Lilian Dudley v The City of Cape Town and Ivan Toms

Dr Lilian Dudley, a black woman medical doctor, applied for the position of Director: City Health with the City of Cape Town but was unsuccessful. The position was offered to Dr Ivan Toms, a white man who is also a medical doctor. The applicant challenged the appointment, alleging that the failure to appoint her constituted unfair discrimination, an unfair labour practice, a breach of the affirmative action provisions of the Employment Equity Act (EEA), and a breach of the City's constitutional obligations under sections 9(1) and 9(2) of the Constitution. The dispute was referred to the CCMA where it could not be resolved, and the applicant then brought an application in the Labour Court seeking an order setting aside the second respondent's appointment and appointing her to the position. The City of Cape Town took an exception to the statement of case, mainly on the ground that affirmative action under the EEA is not available to an individual employee as a sword to prosecute a claim. The Labour Court upheld the exception, holding that the EEA does not establish an independent individual right to affirmative action and that there is no right of direct access to the Labour Court for such claims. The applicant then applied for leave to appeal directly to the Constitutional Court.

• Whether leave to appeal should be granted to appeal directly to the Constitutional Court from the Labour Court decision
• Whether it is in the interests of justice to bypass the Labour Appeal Court
• Whether the interpretation and application of the affirmative action provisions of the Employment Equity Act raise constitutional matters appropriate for direct appeal
• What factors should be considered in determining whether a direct appeal is in the interests of justice

The following order was made: (a) The applicant's failure to comply with Rule 19(2) of the Rules of the Constitutional Court was condoned; (b) The application for leave to appeal directly to the Constitutional Court was refused; (c) There was no order for costs.

Direct appeals to the Constitutional Court from the Labour Court should not be granted where it is in the interests of justice for the Labour Appeal Court, as the specialized appellate court in labour matters, to first consider important labour law issues, even where constitutional matters are raised. The interests of justice require consideration of multiple factors including: (1) the advantage of having the views of the Labour Appeal Court on matters in issue; (2) the importance of constitutional issues raised; (3) saving in time and costs; (4) urgency; and (5) prospects of success. Effect must be given to the LAC's specialized jurisdiction by ensuring that labour courts are not bypassed in matters falling within their jurisdiction unless there are compelling reasons to do so. Refusal of direct leave to appeal does not preclude a litigant from approaching the Constitutional Court again after the LAC has disposed of the matter.

The Court observed that the EEA is a statute enacted to give effect to the constitutional right to equality by eliminating unfair discrimination in employment, and its interpretation and application will ordinarily raise a constitutional matter. The Court noted that there were conflicting Labour Court decisions on whether affirmative action can found a cause of action under the EEA (referring to Harmse v City of Cape Town which answered affirmatively, contrasting with the Labour Court decision being appealed from). The Court expressly stated it was expressing no view on the prospects of success of the underlying appeal. The Court cited and applied the principle from Mkangeli and Others v Joubert and Others that refusal of direct leave does not mean the appeal lacks merit, but rather that the matter should first be dealt with by the appropriate appellate court, and that the Constitutional Court will consider any subsequent application on its merits after that court has disposed of the matter.

This case is significant for establishing the approach the Constitutional Court will take regarding direct appeals in labour matters, particularly those involving the Employment Equity Act. It reinforces the importance of respecting the specialized jurisdiction and expertise of the Labour Appeal Court in labour law matters, even when constitutional issues are raised. The judgment clarifies that the mere fact that a matter raises constitutional issues related to employment equity does not automatically warrant bypassing the Labour Appeal Court. It emphasizes the principle of judicial comity and the need for the Constitutional Court to benefit from the views of specialized appellate courts before deciding on matters within their expertise. The case also provides guidance on the factors to be considered when determining whether it is in the interests of justice to grant direct leave to appeal, balancing the importance of constitutional issues against the need to respect the court hierarchy and allow specialized courts to develop jurisprudence in their areas of competence.