Solidarity clinches victory in affirmative action case against Tshwane Municipality: Court rules that employment equity may not be considered in filling position

In another much-publicised case regarding the unfair implementation of affirmative action, trade union Solidarity clinched a victory on behalf of its member, Marco de Sampaio, against the Tshwane Municipality today. A court order was issued in the Johannesburg Labour Court today, after the two parties had reached a settlement earlier this week. The court order decrees, among other things, that employment equity may not be one of the criteria for filling the position for which De Sampaio applied.

According to Dr Dirk Hermann, Deputy General Secretary of Solidarity, De Sampaio's case is a victory, as it proves that employment equity cannot be used as an absolute criterion when filling positions. "This court order is a victory for merit and justice. For the residents of the greater Tshwane municipal area, the principle of merit means that the best service will be delivered," explained Hermann.

De Sampaio has applied four times for the position in which he has been acting in a temporary capacity for the past three years. However, each time he was not considered for the position due to the unfair implementation of affirmative action, and the position was left vacant.

In terms of the settlement, which was ratified by the court order today, De Sampaio will be included in the short list for the vacant position. This comes after he applied for the position of Deputy Director for System Development at the municipality's Department of Water and Sanitation for the fourth time in September this year.

Apart from De Sampaio being shortlisted, the parties agreed that he will also be invited for an interview and that employment equity will not be a criterion for filling the position. The candidates' experience, qualifications and competence are the only criteria that will be taken into account. Furthermore, the municipality also agreed to not leave the position vacant. An appointment will therefore be made following the interviews. The municipality will also, if De Sampaio is eventually not appointed in the post, provide Solidarity with reasons for its decision in writing.

Hermann maintains that De Sampaio's case is a classic example of the unfair manner in which affirmative action is currently implemented in the public service. "It happens time and again that extremely competent employees are overlooked for positions, because appointing them will not promote employment equity targets. Meanwhile, the positions are left vacant and service delivery suffers as a result. This unfair application of the policy violates competent employees' rights, as in De Sampaio's case, and deprives South Africans of their constitutional right to adequate service delivery," said Hermann.

Statement issued by Dirk Hermann, Deputy General Secretary: Solidarity, November 17 2011

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