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Court grapples with competing equity claims

Labour Appeal Court (LAC) on Friday gave its approval to an employment equity plan that justified the promotion of an African policeman over an Indian policeman, despite the Indian policeman being scored higher by a selection panel.

In Friday’s Capt Munsamy judgment, the LAC had to grapple with the difficult issue of how the law should treat situations where two black people (one African and one Indian) want the same job. Judge Dennis Davis said that, throughout SA’s racist history, Africans suffered the most "sustained and egregious forms of discrimination". He said this was reflected in the facts of the case because in the KwaZulu-Natal police, Africans were "hopelessly under-represented" at all levels of the organisation. He said that the province’s employment equity plan sought to ensure restitution "in order that a broadly nonracial police force could emerge in KwaZulu-Natal, one that was not predicated on previous historical patterns". He noted that there may be difficult cases "where competing claims within designated groups (i.e. those previously disadvantaged) will vex a court with great anxiety". However, this was not one of those difficult cases, said Judge Davis, because the difference in the scores between the candidate who was ultimately preferred and Munsamy was "insignificant".

In a judgment delivered earlier this month in a case brought by trade union Solidarity on behalf of ten, mostly coloured, people who were overlooked when they applied to the Department of Correctional Services for jobs or promotions in the Western Cape, Judge President of the LAC Basheer Waglay and Judge Davis also spoke of the "painfully difficult task" of assessing equity measures that differentiated between groups of people who all fell into designated groups.