The Constitutional Court has rejected a landmark challenge by a black woman against a white colleague’s appointment to the Cape Town municipality’s top health job.
However, the court did not rule on the substance of Lilian Dudley’s application. It ordered her to first exhaust other legal avenues, such as the Labour Appeal Court.
This raises the possibility that she may press on with her claim. Neither she nor her lawyer, Jason White, could be contacted yesterday.
Dudley tried to short-circuit the normal appeals procedure by applying directly to the Constitutional Court for leave to appeal, after the Labour Court threw out her demand that she be appointed as municipal health director.
Her challenge to the City of Cape Town was based on a claim that it had discriminated against her by appointing well-known anti-apartheid and Aids activist Ivan Toms in her place.
She argued that in terms of the Employment Equity Act, the city was obliged to appoint her because she is black and a woman.
On Thursday the Constitutional Court ruled that that ”she could approach the Court again for leave to appeal if her matter failed in the Labour Appeal Court, or was not heard by that court.”
Before the ruling, the Women’s Legal Centre described the case as potentially precedent-setting.
Dudley had accused the Cape Town municipal authorities of failing to apply their own recruitment policy and of failing to adhere to chapter three of the Employment Equity Act.
The case ”challenges the interpretation of employers applying affirmative action factors,” the centre said.
Urmilla Bhoola, a Johannesburg lawyer who specialises in employment equity, said if the case was re-heard before the Constitutional Court, the court would have to clarify the obligations of employers in terms of the Employment Equity Act.
”At the moment, the Act does not set out how to deal with the hierarchy [of designated groups] listed in the legislation, and how to appoint people in that hierarchical structure,” she said.
”One of the things Dudley argued in the original court case was that the Cape Town municipality had not set up an equity plan.”
The Act lists black people, women and people with disabilities as designated groups.
The Act specifies that where short-listed candidates all meet the minimum requirements for a job, preference must be given to a person from a designated group.
Hayley Galgut, a lawyer at the Women’s Legal Centre, said she believed the Act would improve as it was tested in court.
”It is less of a case of there being gaps in the Act and more that the law needs to be developed on a case-by-case basis, by being constantly tested in the courts.”
In her application for leave to appeal to the Constitutional Court, Dudley argued that the Labour Court was wrong to conclude that the remedial measures provided for in the Employment Equity Act were not available for use by individual employees.
She contended that the Act’s remedies imposed an obligation on Cape Town municipality to offer the position to her because she belonged to a previously disadvantaged group and should have been a preferred candidate.
The Labour Court held that provisions aimed at remedying past disadvantage could not be used by an individual employee as a basis for a claim.
It accordingly issued a ruling preventing her from relying on those provisions of the Act.