Gordon v Department of Health: KwaZulu-Natal

The Department of Health, KwaZulu-Natal advertised a post for Deputy Director: Administration: Greys Hospital in April 1996. The appellant, Martin Gordon, a white male employed by the Department since 1967, and Mr Z Mkongwa, a black male employed since 1974, both applied. Gordon had progressed through various positions to Assistant Director administering three hospitals, while Mkongwa was an administration officer with an Honours degree in Administration. The selection panel found Gordon most suitable and recommended him for appointment based on his strong leadership, planning and control competencies. The Provincial Public Service Commission rejected this recommendation and directed the Department to appoint Mkongwa instead, citing his academic qualifications, experience and the constitutional imperative to promote representivity. Gordon instituted proceedings claiming unfair racial discrimination and unfair labour practice, seeking protective promotion from 1 June 1996. The Labour Court dismissed his claim, finding the appointment gave effect to the constitutional imperative. The Labour Appeal Court dismissed Gordon's appeal on the basis that he had failed to join Mkongwa as a party, finding that Mkongwa had a direct and substantial interest in the proceedings.

• Whether the failure to join the successful appointee (Mkongwa) in proceedings challenging non-appointment constituted fatal non-joinder
• What constitutes a 'direct and substantial interest' sufficient to require joinder of a party
• Whether an ad hoc appointment decision, without an underlying affirmative action policy, plan or programme, constitutes a 'measure designed to achieve' equality as contemplated in section 8(3)(a) of the Interim Constitution
• Whether the failure to appoint the appellant, who was found most suitable by the selection panel, constituted unfair discrimination and an unfair labour practice under Item 2(1)(a) of Schedule 7 of the Labour Relations Act 66 of 1995
• What rational connection must exist between affirmative action measures and the constitutional objective of promoting equality

The appeal succeeded with costs, including costs of two counsel. The Labour Appeal Court order was set aside. The Labour Court order was replaced with a declaration that the appointment of Mr Mkongwa instead of the appellant constituted an unfair labour practice under Item 2(1)(a) of Schedule 7 of the Labour Relations Act 1995, as it discriminated unfairly against the appellant. The respondent was ordered to pay the appellant the difference between what he would have earned had he been appointed to the Deputy Director position from 1 June 1996 and what he actually earned until his retirement on 28 February 2003, together with interest at the prescribed legal rate calculated from the date each monthly salary payment became due until payment. Leave was granted for the parties to approach the court if they could not agree on the amount due. The respondent was ordered to pay the applicant's costs.

The binding legal principles established are: (1) A third party does not have a direct and substantial interest requiring joinder in employment discrimination proceedings where the relief sought is compensation from the employer rather than setting aside the third party's appointment - the test is whether the court's order can be sustained without necessarily prejudicing the third party's interests; (2) Ad hoc appointments based solely on race, without an underlying affirmative action policy, plan or programme, do not constitute 'measures designed to achieve' equality as contemplated in section 8(3)(a) of the Interim Constitution or Item 2(2)(b) of Schedule 7 of the Labour Relations Act; (3) For measures to qualify as legitimate affirmative action under the Constitution, there must be a rational connection between the measures and the objective of promoting equality - this requires properly formulated programmes that consider context, identify relevant demographics, and address gaps in representivity; (4) A single appointment cannot constitute a 'practice' within the meaning of Item 2(2)(b) of Schedule 7 - the terms 'measures' and 'practices' presuppose more than one act; (5) Affirmative action measures that are arbitrary, random, haphazard or display naked preference are not reasonably capable of achieving the constitutional objective and do not qualify for constitutional protection; (6) Where there is no affirmative action plan or policy in place, employers must comply with merit-based criteria in sections 11(1)(b) of the Public Service Act and 212(4) of the Interim Constitution; (7) Failure to appoint a candidate who meets all stipulated requirements and is found most suitable, in the absence of a rational affirmative action measure, constitutes unfair discrimination and an unfair labour practice under Item 2(1)(a) of Schedule 7 of the LRA.

The Court made several non-binding observations: It noted that the language of the Constitution must be respected and terms cannot be given meanings inconsistent with their ordinary meaning (citing S v Zuma 1995 (2) SA 642 (CC)). The Court observed that the constitutional injunction that the public service be broadly representative is important and calls for focused attention on respects in which the service is not representative and what measures should be implemented, suggesting that properly considered policies or plans are preferable to ad hoc means. The Court commented that in a competitive appointment situation, applicants provide information to influence the employer's decision, but once the employer selects, it is the employer (not the successful applicant) who must defend the decision if challenged, as the employer has the managerial prerogative and legal interest in confirming its decision. The Court noted that the Du Preez and Traub cases cited by the Labour Appeal Court dealt with the audi alteram partem principle rather than non-joinder, acknowledging this distinction. The Court observed that successful appointees will always have an interest in confirmation of their suitability but this is not a 'direct and substantial interest' necessary to found joinder. The Court also noted that properly crafted programmes go a long way to satisfying the requirement of rationality as they provide a basis for measuring whether constitutional objectives are met. While discussing the constitutional framework, the Court emphasized that the Interim Constitution aimed for substantive rather than formal equality, citing Van Heerden and academic commentary on the evolution toward recognizing that identical treatment does not achieve equality where starting points differ due to historical disadvantage.

This case is significant in South African law for establishing important principles regarding affirmative action in employment. It clarifies that ad hoc appointments based solely on race, without an underlying rational affirmative action policy, plan or programme, cannot qualify as 'measures designed to achieve' equality under the Constitution and constitute unfair discrimination. The judgment emphasizes that affirmative action measures must be rationally connected to achieving representivity and equality, requiring proper planning, demographic analysis, and identification of gaps to be addressed. The case also provides important guidance on non-joinder principles in labour disputes, distinguishing between situations where successful appointees have a direct and substantial interest (when their removal is sought) versus where they do not (when only compensation from the employer is sought). The decision reinforces that constitutional imperatives of transformation and equality do not permit arbitrary decision-making but require rational, planned measures. It balances the constitutional mandate for affirmative action with requirements of fairness, efficiency and merit in public service appointments under section 212 of the Interim Constitution and section 11(1)(b) of the Public Service Act. The case demonstrates the judiciary's role in subjecting affirmative action measures to rationality review to ensure they genuinely advance constitutional objectives rather than serving as blanket justifications for arbitrary decisions.