AFFIRMATIVE ACTION: ONLY A SHIELD? OR ALSO A SWORD? Harmse v City of Cape Town (2003) 24 ILJ 1130 and Dudley v City of Cape Town (2004) 25 ILJ 305 (LC)

Abstract

The Employment Equity Act 55 of 1998 (hereinafter “the EEA”) which gives more detailed content to the right of equality enshrined in section 9 of the Constitution of South Africa, compels employers to promote equality in the workplace by eradicating unfair discrimination in employment policies and practices. Unfair discrimination against any employee, whether directly or indirectly, based on that employee’s race, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age,
disability, religion, HIV status, conscience, belief, political opinion, culture, language or birth is prohibited (s 6(1)). However, it is not unfair discrimination to take affirmative action measures consistent with the purpose of the EEA (s 6(2)). If an employee is therefore
differentiated against due to affirmative action measures of the employer, such an employee will not succeed in an action based on unfair discrimination, provided that the employer acted within the permissible bounds of affirmative action. It has in fact been held by the South African Constitutional Court that any action in accordance with permissible affirmative action policies does in fact not amount to unfair discrimination (Minister of Finance v Van Heerden (2004) 25 ILJ 1593 (CC)). Affirmative action is therefore raised by employers as a justification for apparent unfair discrimination. If the justification is successful the particular court will conclude that there was no unfair discrimination. Affirmative action in this context is used as a shield, not a sword (see Dupper and Garbers
“Commentary: Affirmative Action” in Thompson and Benjamin (eds) South African Labour Law Vol 1 (2002) 1-59). But can affirmative action be used as a sword? Can an employee (as envisaged in the EEA) argue that he or she is a victim of discrimination because his or her employer did not apply affirmative action measures consistent with the EEA? Is such a person also the victim of unfair discrimination? Can such a person base an application on section 6 of the EEA? This question may seem strange (see Grogan Dismissal, Discrimination and Unfair Labour Practice (2005) 93) and will in all probability not arise where only formal discrimination is at issue. In South Africa, however, where the ultimate goal is the achievement of substantive equality however, the issue needs consideration. Substantive equality can only be achieved if the distortions created by apartheid are removed and employers are compelled to give preference, at least for a while, to members of groups that were disadvantaged by unfair discrimination in the past. This question was addressed in two cases (Harmse v City of Cape Town (2003) 24 ILJ 1130 and Dudley v City of Cape Town (2004) 25 ILJ 305 (LC)). Both cases brought were against the City of Cape Town in the Labour Court. The purpose of this note is to analyse and evaluate the opposing judgments in these cases.