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Case Law in South Africa

See below for summaries of, and links to, selected court decisions on labour disputes involving  discrimination and on several Constitutional Court decisions that involved principles of equality.

SELECTED WORKPLACE DISCRIMINATION CASES

2013
Department of Correctional Services v POPCRU [2013] ZASCA 40 – males wearing dreadlocks discriminated against (automatically unfair dismissals) on the basis of religion, culture and gender (see also POPCRU v DCS 2010 Labour Court and DCS V POPCRU 2011 Labour Appeal Court).

2012
PSA obo Tlowana v MEC of Agriculture [2012] ZALCJHB 121
– affirmative action is not a valid defence where the candidate is not suitably qualified

2011
Allpass v Mooikloof Estate IPty) Ltd [2011] ZALCJHB 7
– automatically unfair (discriminatory) dismissal on the grounds of HIV status
Biggar v City of JHB EMS [2011] ZALCJHB 5 – discrimination and harassment on the basis of race
Makoti v Jesuit Refugee Service South Africa [2011] ZALCJHB 122 – non-renewal of fixed term contract for rejecting sexual advances is an automatically unfair dismissal / no employer liability for discrimination if harassment is not reported
City of Tshwane Metropolitan Council v SA Local Government BC – equity considerations may be a factor in determining promotions but must be procedurally fair (difference in pay ordered)
NEHAWU v Office of the Premier [2011] ZALCPE 2 – targeted recruitment (head-hunting) outside of deadline for applications is not unfair discrimination 

2010
Motsamai v Everite Building Products (Pty) Ltd [2010] ZALAC 23
- dismissal for perpetrating sexual harassment upheld 
Bedderson v Sparrows Schools Education Trust [2009] ZALC 167 – automatically unfair dismissal and unfair discrimination on the basis of age on the unilateral implementation of a new policy
SABC v CCMA [2009] ZALAC 13 – dispute about equal pay for work of equal value is an ongoing (continual and repetitive) and therefore not out of time to refer a dispute
University of South Africa v Reynardt [2010] ZALAC 9 – unfair implementation of an affirmative action plan, once the targets have been met

2009
Director General of the Department of Labour v Comair Limited [2009] ZALC 78 – review of the Director General’s public powers if an employer is non-compliant with its obligations in terms of the EEA
SAPS v Zandberg [2009] ZALC 97 - affirmative action as a defence to an unfair discrimination claim
2008
Gordon v Department of Health UKZN [2008] ZASCA 99 – failure to promote for equity reasons is unfair if there is no affirmative action policy or plan in place
Thekiso v IBM South Africa (Pty) Ltd [2006] ZALC 91 – no affirmative action right not to be retrenched

2007
PSA obo Karriem v SAPS [2006] ZALC 39 – no right to affirmative action in the promotion process

2006
DG of the Department of Labour v Jinghua Garments (Pty) Ltd [2006] ZALC 100 – employer fined for failure to comply with provisions of the EEA

2005
Alexandre v Provincial Administration of the WC Department of Health [2005] ZALC 57 – affirmative action as a defence to an unfair discrimination claim

2001
Ntai v SA Breweries Ltd 2001 LC – equal pay claim dismissed

2000
Auf De Heyde v University of Cape Town 2000 LC
  – affirmative action as a defence to an unfair discrimination claim

1999
Department of Correctional Services v Van Vuuren (1999) 11 BLLR 1132 (LAC) – affirmative action as a defence to an unfair discrimination claim

1997
Leonard Dingler Employee Representative Council & Others v Leonard Dingler (Pty) Ltd (1997) 11 BLLR 1438 (LC) – indirect discrimination (in the provision of benefits) on the grounds of race

 

SELECTED CONSTITUTIONAL COURT DECISIONS ON THE PRINCIPLES OF EQUALITY 

Hassam v Jacobs NO [2009] ZACC 19 – discrimination on the basis of marital status, religion
Geldenhuys v National Director of Public Prosecutions [2008] ZACC 21  - discrimination on the basis of sexual orientation
City Council of Pretoria v Walker [1998] ZACC 1 – differential service tariffs based on geographical location – concept of indirect discrimination