Koto and Another v General Public Service Sectoral Bargaining Council and Others (P254/03) [2005] ZALC 45; (2005) 26 ILJ 481 (LC); [2005] 6 BLLR 572 (LC) (1 February 2005)

Koto and Another v General Public Service Sectoral Bargaining Council and Others (P254/03) [2005] ZALC 45; (2005) 26 ILJ 481 (LC); [2005] 6 BLLR 572 (LC) (1 February 2005)

The court found that the applicant was unfairly discriminated against on the basis of race, gender, sex, and language during the promotion process. The School Governing Body changed the Interviewing Committee's preference list for discriminatory reasons, as evidenced by the minutes and the conduct of the review panel. The review panel was unlawfully constituted, biased, and its recommendation lacked statutory basis. The Department failed to follow prescribed procedures and did not justify the appointment of Mr Jacobs. The court held that the filling of the post was both procedurally and substantively unlawful and unfair. Given the exceptional circumstances, the court accepted the parties'...

Citation
[2005] ZALC 45
Parties
Applicant: Thandiwe Cynthia Stokwe; Respondent: Member of the Executive Council, Department of Education, Eastern Cape Province; Respondent: Mr D Jacobs
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
1 February 2005
Case Number
P254/03
Procedural Posture
Review Application / Judgment
Outcome
Settled by agreement; applicant to be appointed to a post level 4 position within the Nelson Mandela Metropole under section 8(1)(c) of the Employment of Educators Act; respondent to pay costs.
Judges
Pillay D
Legal Topics
Unfair Promotion, Employment Discrimination, Procedural Fairness, School Governing Body Powers, Employment Equity
Labour Law Administrative Law Unfair Promotion Employment Discrimination Procedural Fairness School Governing Body Powers Employment Equity

Case Brief

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Parties

Thandiwe Cynthia Stokwe

Applicant

Member of the Executive Council, Department of Education, Eastern Cape Province

Respondent

Mr D Jacobs

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicant was unfairly discriminated against on the basis of race, gender, sex, and language in the promotion process.
  2. 2 Whether the procedures followed by the School Governing Body and Department were lawful and fair.
  3. 3 Whether the appointment of the review panel and its recommendation were valid under the applicable statutes.

Ratio Decidendi

The court found that the applicant was unfairly discriminated against on the basis of race, gender, sex, and language during the promotion process. The School Governing Body changed the Interviewing Committee's preference list for discriminatory reasons, as evidenced by the minutes and the conduct of the review panel. The review panel was unlawfully constituted, biased, and its recommendation lacked statutory basis. The Department failed to follow prescribed procedures and did not justify the appointment of Mr Jacobs. The court held that the filling of the post was both procedurally and substantively unlawful and unfair. Given the exceptional circumstances, the court accepted the parties'...

Court Disposition

Settled by agreement; applicant to be appointed to a post level 4 position within the Nelson Mandela Metropole under section 8(1)(c) of the Employment of Educators Act; respondent to pay costs.

Orders

  • The applicant is to be appointed to a post level 4 position within the Nelson Mandela Metropole in terms of the Employment of Educators Act.
  • The appointment shall be effected in terms of section 8 of the Employment of Educators Act No. 76 of 1998 within 60 days from the date of the order.