Mgolozeli v Gauteng Department of Finance and Another (JS704/11) [2014] ZALCJHB 466; [2015] 3 BLLR 308 (LC); (2015) 36 ILJ 1602 (LC) (25 November 2014)

REPUBLIC OF SOUTH AFRICA, JOHANNESBURG

THE LABOUR COURT OF SOUTH AFRICA

JUDGEMENT

Reportable

Case No: JS704/11

In the matter between:

MGOLOZELI, ZAMILE MACMILLEN

Applicant

and

GAUTENG DEPARTMENT OF FINANCE

First Respondent

LUMKA, STEWARD NO

Second Respondent

Heard: 19-20 AUGUST 2013

Delivered: 25 NOVEMBER2014

JUDGMENT

MODISE AJ

Introduction

[1] This matter arises from the question whether the decision of the Second Respondent not to approve the appointment of the Applicant in accordance with the recommendation of the interviewing panel that interviewed the Applicant and other short-listed candidates to the post of Senior Manager: Risk and Compliance Audit in the Gauteng Provincial Government Department of Finance, constitutes unfair discrimination based on gender in contravention of section 9 of the Constitution and section 6 of the Employment Equity Act.

[2] The matter was set down for trial on 19 August 2013, however, before the commencement of the trial the parties agreed to submit to mediation before a mediator appointed by the Commission for Conciliation and Mediation and Arbitration. Mediation failed and the matter remained unresolved.

[3] After mediation failed the parties agreed to waive their rights to present oral evidence and instead elected to rely on the documentary evidence filed of record and contained in the indexed and paginated bundle of documents. The parties also agreed to argue the matter within what they described as the constraints of the "summation".

[4] The parties essentially agreed to be bound by the four corners of a mutually agreed stated case and the indexed and paginated bundle of documents within the constraints of the "summation".

Issue to be determined

[5] Did the Respondent unfairly discriminate against the Applicant in its refusal to appoint him to Level 13 Post on the grounds of gender in the absence of an Employment Equity Plan, and if so, what is the Applicant's remedy?

Background

[6] The common cause facts identified and agreed to by the parties as set out in the summation adequately cover the facts that led to the dispute between the parties.

[7] The common cause factors are as follows:

7.1 The First Respondent advertised for the position of Senior Manager: Risk and Compliance Audit within the Gauteng Department of Finance in about December 2010.

7.2 The Level 13 Post is a senior management position which was previously occupied by a woman.

7.3 The advertisement did not specifically state that the disputed position was reserved for women. The advertisement stated that: ‘The Provincial Government of Gauteng is committed to the achievement and maintenance of diversity and equity in employment, especially in respect of race, gender and disability.

7.4 The Applicant applied for the Level 13 Post unsuccessfully.

7.5 On 18 February 2011 the Second Respondent authorised the interview of 6 candidates which included the Applicant. Only one candidate was a woman.

7.6 The Applicant was interviewed on 22 February 2011 after being short-listed. On about 1 March 2011 he was subjected to an assessment by an industrial psychologist, Ms Prudence Ngoako, who filed a report recommending his appointment to the Level 13 Post.

7.7 The Applicant was recommended for appointment by the interview panel on about 1 or 7 March 2011.

7.8 The recommendation as aforesaid was not approved with the Second Respondent stating that this is "due to the GDF's gender imbalance at SMS level."

7.9 The Applicant referred the matter to the CCMA on 3 May 2011 after internal attempts to resolve the dispute failed. The Respondent did not attend the conciliation thus the Certificate of Non-Conciliation was signed on 24 May 2011.

7.10 The Respondent now states that the reason it did not approve the recommendation to appoint the Applicant is due to the following:

7.10.1 the First Respondent had dropped drastically on employment equity targets in particular in so far as it related to women in senior management positions;

7.10.2 the First Respondent had only 29% women in senior management positions when its target was 50%’.

[8] A memorandum from the Director General: Office of the Premier, states as follows:

‘The Gauteng Provincial Government has also set itself the target of attaining a representative workforce with specific emphasis on 50% females at senior management level and 2% people with disabilities. This recruitment drive is an ideal opportunity for the GPG departments to move closer to the employment equity targets that have been set for the GPG’.

[9] The management bulletin Vol 1. No. 2 dated 19 June 2007 states as follows:

‘At the opening of the Legislature in February, Premier Mbhazima Shilowa made the bald assertion that by 2009, women should constitute 50% of senior management in the Gauteng Provincial Government.

For its part the GSSC Exco has taken a decision to appoint females only in position in level 11 upwards. In cases where females are not appointed the manager in charge will have to provide compelling reasons why a female has not been appointed. We are taking the first step in advancing the progressive agenda of systematically dismantling the backward of patriarchy.

The position taken by Exco is part of the struggle to improve the status of women who bear the brunt of poverty, discrimination and economic neglect, ours therefore is a concerted effort aimed at meeting our obligation to women, society and to ourselves….’

[10] The Gauteng Provincial Government set for itself a target of having 50% of the senior management positions filled by women by 2009.

[11] The First Respondent does not have an Employment Equity Plan. The Respondents applied targets or quotas to the Level 13 Post in the absence of a plan as envisaged by the Employment Equity Act.

[12] It is agreed that the Gauteng Treasury – Employment Equity Plan was not adopted by the Respondents.

[13] For completion, the Public Service Regulations, 2001 and the SMS Handbook apply to Senior Management.

[14] No one has been appointed to the disputed position and the parties agree to hold the Post vacant until the finalisation of this matter.

[15] The Applicant has acted in the Post from December 2010 until about 31 May 2011. He is an African Black male born on 25 August 1975 currently in the position of a Senior Audit Manager at the level of a Deputy Director in the Internal Audit: Risk and Compliance division within the employ of the First Respondent. He falls within the designation group for affirmative action.

Interview process

[16] On 22 February 2011, interviews were conducted for the position of Senior Manager: Risk and Compliance. This is a level 13 post in the Public Service. The Applicant and five other people one of whom declined the invitation were interviewed. There was only one female who was short listed and interviewed. The interview nevertheless proceeded notwithstanding the fact that there was only one female candidate short-listed for the post.

[17] The panel consisted of two females and one male. The names of the panel members are:

17.1 Ms Gift Dinga, chairperson – Deputy General Manager and Compliance Audit,

17.2 Ms Zoliswa Ntombele – General Manager: GAS,

17.3 Mr Sikhungo Dube – Deputy General Manager: Specialised Services

[18] In recommending the Applicant for appointment to the post the interviewing panel (“panel”) said the following:

‘Whilst the panel is aware of deviating from the GDF practice of recommending female candidates at level 11 and higher, we do so for the following reasons:

· GAS has achieved the equity target at SMS level as we have 45/55 percent on male and female.

· Scarce skills – there is a high demand for audit specialists with the requisite knowledge and competencies.

· Proven competency – Mr Mgolozeli is currently employed by GDF as supervisor: Risk & Compliance Audit Level 12 since June 2004 and his performance has been par excellence and has added significant value in the department. He is also acting in this position.

· Retention strategy – GAS is currently facing a challenge of retaining internal audit staff due to the lack of growth prospects, development and better salary offers. Mr Mgolozeli falls in the category of employees to be retained in order to secure his knowledge and skills.

In view of the above the panel members agreed that Mr Zamile Macmillen Mgolozeli is a suitable candidate for appointment and be recommended for appointment as Senior Manager: Risk and Compliance Audit Services’.

[19] The panel unanimously recommended that approval be granted for the Applicant to be appointed to the position.

[20] On 9 March 2011, the Deputy Director General: Corporate Services, Ms Ziningi Mbelu (“Mbelu”) recorded her disapproval of the panel's recommendation for the appointment of the Applicant to the post for the following reasons:

‘THIS UNIT HAS RECENTLY LOST TWO FEMALE DIRECTORS THE GDF HAS DROPPED DRASTICALLY ON EE TARGETS ESPECIALLY AS IT RELATES TO WOMEN IN SMS. WHILST THE BU DEMOGRAPHICS LOOKS ACCEPTABLE, HOWEVER THE WHOLE ORGANISATION IS CURRENTLY AT 29% VERSUS THE REQUIRED 50% OF WOMEN AT SMS LEVEL CONSIDER APPOINTING A FEMALE INTO THE POST’.

[21] On 10 March 2011, one of the members of the panel, Ms Zoliswa Ntombela (“Ntombela”), changed her mind with regard to the panel's unanimous recommendation for the appointment of the Applicant to the position for the following reasons:

‘I WAS PART OF THE PANEL, HOWEVER AFTER HAVING CONSIDERED THE ACT DDG'S (SIC) CORPORATE COMMENT ABOVE REGARDING THE NEED FOR THE DEPARTMENT TO APPOINT MORE FEMALES AT SMS LEVEL, HAVING DROPPED TO 29%, I CONCUR WITH THE RECOMMENDATION THAT WE APPOINT FEMALE’

(SIC)

[22] Ntombela initially supported the panel's recommendation for the appointment of the Applicant to the post. I shall return to Ntombela's comments set out above later in my judgment.

Submissions

[23] Counsel for the Applicant submitted that in the absence of an Employment Equity Plan (EEP), the Respondent had no justification to discriminate against the Applicant on the basis of his sex and gender. Discriminatory measures cannot be exercised outside the provisions of the Employment Equity Act (EEA). The directives and bulletins issued by the then Premier of the Gauteng Province, Mr Mbhazima Shilowa (“Shilowa”) do not comply with the provisions of the EEA. In terms of the EEA affirmative measures can only be implemented after consultation with the relevant stakeholders.

[24] It was further submitted that as a country we have to accept that women are part of the designated groups but so are men. An employer has to be careful discriminating among members of the designated group. The Applicant was a victim of blind application of a quota. A target is something to be aspired to because it is based on some scientific data whereas a quota system has no science or law. It is arbitrary.

[25] The Applicant's rights have been infringed. He has been taken through a painful process. His entrenched human rights have been infringed.

[26] It was further submitted on behalf of the Applicant that at the opening of the Legislature of the Gauteng Province, Shilowa made the bald assertion that by 2009 women should constitute 50% of senior management in the Gauteng Provincial Government. Counsel further argued that in his address, Shilowa stated that for its part the GCCS Exco had taken a decision to appoint female only in positions in level 11 upwards. In cases where females are not appointed the manager in charge will have to provide compelling reasons why a female has not been appointed. Fairness is demonstrated by consistency and the existence of an EEP and in the absence of a plan it would be difficult to demonstrate how the Respondent could have complied with the EEA.

[27] Counsel for the Respondent submitted that an employer such as the First Respondent cannot be confined to an EEP where it does not exist and that the existence or non-existence of the EEP is a non-issue in relation to this matter.

[28] When it was put to counsel to explain whether anything turns on the peremptory provisions of section 20 of the EEA that a ‘designated employer must prepare and implement a EEP which will achieve reasonable progress towards Employment Equity in that employer's workforce’ he said that in the absence of a plan, the EEA regulates what needs to happen. Counsel further submitted that the EEA does not impose any consequences for a designated employer's failure to implement affirmative action measures.

Recommendations of the panel

[29] On 11 March 2011, the Second Respondent did not support the panel's recommendation for the Applicant's appointment "due to the GDF'S GENDER IMBALANCE AT SMS LEVEL."

[30] After the interviews of the short-listed candidates were finalised, the chairperson of the panel, Ms Gift Dinga (Dinga) prepared a submission to obtain the Second Respondent's approval for the appointment of the Applicant, ‘on a five years fixed term contract, to the advertised position of Senior Manager: Risk and Compliance Audit on the Gauteng Audit Services staff establishment’. The approval sought by Dinga for the appointment of the Applicant to the position of Senior Manager: Risk and Compliance Audit was refused.

[31] Dinga stated in her submission to obtain the Second Respondent's approval for the appointment of the Applicant that Gauteng Audit Services ‘has achieved the equity target at SMS level as we have 45/55 % on male and female’ (sic).

[32] The percentage provided by Dinga regarding the equity target at SMS level is clearly at odds with what is set out in the stated facts agreed to by the parties that the Gauteng Provincial Government had only 29% women in senior management positions when its target was 50%.

[33] It appears to me that at the time when the Second Respondent took the decision not to approve the Applicant's appointment there was great confusion regarding the gender balance at SMS level 13 -16 because in the Respondents statement of response it is clearly and unequivocally stated that the ‘gender balance at SMS level 13 – 16 as at the end of February 2011 was 62,5% males and 37,5% females’. The cause of the confusion is inexplicable to say the least.

[34] Despite the confusion regarding the gender balance at SMS level I have to accept for the purposes of my judgment that at the time when the Second Respondent made the decision not to support the panel's recommendation to appoint the Applicant the ‘First Respondent had only 29% women in senior management positions when its target was 50%’ because I am bound by what is set out in the stated case agreed to by the parties.

EEA

[35] Section 20 of the EEA deals with the obligation to prepare and implement an EEP. This section obliges an employer such as the First Respondent to prepare and implement an EEP.

[36] Section 20(1) of the EEA provides that:

A designated employer must prepare and implement an EEP which will achieve reasonable progress towards Employment Equity in the

employer's workforce. In terms of section 20(2) An employment equity plan prepared in terms of subsection (1) must state-

(a) the objectives to be achieved for each year of the plan;

(d) the timetable for each year of the plan for the achievement of goals and objectives other than numerical goals

36.1 (e) the duration of a plan, which may not be shorter than 1 year or longer than 5 years;

36.2 (f) the procedures that will be used to monitor and evaluate the implementation of the plan and whether reasonable progress is being made towards implementing Employment Equity.

[37] In Gordon v Department of Health: KwaZulu-Natal[1], the court said:

‘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 context of S 8 (3) (a). The respondent submits that it was such a measure even though it was ad hoc.... 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 and Minister of Safety and Security illustrates this at 480 A-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 Breach 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 Servant Association case, inter alia based on the opinion expressed by Mureinik, and as 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, to anything, and might be counter-productive.

….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

programs go a long way satisfying the requirement of rationality. This is so since a properly crafted program or policy provides a basis upon which it can be measured as to whether it meets the constitutional objective…’.

[38] In Munsamy v Minister of Safety and Security and Others[2], the court said:

‘Employers are obliged to make the workplace equitably representative and may use discriminatory affirmative action measures to do so. An employer may, however, not prefer one group of designated employees over another group of designated employees who are supposedly

over-represented in the absence of proper proof of such representativeness and a valid employment equity plan which permits the action of the employer. The LAC recently affirmed this rule in SAPS v Solidarity on behalf of Barnard when it held that the failure

by the SAPS to appoint a recommended white female candidate did not constitute unfair discrimination where white females were over

represented in the level of the advertised post and the failure to appoint was in line with a rational, coherent employment equity plan intended to redress inequitable representation in the workplace.

The issue is what constitutes a rational coherent employment equity plan and action in line with such a plan.

The answer is to be found in the provisions of the Employment Equity Act, 1998 and the Code gazetted to regulate the preparation and implementation of employment equity plans, as set out below. The Act and Code were in operation at the time of the promotion process in question.

In terms of section 15(3) of the Act, legitimate affirmative action measures include preferential treatment and numerical goals, but exclude quotas. The concept of preferential treatment and numerical goals to be achieved within a certain period of time differs quite significantly from the concept of quotas. The imposition of a strict quota is a rigid measure requiring a certain fixed proportion or percentage to be included whereas preferential treatment and goals is more flexible allowing the achievement of objectives over a period of time…….

The employer is only obliged to provide a proper opportunity for consultation. It cannot be held against the employer if any particular interest group failed to take up the opportunity of consultation when invited to do so. Guidelines of the Code provide that when a representative union or body refuses or fails to take part in the consultation process, the employer must record the circumstances in writing.

Based on the above provisions, where an employer used affirmative action measures to prefer one designated group over another who were supposedly over-represented, the employer must prove the following to establish that its conduct was in line with a defensible employment equity plan: (i) that there was an over-representation of the discriminated against group and an under-representation of the preferred group in the level of the post in question: this requires the conduct of a proper workplace profile audit; (ii) that the measures is sufficiently coherent and not open to arbitrary application or abuse; (iii) that the measure is permitted by the Act; (iv) an equity plan that permits the disputed measure, either expressly or by clear implication; (v) that the measure is intended to correct inequitable representation in the workplace; and, (vi) that the measure arose out of proper consultations, i.e. there had been proper consultation on the particular measure.....’

Were the Respondents justified in refusing to appoint the recommendation of the panel to appoint the Applicant?

[39] It is apparent from the agreed facts that the Respondents' refusal to approve the Applicant's appointment has its genesis from an announcement purportedly made by Shilowa at the opening of the Gauteng Provincial Legislature as set out in the management bulletin Vol 1. No 2 that by 2009 women should constitute 50% of senior management in the Gauteng Provincial Government. It seems that apart from Shilowa's pronouncement the GSSC EXCO had also taken a decision to appoint females only in positions in level 11 upwards. An undated memorandum written by the Director General: Office of the Premier also alluded to the Gauteng Provincial Government's target of attaining a representative workforce with specific emphasis on 50% females at senior management level and 2% people with disabilities.

[40] To further justify the Respondents' refusal to appoint the Applicant, the Respondents also appear to have relied on a message "from the HOD" who (this is borne out by what is contained in "Newsflow" wherein it is stated that DRT welcomes new HoD) appears to have been appointed after the events that led to the non- appointment of the Applicant.

[41] After the new HoD was appointed, he pleaded with his ‘colleagues to allow him the opportunity to reiterate the importance for the Department to meet Employment Equity targets’.

[42] I find it appropriate and convenient to quote the HoD's message in full because it is apparent from the HoD's message that the Respondents seems to have only realised after the fact that there is confusion and uncertainty with regard to the application and implementation of the Respondents' purported restitutionary measures in relation to female representation at SMS level.

[43] The HoD's message reads as follows:

‘Dear Colleagues

Please allow me the opportunity to reiterate the importance for the Department to meet Employment Equity targets.

I have a presentation outlining the female representation on SMS and MMS level, as at 31 Aug 2011 for your consideration. As per the presentation, you will notice that we are considerably below the national and provincial target for females on SMS level – the target is 50%, and we are on 37.5%.

In view of the above, and to ensure that we meet employment equity targets, I appeal to all managers to give preference to female candidates to fill the available posts on SMS level. This means that advertisements will specifically state that preference will be given to female candidates, and during short-listing, only female candidates will be short-listed. Should the panel find that there are not sufficient female candidates, Internal HR, in collaboration with the relevant line managers, will conduct data-base searches and headhunting for female candidates. Only when all such efforts to find suitable female candidates are unsuccessful, will the focus move to male candidates. This practice will remain in force until we have reached the 50% target, which means that the greater majority of vacant SMS posts must be filled by females. Through this, we will step up efforts to appoint women in senior management positions in line with the national and provincial target.

It is my expectation that all managers, responsible for recruitment, will play an integral part in achieving these targets.

In addition, I am referring you to the recently approved recruitment procedure manual, outlining the roles and responsibilities and turn-around times for each step within the recruitment process.

For more information please liaise with the Internal HR’

[44] It is common cause that the First Respondent does not have an EEP. The Respondents applied targets or quotas to the level 13 post in the absence of a plain envisaged by the EEA.

[45] I understand the Respondent's case to be that an employer is not obliged to be confined to an EEP to apply affirmative action measures where they do not exist and that the existence or non-existence of the EEP is of no consequence. What is important is for the employer to apply affirmative action measures by ensuring that the workplace is equitably representative.

[46] In Munsamy, the court said employers may use discriminatory affirmative action measures subject to the condition that an employer may not prefer one group of designated employees over another group of designated employees who are "over-represented" in the

absence of proper proof of such representation and a valid employment equity plan which permits the action of the employer.

[47] In South African Police Service v Solidarity obo Barnard, the court adopted the same approach as in Munsamy when it said that a properly adopted restitution measure that was applied may be challenged. The Court also said that there is no valid reason why courts are precluded from deciding whether a valid EEP has been put into practice lawfully. This is plainly so because a validly adopted EEP must be put to use lawfully and that it may not be ‘harnessed beyond its lawful limits or applied capriciously or for an ulterior or impermissible purpose’.[3]

[48] Apart from the fact that the Respondents does not have a coherent, rational or defensible policy, programme or practice (let alone an EEP) ,the Respondents also do not have a system or monitoring mechanism in place to track the level of gender representation on a regular basis as contemplated in the EEA.

[49] The Second Respondent did not support the Applicant's appointment simply ‘due to the GDF'S GENDER IMBALANCE AT SMS LEVEL’ without considering and/or applying his mind to the compelling motivation advanced by the panel regarding the suitability of the Applicant for the position and why it was necessary for the panel to deviate from recommending a female to be appointed.

[50] The Second Respondent ignored the important consideration mentioned by the panel that there is a high demand for ‘audit specialist with the requisite knowledge and competencies’ and the fact that the Applicant has been employed by the First Respondent as Supervisor: Risk and Compliance Audit Level 12 since June 2004 and his performance has been "par excellence" and had added "significant value" in the department. The Second Respondent similarly ignored the fact that in terms of the First Respondent's retention strategy and challenges facing the Gauteng Audit Services of retaining internal audit staff due to ‘lack of growth prospects, development and better salary offers, the Applicant fell in the category of employees to be "retained in order to secure his knowledge and skills’.

[51] The fact that Ntombela changed her mind after considering Mbelu's comments regarding the need for the Respondents to appoint females at SMS level is a further classic example that demonstrates that the Respondents applied whatever affirmative action measures they purported to have had in place on an ad hoc, haphazard, arbitrary and random manner.

[52] Another reason why the Respondents unfairly discriminated against the Applicant in their refusal to appoint the Applicant to the level 13 post, solely on the grounds of his gender is because the Respondents conceded that they applied targets or quotas to level 13 posts in the absence of a plan as envisaged by the EEA.

[53] On 23 March 2011, Ms Naledi Modibedi-Rahate, Manager: Recruitment and OD addressed a letter to the Applicant advising him that a ‘decision was taken by Management to re-advertise the position’. All those who previously applied for the position (including the Applicant) were prevented from re-applying for the position. This decision on its own in the absence of a plausible explanation is clearly unfair and irrational.

[54] In Naidoo v Minister of Safety and Security and Others[4], the court held that the EEP that existed then constituted an "absolute barrier to the appointment of Indian and Coloureds

both men and women, in the upper echelons." The court further stated that the barrier that existed must be removed[5].

The court also said:

‘The persons of these communities are part of the designated group and they are entitled to "equitable representation" and, if needs be, by means of reasonable accommodation on account of the fact that they are a vulnerable minority in South Africa. The Equity Plan and the affirmative action measures – in particular the workforce profile and employment targets – are constructed on a wrong and impermissible construct and criterion, and the provisions of section 42 of the Equity Act are violated’.

[55] In South African Police Service v Solidarity obo Barnard[6] referred to above, the court described quotas "as akin to job reservation" and clearly prohibited by section 15(3) of the Act.

[56] The right to equality and the constitutional imperative and objective is to promote and create a non-racial and non-sexist society instead of creating non-sexism that borders on what was in Naidoo described as "tokenism".

[57] In my view, the Second Respondent's refusal to approve the panel's recommendation for the appointment of the Applicant to the position of Senior Manager: Risk and Compliance Audit is in line with what the Constitutional Court cautioned against in South African Police Services v Solidarity obo Barnard, when it said the following:

‘I pause to underline the requirement that beneficiaries of affirmative action must be equal to the task at hand. They must be suitably

qualified people in order not to sacrifice efficiency and competence at the altar of remedial employment. The Act sets itself against the hurtful insinuation that affirmative action measures are a refuge for the mediocre or incompetent. Plainly, a co-objective of equity at the workplace is to employ and retain people who not only enhance diversity but who are competent and effective in delivering goods and services to the public’.

[58] The Respondents affirmative action measures however, well-intentioned they might appear to be, do not comply with the requirements of the Constitution and the EEA and are accordingly impermissible and could therefore not be relied on as a valid and lawful basis for the Respondents refusal to approve the Applicant's appointment.

[59] The Respondents applied for condonation for the late filing of its heads of argument. The Applicant did not oppose the application for the late filing of the Respondents' statement of response.

[60] I accordingly, make the following order:

60.1 The Respondents application for condonation is granted.

60.2 The Respondent unfairly discriminated against the Applicant on the ground of his gender.

60.3 The Respondent is ordered to appoint the Applicant to the position of Senior Manager: Risk and Compliance Audit within the department of finance at level 13 post to commence as at the day of this judgment.

60.4 The Applicant is to be paid the difference in the remuneration he would have earned as if he was appointed on 11 March 2011 to the post Senior Manager: Risk and Compliance Audit.

60.5 The Respondents are ordered to pay the costs of the suit the one paying the other to be absolved.

________________________________

Modise, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Advocate A Tiry

Instructed by: Duduzile Hlebela Attorneys

For the Respondent: Advocate K Tsatsawane

Instructed by: Gildenhuys Malatji Attorneys

[1] (2008 )29 ILJ 2535(SCA) at paras 18 and 22, per Mlambo JA (as he then was)

[2] Case no: D253/03 at 18, per Whitcher AJ

[3] Case no: CCT 01/14, at 19, 38 and 27, per Moseneke ACJ (as he then was)

[4] Case no: JS566/2011, at 230-231 – 2013(3) SA 486(LC), per Shaik AJ

[5] Case CCT at 27, per Moseneke ACJ (as he then was)

[6] Supra