Ms Yonela Mbana, a black woman, was awarded a bursary by the law firm Shepstone & Wylie in 2005 to study towards an LLB degree. The bursary agreement guaranteed her employment as a candidate attorney upon completion of the degree. Ms Mbana did not complete her LLB by the end of 2008 as anticipated and requested to commence employment in January or July 2009 while completing an outstanding module. Relying on its recruitment policy, the firm refused and required her to commence only in January 2010, which she did. In January 2011, two other candidate attorneys, Ms Tooley (white woman) and Mr Mchunu (black man), commenced employment without having completed their LLB degrees. Ms Mbana complained of differential treatment and alleged unfair discrimination based on race and social origin, alternatively on an arbitrary ground, under the Employment Equity Act 55 of 1998. She also later relied on the circumstances of another employee, Ms van Rooyen, who had previously commenced candidate attorney employment without an LLB. The Labour Court dismissed her discrimination claim with costs. Ms Mbana further alleged actual bias or a reasonable apprehension of bias on the part of the presiding Labour Court judge, based on his prior association with the respondent and his conduct during proceedings. Her subsequent appeals were dismissed, leading her to seek leave to appeal to the Constitutional Court.
The application for leave to appeal was dismissed. There was no order as to costs.
This case clarifies the application of the Employment Equity Act’s burden of proof provisions in unfair discrimination claims, particularly the distinction between listed grounds and arbitrary grounds. It confirms that employers may justify differential treatment based on genuine business and operational requirements, provided these are objectively demonstrated. The judgment also reinforces the high threshold for establishing judicial bias and the importance of raising recusal applications timeously. It affirms the Constitutional Court’s reluctance to interfere with costs orders absent exceptional circumstances.