THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  337/07

In the matter between:

MARTIN GORDON                                                                       APPELLANT

v

DEPARTMENT OF HEALTH: KWAZULU-NATAL                   RESPONDENT

Neutral citation:
Gordon v Department of Health (337/2007) [2008]
ZASCA 99 (17 September 2008).

Coram:
Scott, Cloete, Mlambo, Maya JJA et Leach AJA
Heard:
16 May 2008
Delivered:
17 September 2008

Summary:   Practice – Non Joinder – direct and substantial interest – meaning of – relief
sought relevant to enquiry – decision of Labour Appeal Court reversed.
Affirmative Action – Meaning of ‘measures designed to . . .’ in s 8(3)(a) of Interim Constitution
– Rational relationship of measures to objectives examined – ad hoc conduct not a measure
as contemplated in s 8(3)(a) – such conduct inherently arbitrary and amounting to unfair
labour practice within meaning of Item 2(1)(a) of Schedule 7 of Labour Relations Act 66 of
1995.
______________________________________________________________

ORDER
______________________________________________________________
On appeal from:  The Labour Appeal Court, (Zondo JP, Jappie and Basson
AJJA sitting on appeal from the Labour Court).

1.
The appeal succeeds with costs including the costs of two counsel and
the order of the Labour Appeal Court is set aside.

2.
In its place the following order is substituted:

‘The appeal succeeds with costs. The order of the Labour Court is set
aside and the following order is substituted:

(a)
It is declared that the appointment of Mr Mkongwa to the post of
Deputy Director Administration: Greys Hospital instead of the applicant
constituted an unfair labour practice as envisaged by Item 2(1)(a) of
Schedule 7 of the Labour Relations Act 1995, in that it discriminated
unfairly against the applicant.

(b)
The respondent is ordered to pay the applicant the difference between
what he would have earned had he been appointed to the said post on
the effective date 1 June 1996 and what he actually earned for the
period 1 June 1996 to the date of his retirement on 28 February 2003,
together with interest at the prescribed legal rate calculated from the
date on which each monthly salary payment became due until date of
payment.

(c)
In the event the parties are unable to agree the amount due to the
applicant they are granted leave to approach this court on the same
papers, duly supplemented in so far as necessary, for an order
determining the amount due.

(d)
The respondent is ordered to pay the applicant’s costs.’

______________________________________________________________

JUDGMENT
______________________________________________________________
MLAMBO JA (SCOTT; CLOETE; MAYA JJA; LEACH AJA CONCURRING)

[1] This is an appeal, with leave of this court, against the judgment of the
Labour Appeal Court (Zondo JP, Jappie and Basson AJJA) dismissing an
appeal to that court against the judgment of the Labour Court (Pillay J) which
had dismissed the appellant’s claim. The judgment of the Labour Court has
been reported, see Gordon v Department of Health, KwaZulu-Natal (2004) 25
ILJ 1431 (LC).

[2] The respondent, on 11 April 1996, advertised the post of Deputy
Director: Administration: Greys Hospital: Pietermaritzburg. The appellant, a
white male and Mr Z Mkongwa, a black male, both employees of the
respondent, were amongst the applicants. The appellant had started working
for the respondent in February 1967 as an assistant administration clerk and
had progressed to the positions of assistant senior administration clerk in
1972, administration officer in 1978, senior administration officer in 1985 and,
in 1992, was promoted to the position of assistant director – Midlands Hospital
Complex comprising Fort Napier hospital, Townhill and Umgeni’s C and R
Centres. He occupied this position when he applied for the advertised
position. On the other hand Mr Mkongwa had started his career with the
respondent (at Edendale Hospital) in June 1974 as an assistant administrator
and had progressed to the position of administration officer in June 1989. He
was in that position when he applied for the advertised position having
obtained an Honours degree in Administration.

[3] The selection panel decided, after interviewing all candidates, that the
appellant was the most suitable for the post as he was already administering
three hospitals at the time. The panel also found that he had exhibited strong
leadership, planning and control competencies which they did not find in the

other candidates including Mr Mkongwa. The panel recommended that the
appellant be promoted to the post which recommendation was endorsed by
Professor Greene-Thompson, the head of the Department of Health in the
province. The recommendation was then conveyed to the Provincial Public
Service Commission by the respondent. It is not in dispute that, in its letter to
the Commission, the respondent recorded that the appellant was found
suitable with due regard to five agreed criteria. The Commission did not
accept the respondent’s recommendation for the appellant’s appointment and
directed the respondent to appoint Mr Mkongwa instead. It stated that this
directive was based on Mr Mkongwa’s ‘academic qualifications, experience
and the constitutional imperative to promote representivity in the public
service’. The respondent then appointed Mr Mkongwa to the post.

[4] The
appellant,
aggrieved
by
his
non-appointment,
instituted
proceedings in the Labour Court against the respondent claiming that he had
been discriminated against unfairly on the arbitrary grounds of his race and
colour and that this was an unfair labour practice. He claimed protective
promotion, by way of relief, with effect from 1 June 1996, the date on which he
contended he should have been appointed. Protective promotion is described
in paragraph 9 (1)(c), part B.VI/III of the Public Service Commission Staff
Code as follows: ‘Protective Promotions are effected on the recommendation
of a Commission to protect the position of officers and employees – . . . who
are found to have been prejudiced in the filling of a promotion post after such
a post had been filled.’ This in essence amounts to providing all the benefits
of the promotion post to one employee without actually appointing him thereto
with the consequence that the appointment of another employee to that post
remains intact.

[5] The Labour Court held that appointing the appellant to the post would
not have given effect to the ‘constitutional imperative’ of promoting equality
and transforming the public service, and that for that reason he could not be
regarded as the most suitable candidate. The Labour Court concluded that
the failure to appoint the appellant did not amount to unfair discrimination and

consequently dismissed his claim. The appellant’s claim and the basis upon
which it was dealt with by the Labour Court were not considered by the
Labour Appeal Court (LAC) as that court, having invited the parties to address
it on the non-joinder of Mr Mkongwa in the proceedings, reasoned that in the
event of the appellant’s contention being upheld, ie that he was more suitable
for appointment than Mr Mkongwa, this would have amounted to
Mr Mkongwa’s appointment being ‘a wrong appointment’. This, concluded the
LAC, meant that Mr Mkongwa had an interest in the proceedings and that the
failure to join him deprived him of the opportunity to also have his say. This
led the LAC to conclude that the appellant’s failure to join Mr Mkongwa was
fatal and it dismissed the appeal.

[6] The LAC reached its conclusion by relying, amongst others, on its
earlier decision in Public Servants Association v Department of Justice (2004)
25 ILJ 692 (LAC) in which it had rejected an appeal on a similar basis. In that
matter the LAC upheld a decision of the Labour Court which had on review
set aside an arbitration award of the Commission for Conciliation Mediation
Service of South Africa (CCMA). The CCMA had ruled that the Department of
Justice had committed an unfair labour practice by not appointing the
appellants and instead appointing employees who were alleged to have been
far less experienced. The Department of Justice had justified its appointment
of the successful appointees on the basis that it was advancing representivity
in the department. That is the stance of the respondent in this case.

[7] In Public Servants Association v Minister of Justice as here, the
appellants had not joined the successful appointees. There the LAC reasoned
that the appellants’ claim that they, and not the successful appointees, were
suitable for appointment created a dilemma for the Department of Justice
regarding the correctness of its decision not to appoint the appellants. The
LAC referred to Amalgamated Engineering Union v Minister of Labour 1949
(3) SA 637 (A). In that matter a trade union had instituted proceedings
seeking the reversal of a decision by the Minister of Labour terminating the
appointment of an arbitrator in a dispute between the union and its members

on the one hand and their employer on the other. The union had not joined
the employer in the litigation. Fagan AJA restated the principle that a third
party must be joined in proceedings if he is shown to have a direct and
substantial interest in the subject matter of the litigation. He found in that
matter that the employer had a direct and substantial interest in the litigation
as it would have had to comply with the arbitrator’s award in the event of the
arbitrator ruling in favour of the union and its members. Fagan AJA also
rejected submissions that the employer, though not cited, was aware of the
proceedings as it had been given informal notice thereof. The LAC found that
the facts in the Amalgamated Engineering Union case were analogous. The
LAC reasoned that, notionally, this gave rise to a situation where the
successful appointees, if removed from their posts as per the award of the
CCMA, could themselves challenge their removal from their posts and, in the
event of them being successful, this could potentially place the Department in
an untenable position. This situation, concluded the LAC, demonstrated that
the successful appointees had a direct and substantial interest in the matter
and that failure to join them was fatal to the appellants’ case.

[8] The LAC then went on to consider the question whether the successful
appointees should ‘at least’ have been afforded an opportunity to be heard
even if there may have been no obligation to join them. In this regard the LAC
referred to Du Preez and Another v Truth and Reconciliation Commission
1997 (3) SA 204 (A)1 and to Traub and Others v Administrator, Transvaal
1989 (1) SA 397 (W).2 In the Traub matter Goldstone J had set aside a

1 Particularly to the statement at 230I-231A that: ‘In my view, the solution to the problems
raised by the issues in this case may be found in the common law, and more particularly the
rules of the common law which require persons and bodies, statutory and other, in certain
instances to observe the rules of natural justice by acting in a fair manner. In recent years our
law in this sphere has undergone a process of evolution and development, focusing upon that
principle of natural justice encapsulated in the maxim audi alteram partem (which for the sake
of brevity I will call the “audi principle'”).’
And at 231F that: ‘The audi principle is but one facet, albeit an important one, of the general
requirement of natural justice that in the circumstances postulated the public official or body
concerned must act fairly.’
2 Particularly to the statement in 400I-J that: ‘A decision that a professional person is
unsuitable for a post is potentially of the utmost importance and will, if it remains, be a
permanent blot on his good name.’
And further at 401C-D that: ‘Where the suitability of a person is the issue, and an adverse
decision has serious consequences for that person in relation to his application and in relation

decision of the Director of Hospital Services in the Transvaal turning down
applications for appointment by certain doctors without giving them a hearing,
a decision confirmed on appeal albeit for different reasons.3 The Du Preez
matter dealt with the rights and interests of certain persons who were not
given notice of proceedings in which allegations about their alleged complicity
in certain criminal actions were to be aired. The LAC found that by analogy,
as the successful appointees had already been appointed to their posts when
the arbitration commenced in the CCMA, a finding by the CCMA that they
were not suitable for appointment to those positions ‘could no doubt
detrimentally affect their existing rights and interests’ and that ‘the duty to act
fairly obliged the (CCMA) commissioner not to make such a finding without
complying with the audi alteram partem rule or without having them joined in
the proceedings first’. The LAC further rejected a submission that it was not
necessary to join the successful appointees as the relief sought was not
directed at the setting aside of their appointments. In this regard the LAC
found that joining the successful appointees was not solely dependent upon
the question of relief. The LAC stated at 705A-B:

‘Even if no relief were sought against the appointees, they should have been joined
or at least should have been given an opportunity to be heard before the
commissioner could make the finding that “as an objective fact” they are not suitable
for the posts to which they were appointed. This is so because such a finding would,
with or without any relief being sought against the appointees, affect their rights and
interests adversely.’

For these reasons the LAC dismissed the appeal.

[9] The Du Preez and Traub decisions had nothing to do with non-joinder,
a fact acknowledged by the LAC. They were concerned primarily with the audi
alteram principle in circumstances where a public body had failed to afford

to his career, then I have no doubt that in the absence of a clear provision to the contrary in
the statute he must be entitled to be heard before he is made to suffer an adverse decision.’

3 See Administrator, Transvaal v Traub 1989 (4) SA 731 (A).

certain individuals a hearing in matters in which their interests and rights were
at stake. The issue in our matter, as it is in any non-joinder dispute, is whether
the party sought to be joined has a direct and substantial interest in the
matter. The test is whether a party that is alleged to be a necessary party, has
a legal interest in the subject matter, which may be affected prejudicially by
the judgment of the court in the proceedings concerned.4 In the Amalgamated
Engineering Union case (supra) it was found that ‘the question of joinder
should . . . not depend on the nature of the subject matter . . . but . . . on the
manner in which, and the extent to which, the court’s order may affect the
interests of third parties’.5 The court formulated the approach as, first, to
consider whether the third party would have locus standi to claim relief
concerning the same subject-matter, and then to examine whether a situation
could arise in which, because the third party had not been joined, any order
the court might make would not be res judicata against him, entitling him to
approach the courts again concerning the same subject-matter and possibly
obtain an order irreconcilable with the order made in the first instance.6 This
has been found to mean that if the order or ‘judgment sought cannot be
sustained and carried into effect without necessarily prejudicing the interests’
of a party or parties not joined in the proceedings, then that party or parties
have a legal interest in the matter and must be joined.7

[10] All the cases I have referred to also illustrate the point that the order or
judgment of the court is relevant to the question whether a party has a direct
and substantial interest in the subject matter of any proceedings. It is so that
in the course of its reasoning a court makes findings and expresses views
which do not form part of its judgment or order. An example in point in the
employment arena concerns a potential finding by a court that a successful
appointee was not suitable for appointment. The ‘unsuitable’ appointee has no
legal interest in the matter if the order will be directed at the employer (the

4 Bowring NO v Vrededorp Properties CC 2007 (5) SA 391 (SCA) para 21.
5 At page 657.
6 See also Collin v Toffie 1944 AD 456 at 464; Home Sites (Pty) Ltd v Senekal 1948 (3) SA
514 (A) at 521A and Peacock v Marley 1934 AD 1 at 3; Burger v Rand Water Board 2007 (1)
SA 30 (SCA) para 7.
7 Bekker v Meyring, Bekker’s Executor (1828–1849) 2 Menz 436.

author of the unsuitable appointment) to compensate the ‘suitable’ but
unsuccessful applicant. Of course the successful but ‘unsuitable’ appointee
will always have an interest in the order to confirm his/her suitability for the job
but this is not a direct and substantial interest necessary to found a basis for
him or her to be joined in the proceedings. In a situation where a number of
applicants compete for a position, they provide information to the prospective
employer to influence the decision in their favour. That is as far as they can
take it. Once the employer selects from amongst them it is up to the employer
to defend its decision if challenged. This is because the employer, as the
directing and controlling mind of the enterprise which is vested with the
managerial prerogative to manage it, has a legal interest in the confirmation of
its decision as it faces a potential order against it. The successful appointee
can only have a legal interest in the proceedings where the decision to
appoint him is sought to be set aside which can lead to his removal from the
post. He becomes a necessary party to the proceedings because the order
cannot be carried into effect without profoundly and substantially affecting
his/her interests.

[11] As already pointed out, the relief sought in this matter and in Public
Servants Association v Minister of Justice (supra) was not directed at the
setting aside of the Department’s decisions and the reversal of the
appointment. The LAC was thus incorrect in finding that the facts in the
Amalgamated Engineering Union case were analogous to those in the Public
Servant’s case. In the Amalgamated Engineering Union case the employer
who had not been joined would have been prejudiced, as found by Fagan
AJA, because it had a direct and substantial interest in the appointment of an
arbitrator regarding a dispute it had with its employees and the union. In the
Public Servants case there was no potential prejudice to the successful
appointees as no relief was directed at them. The LAC further erred in finding
that the relief sought was irrelevant in considering whether a party had a
direct and substantial interest in a matter. The cases referred to by the LAC
do not support this conclusion and as pointed out above they dealt with a
completely separate and unrelated principle. In the circumstances the LAC’s

decision that Mr Mkongwa had a direct and substantial interest in the matter
and that the failure to join him was fatal to the appellant’s case must be
reversed.

[12] In the circumstances it becomes necessary to consider the appellant’s
claim, which was not dealt with by the LAC, that he was the victim of unfair
racial discrimination when the respondent appointed Mr Mkongwa and not
him. This claim is based on Item 2(1)(a) of Schedule 7 of the Labour Relations
Act 66 of 1995 (LRA), which provides:

‘For the purpose of this item, an unfair labour practice means any unfair act or
omission that arises between an employer and an employee, involving the unfair
discrimination, either directly or indirectly, against an employee on any arbitrary
ground, including, but not limited to race, gender, sex, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief, political opinion,
culture, language, marital status or family responsibility.’

The appellant contends that in the absence of a rational policy, plan or
programme which justified his non appointment the respondent acted in an
inherently arbitrary manner, in failing to appoint him based on his race and
colour. This, he says, violated Item 2(1)(a) and therefore was unfair, even if
this occurred within the constitutional imperative to advance persons, groups
and/or categories of people previously disadvantaged by unfair discrimination.

[13] On the other hand, the respondent’s case is that objectively viewed the
appointment of Mr Mkongwa is immune from judicial scrutiny as it was a
measure in itself designed to achieve the constitutional imperative of
promoting equality and transforming the public service. It was submitted that
Mr Mkongwa was a black person who was obviously disadvantaged by past
unfair discrimination and his preference over the appellant was a measure, in
itself without more, designed to achieve his advancement to enable his full
and equal enjoyment of all rights and freedoms in the Constitution. This, it
was submitted, was the objective of his appointment, which is the important
element in the process and not whether there was an overarching policy, plan

or programme in terms of which the appointment was made. It was further
submitted that in any event it was not obligatory to have a programme, plan or
policy in place to advance this constitutional imperative.

[14] The question therefore is whether the appointment of Mr Mkongwa, a
black candidate instead of the appellant, a white candidate, found more
suitable by the selection panel, is immunised from judicial scrutiny by the
respondent’s ipse dixit, without more, that it was an affirmative action
appointment in furtherance of the constitutional imperative of promoting
equality.

[15] Item 2(1)(a) must be read with Item 2(2)(b) in the same schedule which
provides:

‘For the purposes of sub-Item (1)(a)–
(b)
an employer is not prevented from adopting or implementing employment
policies and practices that are designed to achieve the adequate protection and
advancement of persons or groups or categories of persons or groups or categories
of persons disadvantaged by unfair discrimination, in order to enable their full and
equal enjoyment of all rights and freedoms.’

These provisions are clearly based on s 8 of the Interim Constitution8 which
was applicable at the time. Section 8 provided:

‘Section 8.
Equality
1.  Every person shall have the right to equality before the law and to equal
protection of the law.
2.  No person shall be unfairly discriminated against, directly or indirectly, and,
without derogating from the generality of this provision, on one or more of the
following grounds in particular: race, gender, sex, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief, culture or language.
3.  (a)  This section shall not preclude measures designed to achieve the adequate
protection and advancement of persons or groups or categories of persons

8 The Constitution of the Republic of South Africa Act 200 of 1993.

disadvantaged by unfair discrimination, in order to enable their full and equal
enjoyment of all rights and freedoms.’9

[16] The first issue requiring attention is the proper approach to s 8 and
Items 2(1)(a) and 2(2)(b). It can hardly be contested that the appellant was
discriminated against on the basis of his colour and race. The issue is
whether this was unfair and therefore not countenanced by s 8.10 The thrust of
s 8 was to ‘guarantee both equality before the law and equal protection of the
law, and prohibits unfair discrimination both generally and on the particular
grounds of race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture or language’.11
The section further makes provision for measures designed for the
advancement of persons and groups disadvantaged by past racial
discrimination. This, in essence permits unequal treatment where the
objective is to promote equality.12 This has been found to contemplate the
substantive form of equality as opposed to the formal type. See Minister of

9 Section 8 was replaced by s 9 of the Constitution of the Republic of South Africa 108 of
1996 which provides:
Section 9 of the Constitution: ‘Equality
(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 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) 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.’
10 This approach is no different to what s 9(5) of the Constitution envisages as postulated in
Stoman v Minister of Safety and Security 2002 (3) SA 468 (T) at 476J-477A.
11 Etienne Mureinik: ‘A Bridge to where? Introducing the Interim Bill of Rights’ South African
Journal of Human Rights (1994) Vol 10 p 31.
12 See Catherine Albertyn and Janet Kentridge: ‘Introducing the right to equality in the Interim
Constitution’ South African Journal of Human Rights (1994) Vol 10 p 149: ‘This clause
(s 8(3)(a)) makes it clear that the prohibition of discrimination on the grounds listed in s 8(2)
does not require the immediate abandonment of all consciousness of the named
classifications. It acknowledges that the achievement of equality will require remedial
measures which are geared to redressing both individual and group disadvantage created by
a history of oppression and apartheid.’ (at 172).

Finance v Van Heerden 2004 (6) SA 121 (CC) para 26-27 where Moseneke J
states:

‘[26]
The jurisprudence of this Court makes plain that the proper reach of the
equality right must be determined by reference to our history and the underlying
values of the Constitution. As we have seen a major constitutional object is the
creation of a non-racial and non-sexist egalitarian society underpinned by human
dignity, the rule of law, a democratic ethos and human rights. From there emerges a
conception of equality that goes beyond mere formal equality and mere non-
discrimination which requires identical treatment, whatever the starting point or
impact. Of this Ngcobo J, concurring with a unanimous Court, in Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and Tourism and Others observed that:
“In this fundamental way, our Constitution differs from other constitutions which
assume that all are equal and in so doing simply entrench existing inequalities. Our
Constitution recognises that decades of systematic racial discrimination entrenched
by the apartheid legal order cannot be eliminated without positive action being taken
to achieve that result. We are required to do more than that. The effects of
discrimination may continue indefinitely unless there is a commitment to end it.”
[27] This substantive notion of equality recognises that besides uneven race, class
and gender attributes of our society, there are other levels and forms of social
differentiation and systematic under-privilege, which still persist. The Constitution
enjoins us to dismantle them and to prevent the creation of new patterns of
disadvantage . . ..’13

[17] Affirmative action is unquestionably the most embraced means to
promote equality and it entails in essence the upliftment of those who were
disadvantaged by unfair discrimination. Mahomed J commented in Shabalala
v Attorney-General, Transvaal 1996 (1) SA 725 (CC) para 16 that:

13 See also the statement by Goldstone J in Republic of South Africa v Hugo 1997 (6) BCLR
708 (CC) at 729F-H that: ‘In s 8(3), the interim Constitution contains an express recognition
that there is a need for measures to seek to alleviate the disadvantage which is the product of
past discrimination. We need, therefore, to develop a concept of unfair discrimination which
recognises that although a society which affords each human being equal treatment on the
basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting upon
identical treatment in all circumstances before that goal is achieved.’

‘Viewed from this angle therefore it is clear that the Constitution aims to redress
historical inequities and imbalances. It requires as a constitutional imperative that the
public service be broadly representative of the South African community. The
attainment of this constitutional objective, in particular in the public service would be
impossible without a programme of affirmative action.’

[18] The question that arises in our case is whether the appointment of
Mr Mkongwa was a measure within the contemplation of Item 2(2)(b) read in
the context of s 8(3)(a). The respondent submits that it was such a measure
even though it was ad hoc. The resolution of this question involves an
investigation whether the appointment in itself was designed to achieve the
constitutional imperative of promoting equality. Section 8(3)(a) contemplates
‘measures’ whilst Item 2(2)(b) contemplates ‘policies’ and ‘practices’ (as the
means) to advance the constitutional imperative and both provide that these
must be ‘designed to achieve . . . adequate protection and advancement . . ..’
It has been found that measures that are found to be inherently arbitrary
and/or irrational cannot be said to have been designed to achieve the
objective of the constitutional imperative of equality. The decision in Stoman v
Minister of Safety and Security 2002 (3) SA 468 (T) illustrates this at p 480A-
D where the court said:

‘I am respectfully in agreement with the learned Judge in the Public Servants
Association case that a policy or practice which can be regarded as haphazard,
random and overhasty, could hardly be described as measures designed to achieve
something. There must indeed be a rational connection between the measures and
the aim they are designed to achieve. This view has also been expressed by
academic writers, such as Mureinik in “A Bridge to Where? Introducing the Interim
Bill of Rights” (1994) 10 SAJHR 31. I accept, at least for present purposes, that
affirmative action measures are indeed reviewable, as found by Swart J in the Public
Servants Association case, inter alia based on the opinion expressed by Mureinik,
and argued on behalf of the applicant in this case. In order to honour constitutional
ideals and values, and to strive to truly move towards the achievement of substantive
equality, proper plans and programs must be designed and put into place. Mere
random and haphazard discrimination would achieve very little, if anything, and might
be counter-productive.’

See also Minister of Finance v Van Heerden (supra) where Moseneke J at
139 said:

‘[41]
The second question is whether the measure is “designed to protect or
advance” those disadvantaged by unfair discrimination. In essence, the remedial
measures are directed at an envisaged future outcome. The future is hard to predict.
However, they must be reasonably capable of attaining the desired outcome. If the
remedial measures are arbitrary, capricious or display naked preference they could
hardly be said to be designed to achieve the constitutionally authorised end.
Moreover, if it is clear that they are not reasonably likely to achieve the end of
advancing or benefiting the interests of those who have been disadvantaged by
unfair discrimination, they would not constitute measures contemplated by s 9(2).’

[19] Our jurisprudence shows that our courts have focused on the question
whether policies, plans or programmes put up as measures designed to
promote equality were indeed capable of achieving that objective. In Motala v
University of Natal 1995 (3) BCLR 374 (D) what was sought to be impugned
was a plan by the University to limit the number of Indian students in
preference to black students, which recognised the several disadvantages
suffered by black students in particular. Hurt J had this to say about that
policy:

‘On the papers before me I was satisfied that the policy described by the deponents
for the respondent was a “measure designed to achieve the adequate protection and
advancement of . . . a group . . . of persons [black students] disadvantaged by unfair
discrimination.’ At p 383B-C.

[20] In Stoman v Minister of Safety and Security (supra) a white police
officer claimed that the failure to appoint him to an advertised post and the
appointment instead of a black officer in terms of an Equity Plan of the South
African Police Service amounted to unfair racial discrimination as he was the
most suitable for the position. The Equity Plan was found by Van der
Westhuizen J to be bona fide and designed to contribute to the promotion of
equality and the protection and advancement of persons previously

disadvantaged by unfair discrimination.14 In Minister of Finance v Van
Heerden (supra) at issue were certain rules of the Political Office Bearers
Pension Fund which provided for differentiated employer contributions in
respect of members of Parliament. The objective of the rules was to
‘ameliorate past disadvantage related to the pension benefits need of new
political office bearers’. Having analysed the rules of the fund Moseneke J
stated at p 142:

‘[52] I am satisfied that the evidence demonstrates a clear connection between the
membership differentiation the scheme makes and the relative need of each class for
increased pension benefits. The scheme was designed to distribute pension benefits
on an equitable basis with the purpose of diminishing the inequality between
privileged and disadvantaged parliamentarians. In that sense the scheme promotes
the achievement of equality. It reflects a clear and rational consideration of the need
of the members of the Fund and serves the purpose of advancing persons
disadvantaged by unfair discrimination.’

[21] In Public Servants Association of South Africa v Minister of Justice
1997 (3) SA 925 (T) (referred to in Stoman) the Department of Justice had
earmarked some posts in terms of an interim arrangement to implement
affirmative action before the completion of a rationalisation process in the
department and in the absence of a finalised affirmative action plan or
programme. The only persons who were invited to apply for the earmarked
posts and to the interviews were women. No explanation was however
advanced for the basis upon which the posts were thus earmarked. The
earmarking was criticized by the court as haphazard, random and over-hasty.
For this reason the court was of the view that the earmarking of the posts
amounted to an ‘untrammelled discretion to earmark posts for designated
groups without any overall plan or policy’. In this regard the court reasoned

14 The learned judge stated at 483D: ‘My concluding impression is that there is nothing before
me indicating that the relevant policies and guidelines of the SAPS regarding measures to
achieve equality and representivity do not comply with the constitutional requirements
emanating from s 9(2). These policies and guidelines seem to have been created bona fide
and with the intention of achieving the relevant ideals. In view of what is before me, I am of
the opinion that there are measures designed to contribute to the promotion of equality in
general and specifically to the protection and advancement of persons or categories of
persons previously disadvantaged by unfair discrimination.’

that s 8(3)(a) required affirmative action measures to be designed to achieve
the adequate protection and advancement of disadvantaged groups which
was different to haphazard and random action.15

[22] It cannot be disputed that in the cases referred to above what was at
issue were plans, policies and/or programmes envisaging a pattern of conduct
whose objective was to promote equality. Those measures that survived
judicial scrutiny are those found to have been rationally connected to their
objective. See Albertyn and Kentridge (supra) at p 173 that:

‘The better view is that the use of the word “designed” as opposed to “aimed” imports
the requirement of a rational relationship between means and ends. In other words, it
is not sufficient that the purpose of the measures in question is to redress past
discrimination – the means selected to effect that purpose must be reasonably
capable of doing so. The latter reading is preferable because it is more likely to
ensure that affirmative action programmes are carefully constructed in ways which
are best able to accomplish what they set out to achieve.’

It is apparent from the cited cases that the plans and/or policies at issue were
subjected to scrutiny to determine if they were rationally connected with the
constitutional imperative of promoting and/or achieving equality and that ad
hoc and random action was found to be incapable of meeting the objective.
From this it can be deduced that properly formulated programmes go a long
way to satisfying the requirement of rationality. This is so since a properly
crafted programme or policy provides a basis upon which it can be measured
as to whether it meets the constitutional objective. In Public Servants
Association of South Africa v Department of Justice there was no policy or
plan in place but an ad hoc arrangement which was found to be random and
haphazard and therefore not designed to achieve the required purpose. See
also Eskom v Hiemstra NO (1999) 20 ILJ 2362 (LC). This, in my view, clearly
shows that the term ‘measures’ as set out in s 8(3)(a) as well as the term
‘practices’ and ‘policies’ in Items 2(2)(b) of Schedule 7 of the LRA mean

15 At 991I-J.

something much more than mere ad hoc or random action as we have in this
case.

[23] The injunction that the public service must be broadly representative is
an important one. It enjoins those in charge to strive towards representivity.
This in my view calls for attention to be focused on the respects in which the
service is not representative and what measures should be implemented to
achieve the required representivity. This suggests that a properly considered
policy or plan to address the situation as opposed to ad hoc means is the way
to go to achieve representivity. It must therefore be so that ad hoc and
random action is impermissible. Compare Independent Municipal and Allied
Workers Union v Greater Louis Trichardt Transitional Local Council (2000) 21
ILJ 1119 (LC) at 1125 para 19 where it was said:

‘There appears to be no doubt therefore that for affirmative action to survive judicial
scrutiny the following is relevant:
19.1
there must be a policy or programme through which affirmative action is to be
effected;
19.2
the policy or programme must be designed to achieve the adequate
advancement or protection of certain categories of persons or groups disadvantaged
by unfair discrimination.’

[24] In casu the appointment of Mr Mkongwa is sought to be justified on the
basis that it was a measure in itself of advancing Mr Mkongwa who was
disadvantaged by past discrimination. Mr Mkongwa’s race was therefore the
only basis on which his appointment was sought to be linked to the
constitutional imperative by the Commission even though the selection panel
did not support it. From the evidence it is clear that the respondent did not
have a policy or overarching plan of affirmative action. The Secretary of the
Commission, Dr Ndlovu, who testified, was unable to provide a coherent basis
for rejecting the selection panel’s recommendation. His view was simply that
this was a case where affirmative action had to be implemented. He could not
provide any evidence of guidelines by his Commission to the respondent in
terms of which representivity was to be addressed in the recruitment process.

His evidence demonstrates that the Commission itself had not applied its
mind to the implementation of affirmative action: they simply held a view in
this case that a black candidate should be appointed. He could provide no
evidence of how that appointment would have made the respondent more
representative, nor was he able to provide a factual basis of the
demographics which prompted the Commission to impose its view on the
respondent.

[25] It has to be pointed out, as appears from the cases cited, that the
policies, plans and/or programmes involved there were crafted in
consideration of the context, such as identifying relevant demographics and
the gaps in representivity that had to be addressed through affirmative action.
This was not the case here nor was the application of affirmative action one of
the criteria applicable in the selection of candidates. These are issues that
would have been catered for in a specially formulated plan, policy or
programme which would have provided the basis of the appointment. Clearly,
the appointment was an ad hoc and arbitrary act. It can never in itself amount
to a measure within the contemplation of s 8(3)(a) or s 9(2) which clearly
require something much more than an ad hoc act. The appointment was not a
measure in itself and was clearly inherently arbitrary and therefore unfair as
contemplated in Item 2(1)(a).

[26] Therefore the submission that the appointment of Mr Mkongwa was in
itself a measure within the contemplation of s 8(3)(a) is misconceived.
Furthermore, the submission that the appointment was a ‘practice’ within the
meaning of Item 2(2)(b) is also misplaced. Even if one were to find that the
term ‘measures’ in s 8 also contemplates a practice, a single act or
appointment is not and can never amount to a practice. The terms ‘practice’
and ‘measures’ presuppose more than one act. The language of the
Constitution must be respected. One cannot give a term in the Constitution a
meaning inconsistent with it. In S v Zuma 1995 (2) SA 642 (CC) para 17 the
court said:

‘I am, however, sure that Froneman J, in his reference to the fundamental “mischief”
to be remedied, did not intend to say that all the principles of law which have hitherto
governed our Courts are to be ignored. Those principles obviously contain much of
lasting value. Nor, I am equally sure, did the learned Judge intend to suggest that we
should neglect the language of the Constitution. While we must always be conscious
of the values underlying the Constitution, it is nonetheless our task to interpret a
written instrument. I am well aware of the fallacy of supposing that general language
must have a single “objective” meaning. Nor is it easy to avoid the influence of one's
personal intellectual and moral preconceptions. But it cannot be too strongly stressed
that the Constitution does not mean whatever we might wish it to mean.’

[27] In the circumstances of this case and in view of the absence of a plan
or policy in terms of which affirmative action was to be applied, the
respondent was obliged to comply with the legislative framework applicable at
the time in selecting candidates. There are a number of provisions in the
Public Service Act and the Interim Constitution which are relevant regarding
appointments in the public service. Section 11(1)(b) of the PSA provides:

’Only the qualifications, level of training, merit, efficiency and suitability of the persons
who qualify for the appointment, promotion or transfer in question, and such
conditions as may be determined or prescribed or as may be directed or
recommended by the Commission for the making of the appointment or the filling of
the post, shall be taken into account.’

The high-water mark of this provision is that no person who qualifies for
appointment shall be favoured or prejudiced and that suitability amongst
others shall be the criteria to be considered when making appointments.
Section 212(2) of the Interim Constitution provided inter alia that the public
service
should
‘promote
an
efficient
public
administration
broadly
representative of the South African community’. In turn s 212(4) of the Interim
Constitution provides:

‘In the making of any appointment or the filling of any post in the public service, the
qualifications, level of training, merit, efficiency and suitability of the persons who

qualify for the appointment, promotion or transfer concerned, and such conditions as
may be determined or prescribed by or under any law, shall be taken into account.’

[28] There is clear emphasis in these provisions that suitable candidates
cannot be denied appointment if they comply with stipulated requirements,
even though representivity is the objective. Therefore, in the quest to attain
representivity, efficiency and fairness were not to be compromised. To justify
the failure to appoint a candidate who complied with stipulated requirements it
had to be shown that that action was not unfair. The evidence at our disposal
is clear that the respondent did not have an affirmative action plan or policy in
terms of which it appointed Mr Mkongwa. The evidence is also clear that the
selection panel found the appellant to be the most suitable candidate and
recommended that he be appointed. It is also common cause that the
appellant complied with all the requirements for the post in terms of s 11(1)(b)
of the PSA. In the light of all these facts it was clearly unfair not to appoint
him. The Labour Court was therefore incorrect to conclude that it was not a
requirement for the respondent to have had a plan or programme first before
appointing Mr Mkongwa. In the circumstances, the appellant has succeeded
in showing that the failure to appoint him was inherently arbitrary and
therefore amounted to unfair discrimination which is an unfair labour practice
as contemplated in Items 2(1)(a).

[29] It follows that the appeal must be upheld. In the circumstances, the
following order is granted:

1.
The appeal succeeds with costs including the costs of two counsel and
the order of the Labour Appeal Court is set aside.

2.
In its place the following order is substituted:

‘The appeal succeeds with costs. The order of the Labour Court is set
aside and the following order is substituted:

(a)
It is declared that the appointment of Mr Mkongwa to the post of
Deputy Director Administration: Greys Hospital instead of the applicant
constituted an unfair labour practice as envisaged by Item 2(1)(a) of
Schedule 7 of the Labour Relations Act 1995, in that it discriminated
unfairly against the applicant.

(b)
The respondent is ordered to pay the applicant the difference between
what he would have earned had he been appointed to the said post on
the effective date 1 June 1996 and what he actually earned for the
period 1 June 1996 to the date of his retirement on 28 February 2003,
together with interest at the prescribed legal rate calculated from the
date on which each monthly salary payment became due until date of
payment.

(c)
In the event the parties are unable to agree the amount due to the
applicant they are granted leave to approach this court on the same
papers, duly supplemented in so far as necessary, for an order
determining the amount due.

(d)
The respondent is ordered to pay the applicant’s costs.’

___________
D MLAMBO
JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT: M PILLEMER SC;

P BLOMKAMP
INSTRUCTED BY: LLEWELLYN CAIN ATTORNEY; PIETERMARITZBURG

LOVIUS BLOCK; BLOEMFONTEIN

FOR RESPONDENT:
P J OLSEN SC;

J NXUSANI;

S SEWPERSAD (Ms)
INSTRUCTED BY:     STATE ATTORNEY; PIETERMARITZBURG
STATE ATTORNEY; BLOEMFONTEIN
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
17 September 2008

Status:
Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

MARTIN GORDON
v
DEPARTMENT OF HEALTH: KWAZULU-NATAL

The Supreme Court of Appeal (SCA) today reversed a decision of the Labour
Court and found that the appointment of an applicant to the post of Deputy
Director at Greys Hospital, Pietermaritzburg, unfairly discriminated against the
appellant.

The appeal arose from the appointment of a black candidate (the successful
appointee) supposedly on affirmative action grounds instead of the appellant, a
white candidate, found to be the most suitable by a selection panel. The
appellant approached the Labour Court claiming that the failure to appoint him
was based solely on his race and colour and as such amounted to unfair
discrimination within the meaning of Item 2(1)(a) of Schedule 7 of the Labour
Relations Act 66 of 1995. The Labour Court rejected the claim holding that the
appointment did not discriminate unfairly against the appellant, hence his
appeal to the Labour Appeal Court. The Labour Appeal Court dismissed the
appeal on the basis that the successful appointee had a direct and substantial

interest in the proceedings and that the failure to join him non-suited the
appellant.

The Supreme Court of Appeal found that the appellant had sought protective
promotion which posed no direct implications for the successful appointee and
that this ruled out any interest, direct and/or substantial, which the successful
appointee may have in the proceedings.

The SCA then considered the unfair discrimination claim and found that the
appointment of the black candidate in the absence of a plan or programme was
ad hoc and therefore arbitrary. The SCA found that ad hoc and arbitrary
conduct was not contemplated in the phrase ‘measures designed to . . .’ in
s 8(3)(a) of the Interim Constitution. On this basis the SCA concluded that the
appointment of the black candidate discriminated unfairly against the appellant
and as such violated Item 2(1)(a) of Schedule 7 of the Labour Relations Act.