matter speedily.
[12]
In all the circumstances
the need to have the views of the LAC on the matters raised by this application
outweighs other considerations.
We make it clear, however, that we express no
view on the prospects of success. And we draw attention to the remarks made in
Mkangeli and Others v Joubert and
Others
,
[10]
in which this Court
said:
“This Court may refuse leave to appeal directly to it, not because the
appeal lacks prospects of success, but because it considers
the matter to be one
which ought properly to be dealt with by the Supreme Court of Appeal before it
is called on to consider hearing
the matter. Where that is the case, an order
refusing leave to appeal directly to this Court does not preclude the litigant
from
approaching this Court again for leave to appeal after the Supreme Court of
Appeal has disposed of the matter either by way of a
judgment, or by refusing
the petition for leave to appeal. Should that happen, this Court will consider
the application on its merits
in the light of the decision of the Supreme Court
of Appeal. It is against this background that the application for leave to
appeal
in the present case has to be
considered.”
[11]
These
remarks apply equally to the present application.
[13]
In the result the following
order is made:
(a) The applicant’s failure to comply with Rule 19(2) of the Rules of this
Court is condoned;
(b) The application for leave to appeal directly to this Court is refused.
(c) There will be no order for costs.
Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J,
Ngcobo J, O’Regan J, Sachs J, Skweyiya J, Van der Westhuizen J, Yacoob
J.
[1]
Act 55 of 1998.
[2]
Section 9(1) of the
Constitution states that:
“Everyone is equal before the law and has the right to equal protection
and benefit of the law.”
And section 9(2) of the
Constitution states that:
“Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative
and other
measures designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be
taken.”
[3]
Rule
19(6)(b) of the Rules of the Constitutional Court states that:
“Applications for leave to appeal may be dealt with summarily, without
receiving oral or written argument other than that contained
in the application
itself.”
[4]
Preamble to the EEA.
[5]
See
National Education
Health and Allied Workers Union v University of Cape Town and Others
2003
(3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at paras 14-16;
National Union
of Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd and Another
[2002] ZACC 30
;
2003 (3) SA 513
(CC);
2003 (2) BCLR 182
(CC) at para 15.
[6]
Member of the Executive
Council for Development Planning and Local Government, Gauteng v Democratic
Party and Others
[1998] ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR 855
(CC) at para
32.
[7]
Id
[8]
NEHAWU
at para 30 and
NUMSA
above n 5.
[9]
[2003] 6 BLLR 557
(LC).
[10]
[2001] ZACC 15
;
2001 (2) SA 1191
(CC);
2001
(4) BCLR 316
(CC).
[11]
Id at para 7.