Mbana v Shepstone & Wylie

Ms Yonela Mbana, a black woman, received a bursary from Shepstone & Wylie (a law firm) to study towards an LLB degree, with guaranteed employment upon completion. In July 2008, she informed the firm she would not complete her degree by end of 2008 as expected but only by June 2009. The firm informed her she could only commence employment in January 2010 (not January 2009) in accordance with its recruitment policy that only candidates who had completed their LLB degrees would commence employment in January after their year of completion. When Ms Mbana commenced employment in January 2010, she discovered in January 2011 that two other candidate attorneys (Ms Tooley, a white woman, and Mr Mchunu, a black man) had commenced employment without having completed their LLB degrees. She lodged a complaint alleging unfair discrimination based on race and social origin. The respondent argued exceptional circumstances justified the deviation from its policy - it had only learned of Tooley and Mchunu's incomplete degrees after they commenced employment, and dismissing them would have left the litigation department severely understaffed as recruitment occurred a year in advance. Both were required to complete their degrees by June 2011 or face termination. Ms Mbana also pointed to Ms van Rooyen, employed at the Richards Bay branch in 2005 without completing her degree, but the respondent distinguished this as van Rooyen had been a secretary for five years, moved to fill a vacancy that also required administrative tasks, and was not part of the graduate programme.

• Whether the respondent's conduct constituted direct or indirect unfair discrimination against Ms Mbana on the grounds of race and social origin under sections 6 and 11(1) of the Employment Equity Act 55 of 1998
• Whether the respondent's conduct constituted unfair discrimination on an arbitrary ground under section 11(2) of the Employment Equity Act
• Whether the respondent justified its differential treatment of candidate attorneys under section 11(1)(b) of the Employment Equity Act
• Whether the presiding judge in the Labour Court was actually biased or whether there was a reasonable apprehension of bias due to his previous association with the respondent firm
• Whether leave to appeal should be granted where there are constitutional issues relating to equality and judicial impartiality

1. The application for leave to appeal is dismissed. 2. There is no order as to costs.

1. Under the Employment Equity Act, where unfair discrimination is alleged on a listed ground (sections 6 and 11(1)), the employer bears the burden of proving either that discrimination did not occur or that it was justified. Where discrimination is alleged on an arbitrary ground (section 11(2)), the complainant bears the burden of proving the conduct was not rational, amounted to discrimination, and was unfair. 2. An employer's business and operational needs can constitute exceptional circumstances justifying differential treatment of employees and deviation from employment policies, but such needs must be demonstrated objectively and must be genuine and legitimate - they cannot simply be accepted on the employer's assertion. 3. Where comparator employees of the same protected characteristic (e.g., race) as the complainant receive similar differential treatment, this undermines claims that the protected characteristic was the basis for discrimination. 4. The test for both actual bias and reasonable apprehension of bias is whether "a reasonable, objective and informed person would, on the correct facts, reasonably apprehend bias." The threshold is high, and there is a presumption that judicial officers are impartial. 5. Allegations of bias must be raised timeously. A litigant who has full knowledge of facts supporting a bias claim but waits until after an adverse judgment to raise such allegations displays conduct inconsistent with a reasonable apprehension of bias and undermines the administration of justice. Such late-raised allegations will not be entertained. 6. A judge's previous professional or pecuniary association with a party, particularly one that ended years before the judge's appointment to the bench, does not give rise to a reasonable apprehension of bias unless the subject matter of the litigation arises from such associations or it can be shown that the association may reasonably be apprehended to obstruct the discharge of judicial duty. 7. In determining whether to grant leave to appeal under section 167(3) of the Constitution, the Court must be satisfied that the matter raises a constitutional issue or an arguable point of law of general public importance, and that it is in the interests of justice to grant leave. Prospects of success remain an important consideration in the interests of justice enquiry.

1. While the Court held that the disputed question of whether the judge disclosed his past association was not material to the outcome, it observed that "it is, however, desirable as a practical matter that a judge should disclose, in writing, his association with the litigants as this diminishes the risk of disputes. This is important to maintain the confidence that the public repose in the Judiciary." (para 49) 2. The Court emphasized that "most judicial officers would have been engaged in a number of activities in pursuit of their professional lives before their appointment. These activities contribute to the expertise that judicial officers bring to the bench. What is required is that judicial officers should decide cases that come before them without fear, favour or prejudice, according to the facts and the law, and not according to their subjective personal views." (para 48, quoting Bernert) 3. The Court noted that "litigation must be brought to finality as speedily as possible" and that it is "not desirable for a litigant, after a trial has been completed and she has already sought leave to appeal on other grounds, to amend her grounds for leave to appeal by including new facts alleging actual bias." (paras 44-45) 4. The Court stressed that its conclusion on the justification for differential treatment should not be understood as permitting employers to simply assert business needs: "Despite this conclusion, it must be stressed that an employer's business and operational needs will not simply be accepted on the employer's own say-so. It must be shown, objectively, that there are genuine and legitimate business and operational needs that justify the differential treatment of employees." (para 38)

This case is significant in South African employment law for several reasons: 1. It clarifies the application of sections 6 and 11 of the Employment Equity Act, particularly the burden of proof in discrimination cases. Where discrimination is alleged on listed grounds (race, social origin), the employer must prove it did not occur or was justified. Where discrimination is alleged on arbitrary grounds, the complainant must prove the conduct was irrational, amounted to discrimination, and was unfair. 2. It establishes that employer business and operational needs can constitute exceptional circumstances justifying differential treatment, but these must be shown objectively and cannot simply be accepted on the employer's say-so. The needs must be genuine and legitimate. 3. It demonstrates that where comparator employees of the same race receive differential treatment, claims of racial discrimination lose traction, particularly where no evidence supports alternative explanations. 4. On judicial bias, it reinforces the high threshold for establishing reasonable apprehension of bias and emphasizes that litigants must raise bias allegations timeously - waiting until after an adverse judgment undermines the claim. Past professional associations of judges, particularly those ending years before appointment, do not automatically give rise to reasonable apprehension of bias. 5. It underscores the principle that litigation must be brought to finality speedily and that late amendments to grounds of appeal, particularly on bias, will not be permitted where inconsistent with proper administration of justice. 6. While emphasizing that disclosure of past associations is desirable to maintain public confidence in the judiciary, the Court clarified this is a practical matter and non-disclosure alone does not establish bias where the association is remote in time.