Gordon v Department of Health: Kwazulu-Natal (337/07) [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) (17 September 2008)

Gordon v Department of Health: Kwazulu-Natal (337/07) [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) (17 September 2008)

The Supreme Court of Appeal held that the Labour Appeal Court erred in finding that the failure to join Mr Mkongwa was fatal to the appellant's claim, as the relief sought was not directed at setting aside Mr Mkongwa's appointment. The Court found that the appointment of Mr Mkongwa was not supported by any rational affirmative action policy or plan and was an ad hoc, arbitrary act. Such conduct does not constitute a valid affirmative action measure under the Interim Constitution or the Labour Relations Act and amounts to unfair discrimination. The appellant was found to have been unfairly discriminated against, and the respondent was ordered to compensate him for lost earnings and costs....

Citation
[2008] ZASCA 99
Parties
Appellant: Martin Gordon; Respondent: Department of Health: Kwazulu-Natal
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
17 September 2008
Case Number
337/07
Procedural Posture
Civil Appeal / Appeal From Labour Appeal Court
Outcome
Appeal upheld; orders of Labour Court and Labour Appeal Court set aside; appellant awarded compensation and costs.
Judges
Scott, Cloete, Mlambo, Maya, Leach
Legal Topics
Affirmative Action, Unfair Labour Practice, Direct and Substantial Interest, Non Joinder, Arbitrary Discrimination, Representivity in Public Service
Labour Law Constitutional Law Affirmative Action Unfair Labour Practice Direct and Substantial Interest Non Joinder Arbitrary Discrimination Representivity in Public Service

Case Brief

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Parties

Martin Gordon

Appellant

Department of Health: Kwazulu-Natal

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Appeal Court

Legal Issues

  1. 1 Whether the failure to join the successful appointee, Mr Mkongwa, was fatal to the appellant's claim.
  2. 2 Whether the appointment of Mr Mkongwa constituted a valid affirmative action measure under the Interim Constitution and Labour Relations Act.
  3. 3 Whether the appellant was unfairly discriminated against on the basis of race and colour, amounting to an unfair labour practice.

Ratio Decidendi

The Supreme Court of Appeal held that the Labour Appeal Court erred in finding that the failure to join Mr Mkongwa was fatal to the appellant's claim, as the relief sought was not directed at setting aside Mr Mkongwa's appointment. The Court found that the appointment of Mr Mkongwa was not supported by any rational affirmative action policy or plan and was an ad hoc, arbitrary act. Such conduct does not constitute a valid affirmative action measure under the Interim Constitution or the Labour Relations Act and amounts to unfair discrimination. The appellant was found to have been unfairly discriminated against, and the respondent was ordered to compensate him for lost earnings and costs....

Court Disposition

Appeal upheld; orders of Labour Court and Labour Appeal Court set aside; appellant awarded compensation and costs.

Orders

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