Major Solidarity breakthrough in judgment on race at Eskom

28 May 2024

Solidarity hopes a Labour Court victory on behalf of one of its members, whose application for a management position at Eskom was refused because of his skin colour, will send a strong message to the outside world.

Judge Hilary Rabkin-Naicker, in a judgment handed down in the Labour Court in Cape Town, found that Alwyn Erasmus was discriminated against when, after 30 years of employment at Eskom, he was not appointed to an essential position for which he had applied.

The directive by employment equity officials at Eskom that only “black men as well as women of any race group should be given preference” prejudiced Erasmus’ application, even though he was precisely the suitable candidate that a senior manager at Eskom wanted to appoint.

According to the senior manager, Eskom could not afford to lose Erasmus’ skills, and yet Eskom decided not to consider any white men for the role. 

Erasmus questioned this decision.

After an unsuccessful application at the Commission for Conciliation, Mediation and Arbitration (CCMA), Solidarity approached the Labour Court on behalf of Erasmus.

In this judgment, the court ruled that the inflexible manner based on race by which the shortlist of candidates was compiled, amounted to an absolute barrier for members of non-designated groups who compete with candidates in the employment equity group and that a nuanced approach was not followed at all.

According to the judgment, it is therefore contrary to affirmative action legislation and an offense against the applicant’s right to dignity and equality.

This judgment is also clearly in line with Solidarity’s 2023 settlement with the government, in terms of which race may not be the sole criterion in affirmative action.

Solidarity Deputy Chief Executive Anton van der Bijl said he was delighted that Erasmus could be assisted in this way.

“Yet such blatant racial outrages committed with Eskom’s approval absolutely tarnishes Eskom’s reputation. This is not only directly contrary to the settlement its employer, namely the state, reached with Solidarity; it is also a slap in the face of hard-working Eskom employees.

“They are expected to add value to the company on a daily basis – regardless of their race. But then, when their value must be weighed, they are judged based on their race. We simply cannot and will not tolerate such blatant racism,” Van der Bijl said.

Although, in terms of the judgment, Eskom is not obligated to appoint Erasmus to the position in question, he must receive 18 months’ salary as compensation – an amount that could run into millions.

In addition, Eskom may never again in future remove any non-designated person from a shortlist for a position because of the colour of their skin.

Solidarity continues to fight for its members in the workplace – especially in cases where they are discriminated against on the basis of race, which often takes place with the approval of the authorities.
Major international actions are already being planned to finally deal a blow to affirmative action legislation, as it is applied in South Africa.

Click here for the judgment.

Issued by Anton van der Bijl, Solidarity: Deputy Chief Executive, 28 May 2024