Dudley v City of Cape Town and Another

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J
• Judgment Date: 28 May 2004
• Docket Number: CCT 5/04
• Hearing Date: 20 May 2004
• Court: Constitutional Court

The Court:

[1] This is an application for leave to appeal directly to this Court from a decision of the Labour Court upholding an exception F to the applicant's statement of case. Dr Lilian Dudley, the applicant, a black woman who is a medical doctor, unsuccessfully applied to the City of Cape Town, the first respondent herein, for the position of Director: City Health. That position was offered to the second respondent, Dr Ivan Toms, a white man who is also a medical doctor. G The applicant subsequently challenged the appointment of the second respondent. The ensuing dispute was eventually referred to the Commission for Conciliation, Mediation and Arbitration, where it could not be resolved. The applicant then brought an application in the Labour Court seeking, amongst other things, an order setting aside the appointment of the second respondent and appointing her to that H position.

[2] In her statement of case, the applicant alleged that failure to appoint her to the position of Director: City Health constituted unfair discrimination, an unfair labour practice, a breach of the 'affirmative action' provisions of the Employment Equity Act (the EEA) [1] and a breach of the City's I constitutional obligations, such as those created, amongst others, by s 9(1) and 9(2) of the Constitution of the Republic of South Africa

The Court

Act 108 of 1996. [2] These allegations rested principally upon the alleged breach of the 'affirmative action' A provisions of the EEA.

[3] The City of Cape Town took an exception to the statement of case on various grounds but mainly on the ground that 'affirmative action' under the EEA is not available to an individual employee for use as a sword in the prosecution of a claim based on 'affirmative action'. The Labour Court upheld the exception, holding, amongst other B things, that the EEA does not establish an independent individual right to 'affirmative action' and that there is no right in respect of such a claim of direct access to the Labour Court.

[4] The present application for leave to appeal is the sequel. The time allowed for the filing of notice to oppose has expired. None C has been filed. The applicant has also applied to the Labour Court for leave to appeal to the Labour Appeal Court (the LAC). That application is conditional upon this Court refusing leave to appeal directly to it. The Court decided to deal with the matter summarily under Rule 19(6)(b). [3] D

[5] This application for leave to appeal is out of time by some five days. The applicant is also seeking an order...