Transformation remains a central feature of South African employment law. With the introduction of sectoral employment equity targets and increased scrutiny of workforce demographics, many employers are reviewing their employment equity plans and recruitment practices to ensure compliance with the Employment Equity Act 55 of 1995 (“the EEA”).
In Moses Kotane Institute v Mzimele and Another (DA 18/2023) [2026] ZALAC 31, the Labour Appeal Court (“the LAC”) considered the extent to which an employer may rely on representivity considerations when making an appointment in the absence of a properly implemented employment equity framework.
The dispute arose in respect of the appointment of a Chief Financial Officer. Mr Mzimele (‘the applicant’) met all the advertised requirements, achieved the highest score during the interview process, and emerged as the preferred candidate. Despite this, he was not appointed.
The employer contended that the appointment of a female candidate was necessary to improve gender representivity at executive level. The LAC, however, found that the successful candidate did not meet the minimum qualifications stipulated in the advertisement and that the employer had no employment equity plan or other affirmative action framework to support its decision. Significantly, gender representivity was not an advertised selection criterion but was introduced only after the interviews had been concluded and the preferred candidate identified. The employer’s reliance on affirmative action under the EEA was raised only on appeal and had not formed part of its case at trial.
The LAC accepted that improving the representation of women in senior positions is a legitimate objective. The issue was not the objective itself, but the manner in which it was pursued. Employment equity measures must form part of a structured and lawful process and they cannot be introduced after a recruitment process has run its course in order to achieve a preferred outcome.
The LAC made clear that the absence of a written employment equity plan will not necessarily be fatal. However, an employer seeking to rely on representivity considerations must be able to demonstrate that the decision formed part of a properly conceived employment equity process, supported by contemporaneous evidence of underrepresentation, candidate suitability and objective decision-making. On the facts, the employer in this case was unable to do so.
The applicant was ultimately successful in establishing unfair discrimination. His success on the merits did not, however, translate into a damages award. Although the Labour Court had awarded patrimonial damages, the LAC found that the evidence was insufficient to establish actual financial loss. In particular, the applicant relied on his SARS tax assessments and the remuneration earned by the successful candidate as a comparator. The LAC held that this evidence did not adequately demonstrate what he would probably have earned had he been appointed to the position.
The judgment reinforces the distinction between lawful affirmative action measures and impermissible quotas. The EEA permits preferential treatment and numerical goals, but does not permit absolute barriers to employment based solely on race, gender or any other designated ground. Candidates must still be suitably qualified and appointments must remain rationally connected to the requirements of the position.
The distinction between damages and compensation is equally important. Patrimonial damages require proof of actual financial loss and causation, whereas compensation may be awarded for the impairment of dignity without proof of loss. Where patrimonial loss is likely to be difficult to quantify or prove, compensation may be a more appropriate remedy.
In view of the introduction of sectoral employment equity targets, these principles assume even greater significance. The targets do not replace the existing requirements of the EEA and do not authorise employers to disregard qualifications, experience or objective selection criteria. Nor do they justify recruitment decisions based exclusively on demographic considerations.
Employers should ensure that employment equity plans are current, supported by appropriate workforce analysis, and capable of guiding recruitment decisions before vacancies arise. Where representivity is a relevant consideration, it should be applied consistently throughout the recruitment process and in accordance with the employer’s employment equity objectives. Decisions taken during recruitment should be capable of objective justification and supported by a clear record of the factors considered.
