Dudley v City of Cape Town and Another

Dr Lilian Dudley, a black woman and medical doctor, applied for the position of Director: City Health with the City of Cape Town. The position was instead offered to Dr Ivan Toms, a white male medical doctor. Dr Dudley challenged the appointment, alleging unfair discrimination, an unfair labour practice, breach of the affirmative action provisions of the Employment Equity Act 55 of 1998 (EEA), and breach of the City’s constitutional obligations under sections 9(1) and 9(2) of the Constitution. After the dispute could not be resolved at the CCMA, she approached the Labour Court seeking, inter alia, an order setting aside Dr Toms’s appointment and appointing her instead. The City raised an exception to her statement of case, contending that the EEA does not confer an individual right to affirmative action enforceable by an employee. The Labour Court upheld the exception. Dr Dudley then applied for leave to appeal directly to the Constitutional Court.

The applicant’s late filing was condoned, but leave to appeal directly to the Constitutional Court was refused. No order as to costs was made.

The case underscores the Constitutional Court’s insistence on respecting the institutional role of specialised labour courts, particularly the Labour Appeal Court, in developing labour and employment equity jurisprudence. It clarifies that even where constitutional issues arise, litigants will generally be required to exhaust the labour court hierarchy before approaching the Constitutional Court. The decision is significant for shaping procedural pathways in employment equity and affirmative action litigation.