South Africa: Affirmative Action Without a Plan Ruled Discriminatory

AllAfrica.com
19 September 2008
Ernest Mabuza
Johannesburg

AN EMPLOYER cannot discriminate against a prospective employee on the basis of race if the employer did not have an affirmative action policy or plan in place, according to a Supreme Court of Appeal judgment on Wednesday.
The court reversed a decision of the Labour Court and found that the appointment of RZ Mkongwa to the post of deputy director at Greys Hospital in Pietermaritzburg unfairly discriminated against Martin Gordon - a white male.
It ruled Gordon had succeeded in showing that the failure to appoint him was inherently arbitrary and therefore amounted to unfair discrimination.
Gordon retired in 2003 and the judgment will not affect Mkongwa's position.
The appeal court ordered the health department to pay Gordon the difference between what he would have earned, had he been appointed to the position in June 1996, and what he actually earned, for the period June 1 1996 to the date of his retirement in March 2003, including interest.
In April 1996, the KwaZulu-Natal health department advertised the post and Mkongwa and Gordon were among the applicants. Gordon had started working for the department in 1967 and was an administrator of three hospitals when he applied for the post.
Mkongwa had started his career with the department in June 1974 as an assistant administrator and had progressed to the position of administration officer in June 1989.
The selection panel decided that Gordon was the most suitable for the post. However, the provincial Public Service Commission did not accept the department's recommendation and directed the department to appoint Mkongwa instead. [To read the entire post, go to: http://allafrica.com/stories/200809190067.html