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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG CASE NO. JS 1061/02

In the matter between:

E.C REYNHARDT APPLICANT

and

UNIVERSITY OF SOUTH AFRICA RESPONDENT

______________________________________________________________

J U D G M E N T

______________________________________________________________

NDLOVU AJ

Introduction

[1] This is a case where the applicant alleged that he was discriminated against by the respondent, his former employer, on the ground of race in that the respondent failed or refused to appoint the applicant (a White person) in a position for which he was the most suitable candidate, but instead, the respondent, having improperly applied its own employment equity policy, appointed a less qualified and unsuitable candidate (A Coloured person) to the position. The applicant referred his dispute to the CCMA where an attempt at conciliation failed, hence he took the matter further to this Court for adjudication in terms section 52(3)(a) of the Employment Equity Act No 55 of 1998 (the EEA).

[2] In terms of his statement of case the applicant sought a declarator that he was unfairly discriminated against, compensation, damages and other ancillary relief. In response, the respondent averred that its appointment of the Coloured person was in terms of its employment equity policy which was an affirmative action measure sanctioned by both the EEA.

• Factual Background

[3] The applicant was a university professor and formerly served a three year term as Dean of the Faculty of Science of the respondent, the University of South Africa (also known as “UNISA”). He was a member of the White population group.

[4] The respondent was a public higher education institution, deemed, in terms of section 20(4) of the Higher Education Act 101 of 1997, to have been established under that Act.

[5] The applicant was appointed as the Dean aforesaid for the term commencing 1 April 1999 and expiring on 31 March 2002. He was eligible to be appointed to serve for the second term commencing 1 April 2002 and indeed he applied for such appointment. Together with a Professor G.J. Summers of the Faculty of Chemistry of the respondent, the applicant was nominated for appointment subject to the selection process and procedure prescribed by the respondent. Professor Summers was a member of the Coloured population group as contemplated in the definition of “Black people” as defined in section 1 of the Employment Equity Act 55 of 1998 (“the EEA”).

[6] At the conclusion of the process the respondent’s selection committee recommended the appointment of Professor Summers ahead of the applicant. Professor Summers was eventually appointed to the position. The applicant felt aggrieved by the respondent’s action, claiming that he had been discriminated against on racial grounds. He submitted that in terms of the respondent’s own employment equity policy and plan, the respondent had already reached its target in terms of the ratio between White and Black occupying the Deanship position at the respondent as at the time the applicant was interviewed for the post.

[7] The respondent, whilst conceding that the applicant was more qualified and more experienced than Professor Summers in the field of science, submitted that this was not a decisive factor in determining who between the two candidates was to be appointed. According to the respondent the matter fell to be determined on the basis of the respondent’s employment equity policy in terms of which it was found desirable to appoint a black person to the position, hence the appointment of Professor Summers.

Presentation of Evidence

[8] Evidence on behalf of the applicant was adduced from himself and Professor Boeyens. On the other hand, the respondent’s officials testified on behalf of the respondent, being the Employment Equity Officer, the Employment Equity Manager and the Chairperson of the Council Committee on Human Resources (CCHR).

The Applicant’s Case

[9] The applicant testified that he was a pensioner, having retired from the respondent at the end of September 2002, it being an early retirement. He related his academic career, including his qualifications and experience. In this regard he referred to a comprehensive comparative schedule in relation to him and Professor Summers. It seems to me that this aspect was a matter of common cause between the parties. This was how they compared:

	Prof Reynhardt (applicant)	Prof Summers
Highest qualifications	PhD (1971)	PhD (approx. 1992)
Academic experience	34 years in permanent teaching positions at tertiary level; 21 years as full professor	22 years at tertiary level, 8 years in temporary positions; 5 years as full professor
Supervision of Masters Doctoral students (degrees awarded)	4 MSc and 6 PhD students	2 MSc students
NRF rating	B (Reviewers’ reports clearly indicate that the researcher is an independent researcher who enjoys considerable international recognition for high quality of his research outputs)	C (Majority of reviewers concur that the candidate is an established researcher)
Managerial experience	Head of Department : 13 years Dean : 3 years	Head of Department : 4 years (1 year Unisa : 3 years Vista
Research articles	123	16 (including 5 in various stages of publication process)
Conference contributions	52 at international	25 at local and international
Prizes and awards	Ernest Oppenheimer Fellowship, 1986 Chancellor’s Prize for research – Unisa 1995	Distinguished Corporate Inventor : American Society of Patent Holders 1995

[10] The applicant held a “B” rating issued by the National Research Foundation, which was a body responsible for rating scientists at the South African Universities, Technicons and Museums. This was a peer group referred evaluation system. In terms of the NRF rating system, the local scientists were evaluated by well-known scientists. He told the Court that a “B” rating denoted an independent researcher who enjoyed considerable international recognition for high quality office research output. The rating was awarded for a period of five years and in his case it was awarded in or about 1998.

[11] As for the “A” rating, this was in relation to a scientist who was considered by all reviewers as being a world-leader in his or her field of research. This was the highest achievement and according to the applicant, there were only about twelve scientists with an “A” rating in South Africa. Professor Summers had a “C” rating, which substantially meant that he was only an established researcher.

[12] The applicant told the Court that in or about January 2002 he made an appointment with the Principal of the respondent, Dr Pityana, since it was towards the end of his office. The appointment was to discuss his future with the respondent. He said he told Dr Pityana that his (the applicant’s) perception was that white men were being replaced by black men and that it seemed the pattern was continuing and that in the light of that situation he would prefer to go on early retirement at the end of March 2002, which was to be the date of expiry of his Deanship.

[13] According to the applicant, Dr Pityana said he was not in favour of the applicant going away only after his first term in office, since it was normally the position that during the first term the Dean would come up with new initiatives and ideas which could only be implemented during the second term. He told the Court that Dr Pityana had then asked him to make himself available for appointment for the second term, and that he (Dr Pityana) said he would discuss the issue with the Chairperson of the Council Committee on Human Resources (“CCHR”). Then the applicant asked Dr Pityana whether, in the event of his application for extension of his Deanship being unsuccessful, his application for early retirement would be accepted if it was lodged on short notice. He said Dr Pityana declined to discuss that scenario as he felt that the second term as Dean would be a preferred route to go.

[14] Once the position of Dean (which was to be vacated by him in March 2002) was advertised, nominations were invited for potentially suitable candidates to fill the vacancy. Only two nominations were received. The invitation for nominations was by way of a circular issued by the office of the Principal dated 18 January 2002, which was filed at page 1 of Bundle “B” before the Court. The procedure and the criteria for the selection process was set out in the circular.

[15] The circular provided, among other things, the following:

“The selection process for Deans is as follows (UBTF decision of 18 September 1999):

‘2. Selection process: The selection process will consist of an opinion poll and a selection committee.

3. Opinion polls

4. The opinion polls should be conducted in the relevant faculties by means of Senate’s electronic voting system.

5. The full results of the opinion polls should be disclosed to the relevant faculties and selection committees.

6. The results of the opinion polls should be one of the factors taken into consideration by the selection committees when selecting candidates.

7. Selection committees

8. In line with the composition of selection committees for top management positions as contained in the draft Unisa Statute, each selection committee should consist of:

• ten members elected by the specific faculty, of whom at least four should be black persons and at least two should be women

• * five members appointed jointly by management and the UBTF Executive, of whom at least two should be black persons and at least one should be a woman

3. Each selection committee will elect a chairperson from among its members.

4. The recommendation of the selection committees will be submitted to Council for approval.’

* The five members referred to in 4.1 above will, in terms of a decision by the Management Committee on 25 September 2001, be appointed by the Management Committee.

Both the candidates (in alphabetical order) will make a presentation of approximately 15 minutes (with 15 minutes being allowed for discussion) after the Extraordinary Faculty Board Meeting which will convene on Monday, 18 February 2002, at 09:00, in the Film Auditorium, Theo van Wijk Building.”

[16] As stated earlier, only two nominations were received, namely that of the applicant and Professor Summers. They both accepted the nominations. They submitted their curricula vitae to the respondent’s management.

[17] Indeed, at the faculty board meeting held on 18 February 2002 an opinion poll was conducted, in terms of the selection procedure. The results of the opinion poll were as follows:

The applicant – 79 votes in favour – 10 votes against

Professor Summers – 10 votes in favour – 76 votes against

Spoilt ballots – 2.

[18] The applicant further testified that the faculty, in line with the circular, elected ten members to form its selection committee. However, the management did not comply in that instead of appointing five members, as prescribed in paragraph 4.1 of the circular, it appointed six members. The members of the joint selection committee appeared at page 121 of Bundle “B” which indeed confirmed that the management was represented by six members. It was at this meeting that both the applicant and Summers were interviewed on their appointability.

[19] The selection committee was not unanimous in their deliberation. It came up with the following results:

9 Members found the applicant appointable and Summers not appointable.

4 Members found both the applicant and Summers appointable.

2 Members found Summers appointable and the applicant not appointable.

[20] The essence of a candidate being found not appointable would have meant that he did not comply with the criteria set out in the selection procedure. This appeared at pages 4-6 of Bundle “B”.

[21] The selection committee was supposed to forward its report, containing its recommendation, to the CCHR. However, as no unanimity was achieved at the selection committee meeting, the Committee submitted reports. The applicant referred to these reports at pages 121-136 of Bundle “B”. They consisted of a majority report (which recommended the applicant); the minority report (which recommended Professor Summers); two individual reports, one by a committee member (which recommended the applicant) and the other one by an official from the respondent’s employment equity office (which tended to side wit the minority report).

[22] On 22 March 2002 the applicant approached Mr Moloto, the respondent’s Executive Director for Human Resources, asking about the outcome of his application. Mr Moloto informed him that his application had been unsuccessful. He then requested Mr Moloto to furnish him with reasons for the outcome of the selection process. It was common cause that in 2001 the applicant had applied for the position of Executive Director: Research in respect of which he was short-listed and interviewed, but was unsuccessful. He then also requested reasons for the outcome of that particular application. He made this request to Mr Moloto in writing in a letter with appeared at page 20 of Bundle “B”.

[23] He told the Court that on 26 March 2002 he attended a restructuring committee meeting held at the Administration Building which Mr Moloto also attended. Just before the meeting started Mr Moloto called him out and asked him whether he would be prepared to stay on in the Dean’s office until 15 April 2002 when Dr Pityana would have returned from an overseas trip in the United States of America. The applicant told Mr Moloto that he (the applicant) was not prepared to share the Dean’s office with Professor Summers. Although at that stage Professor Summers was not yet officially appointed as Dean, the applicant said Mr Moloto had informed him verbally on 22 March 2002 that Professor Summers had been successful. Mr Moloto wanted him to stay on as Dean because Professor Summers was not well and therefore there was no possibility that they would find themselves sharing the Dean’s office.

[24] On 27 March 2002 he wrote to Mr Moloto explaining to him that he was intending to retire at the end of March 2002 because if he retired as a Dean that would have favourable financial implications on his pension. He referred to his letter at page 21 of Bundle “B” which read as follows:

“To : Mr JK Moloto

Executive Director : Human Resources

From : Professor EC Reynhardt

DEAN ; FACULTY OF SCIENCE

I confirm that I wish to take early retirement upon the expiration of my current term as Dean of the Faculty of Science.

However, with reference to the request to me by yourself made on the morning of 26 March 2002, I must state the following:

1. Since my pension is dependent on the average of my last two years’ salary, it would be to my financial disadvantage to stay on as a Professor of Physics. It is therefore crucial that, should I elect to take early retirement, the effective date thereof should be 31 March 2002.

2. I can therefore only agree to continue in employment if it is agreed that I continue on my current terms and conditions of employment until the matter has been resolved with Dr Pityana.

Should you not indicate otherwise to me in writing on or before close of business on 29 March 2002, I will assume that you accept the above.

Please note that I reserve my rights.

Professor EC Reynhardt

DEAN : FACULTY OF SCIENCE)”

[25] He said he never received any response from Mr Moloto on his letter of 27 March 2002. Therefore he continued occupying the Dean’s office and performing all the Dean’s functions. To his surprise, on 9 April 2002, he received a copy of a letter from the Acting Principal, Professor Musoma, dated 27 March 2002 and addressed to Professor Summers. This was a letter of appointment of Professor Summers as Dean with effect from 1 April 2002 until 30 March 2005. Things got worse for him when on the same day (that is, 9 April 2002) he received a note from Professor Sergio Salbany who informed him that he had spoken to Professor Musoma about Professor Summers’ illness and that Professor Musoma had asked him (Professor Salbany) to act as Dean in the meantime.

[26] Professor Salbany’s note appeared at Page 24 of Bundle “B” and it read as follows:

“Erie –

I spoke with David (Professor Musoma) and his position was clear.

1. There is a newly appointed Dean as from 1 April 2002.

2. The Dean is ill and will not be able to work for a period which is still uncertain.

3. Prof Summers should write a formal letter requesting me to act as Dean from now till Prof Summers resumes work.

4. Prof Musoma will contact the Registrar as to put a message on Groupwise informing the Unisa Community of the new appointment.

It then follows that the Fac. Exec. Meeting on Friday will be chaired by the Deputy Dean, and so will the Fac Board meeting on Monday.

I did not enquire about the graduation ceremony, but that could be decided (as well as other visits) after you see the Principal after he returns to Unisa.

Regards,

Sergio”

[27] The applicant told the Court that he then faxed Professor Salbany’s note to Mr Moloto’s office with a request that he be advised of what his position was at the respondent at that stage. He then left the office, taking everything, all his possessions in the office, and went home. On the following day he did not return to the office but made a telephone call to Mr Moloto’s office. However, he was unable to speak to Mr Moloto whose secretary told him that Mr Moloto had said that he was too confused to talk to him about the situation and suggested that he discuss the matter with the Acting Principal Professor Musoma. He then telephoned Professor Musoma’s office, but did not find him. He left a message with the secretary that Professor Musoma should phone him back. However, Professor Musoma did not do so.

[28] The applicant further told the Court that having not received any response from either Mr Moloto or Professor Musoma, on 11 April 2002 he wrote another letter to Mr Moloto which appeared at pages 25 to 27 of Bundle “B”. In this letter he told Mr Moloto, among other things, the following:

“Despite a number of enquiries via your secretary, you have failed to supply me with the required information. Therefore, I once again request that you pay urgent attention to this matter.”

“I also refer you to our conversation on the morning of 26 March just before the restructuring meeting of the Faculty of Science in the Admin Building. You called me out of the venue to request me to remain in my position as Dean of the Faculty of Science until the Principal returns from abroad. On 27 March 2002 I wrote you a letter in which I

• requested to be granted early retirement upon the expiration of my current term as Dean of the Faculty of Science

• pointed out that, for financial reasons, the effective date of my early retirement had to be 31 March 2002

• stated clearly that I agreed to continue in employment until the return of the principal on my terms and conditions of employment as Dean

• stated that if you did not indicate to me otherwise before 29 March 2002, I would assume that you accepted the conditions under which I was prepared to stay on as Dean.”

“I find it rather sad that, after a long career during which I contributed significantly to the scholarly activities of Unisa and represented the University with distinction at international level, the Acting Principal did not even condescend to inform me personally of the fact that I had been replaced as Dean from 1 April 2002.

I hereby urgently request that I be furnished with the following:

• A letter stating that my application for the Deanship was unsuccessful.

• A letter stating the reasons for my unsuccessful applications for the above-mentioned posts.

• The management decision regarding my application for early retirement.

• A letter outlining my status as a Unisa employee as from 1 April 2002.

(Signed by the applicant.)”

[29] The applicant said he did not receive a reply to his letter of 11 April 2002. Subsequently, however, he received a letter from Mr Moloto dated 12 April 2002 but signed on 15 April 2002 which referred to the applicant’s letter of 22 March 2002. It was therefore clearly not in response to the applicant’s letter of 11 April 2002. Mr Moloto’s letter read as follows (at page 28-29of Bundle “B”):

“2004-04-12

Prof EC Reynhardt

Faculty of Science

Theo van Wijk Building’

UNISA

Dear Prof Reynhardt

REASONS FOR UNSUCCESSFUL APPLICATION/NOMINATION

Your memo dated 22 March 2002 refers.

1. By way of background, I would like to point out the following:

1.1 As you are aware, in a recruitment and selection process, the main and probably the only roles of a Selection Committee is to assess the appointability of candidates and to make recommendations to the employer or delegated authority.

1.2 In Unisa, positions of Deans are filled through a process of deploying qualifying academics for a specified period.

2. In response to your enquiry, the relevant information is provided as follows:

2.1 Executive Director: Research

2.1.1 The Selection Committee found Prof TA Mofokeng and you, appointable. The Committee then recommended as follows:

‘That Prof TA Mofokeng be appointed as Executive Research, as from 1 January 2002 or as soon as possible thereafter. Other than the equity consideration, he demonstrated a comprehensive, integrated understanding and application of research. He furthermore also illustrated the relevant of research to society.

Prof EC Reynhardt was found to be second best on the above criteria. The Selection Committee recommends that in the event that Prof Mofokeng not accepting, the position be offered to Prof Reynhardt.’

3. Dean: Faculty of Science

The recommendation of the Selection Committee was referred to the Council Committee on Human Resources on 19 March 2002 for consideration and final approval at the Council meeting of 20 March 2002.

On the basis of the report of the Selection Committee, it came to the attention of the CCHR that there had been division on the matter of appointability by the Selection Committee. However, after interrogating the report of the Selection Committee, Council Committee on Human Resources found both candidates appointable and recommended to Council that on the basis of the Employment Equity Policy. Prof GJ Summers be appointed as Dean of the Faculty of Science from 1 April 2002 for a three-year term.

Council approved the recommendation of the CCHR on 20 March 2002.

Signed by,

Mr JK Moloto

HR Executive, dated 15/4/2002”

[30] The applicant testified that it was clear, in terms of Mr Moloto’s letter, that he had failed due to the employment equity considerations. He felt aggrieved by the development. Hence he referred the dispute to the Commission for Conciliation Mediation and Arbitration (CCMA). (The referral appeared at pages 52-55 of Bundle “B”.) The nature of the dispute was that he was unfairly discriminated against on the basis of race. The conciliation meeting was scheduled to be held at the CCMA on 28 August 2002 at which both parties were expected to attend. However, on the scheduled date only the applicant attended and there was no representation on behalf of the respondent. Instead, on 27 August 2002 a letter from the office of the Principal (Dr Pityana) was addressed to the CCMA in connection with the matter. It read as follows:

“I refer to the above matter and write to confirm that a conciliation has been scheduled between the University of South Africa and Prof E C Reynhardt for 0900 on 28 August 2002.

I am, however, of the opinion that a conciliation meeting at this stage would serve no purpose, as various attempts at conciliation have already been made between myself and Prof Reynhardt namely on two separate occasions after 15 April 2002, at a meeting between myself, Prof Reynhardt and Mr JK Moloto, the Human Resources Executive of the University on 23 May 2002 and at a further meeting on 7 May 2002.

In view thereof, I am of the opinion that it would be in the interest of both parties that a certificate be issued that the dispute remains unresolved and that this matter then be addressed in the correct forum, should Prof Reynhardt wish to pursue his case of alleged unfair discrimination by the University.

This request should, however, not be seen as a gesture of bad faith on the side of the University and I trust that you will find this in order.

Yours sincerely,

Signed on behalf of Professor NB Pityana

Principal and Vice-Chancellor”

[31] Indeed, on 28 August 2002 the CCMA issued a certificate of outcome declaring that the dispute between the parties remained unresolved and allowing the applicant to take the matter further, if he so desired, for adjudication by this Court, which he did.

[32] The applicant acknowledged that he did hold meetings with Dr Pityana on his return from abroad on three occasions namely 19 April 2002, 5 May 2002 and 23 May 2002. He said at the meeting of 19 April 2002 it was just after Dr Pityana’s return from abroad. He informed Dr Pityana of what had happened in his absence. He told the Court that Dr Pityana pointed out that according to his judgment this matter was badly handled and that the applicant had suffered due to the manner the Acting Principal had handled the matter. Dr Pityana had then proceeded to state that he was disappointed that the racial issue always came up at selection committee meetings for promotions and appointments and at further deliberations at CCHR level and Council level. He said Dr Pityana told him that he requested Council to revise the policy as far as that was concerned. Dr Pityana had further commented that equity transformation matters at Unisa were sort of handled unfairly. Dr Pityana apologised to the applicant for the way he was treated by the management in his absence.

[33] He further testified that at the meeting he referred Dr Pityana to their initial meeting in January at which the applicant stated to him that he would like to retire at the end of March 2002 due to the unfavourable pension implications that would arise if he retired no longer being a Dean. Dr Pityana said to him that he would like to discuss the matter with other members of the management committee since he (Dr Pityana) realised that the applicant was a very experienced staff member with a lot of skills and that he thought that it would be a bad idea for the applicant to leave the university at that stage.

[34] The applicant also testified that at his meeting with Dr Pityana on 5 May 2002 Dr Pityana told him that he was looking at other options, possibly of redeploying him elsewhere in the university. He mentioned the possibility of redeploying him within the Faculty of Science with a view to enhancing the profile of the faculty and he also mentioned other possibilities or functions that he could perform within the university. Dr Pityana then pointed out that he was to be leaving for Zimbabwe and suggested that they should meet again on 16 May 2002 or as soon as possible after that date.

[35] On 9 May 2002 the applicant wrote a letter to Dr Pityana (which appeared at pages 32 and 33 of Bundle “B”). In that letter he summarised the discussion which he had had on the matter with Dr Pityana and the fact that he had received the salary and car allowance of a Dean until the end of April 2002 and offered to pay back the salary and other benefits for that period from 10 April until 30 April 2002, since he had performed the functions of a Dean until 9 April 2002. (However, he later conceded that he was paid the Dean’s salary until 31 May 2002.) He also emphasised in the letter that he was still considering early retirement and expressed concern that if he returned to the Department of Physics as a Professor, which he said Dr Pityana was suggesting, that would have serious financial consequences for him. He also mentioned that he had nine months long leave and a number of days of vacation leave at the end of his term as Dean on 31 March 2002. On early retirement and at the end of his term as Dean, the abovementioned leave as well as the pro rata payment of his service bonus would have been at the salary of a Dean.

[36] He then pointed out that Dr Pityana had responded as follows to his concerns:

1. That the applicant’s return to the Department of Physics would not influence the payment of the abovementioned benefits at a Dean’s salary should the applicant decide to go on early retirement and this decision Dr Pityana undertook to confirm in writing.

2. That it was not necessary for the applicant to pay back the salary and car allowance that he had received for the period 10 April to 30 April 2002.

3. That the applicant’s salary would be adjusted to that of a Professor from 1 May 2002.

[37] The applicant said he had thanked Dr Pityana for the frank and friendly discussions which the two had had during the past four months and Dr Pityana’s assurance that employees at the respondent would be treated fairly.

[38] On 16 May 2002 the applicant wrote another letter to Dr Pityana in which, among other things, he requested clarification about his position and further enquired about his request for early retirement. There was, regrettably, no response to the letter.

[39] The applicant further referred to another letter which he addressed to Dr Pityana on 1 July 2002 (filed at page 41 to 44 of Bundle “B”). In this letter he asked for permission to be retired from the respondent with effect from 30 September 2002. He motivated his request for the early retirement. Towards the end of the letter he stated the following:

“I have been informed by Channel Management Services … that they need at least two months to finalise pension related issues. Therefore, I have to make a final decision regarding my retirement (on 30 September 2002) before 31 July 2002.

Proposals for future employment at Unisa

I am convinced that I can still make a meaningful contribution to Unisa if I am offered the opportunity. Therefore, I am prepared to consider one of the following alternative options before the end of July 2002.

• Redeployment within Unisa to focus on specific and well-defined tasks, preferably research-related, as a permanent employee at a salary comparable to that of a Dean before 1 October 2002.

• Appointment on a fixed term contract basis after early retirement on 30 September 2002 for a period of three years with a view to performing specific and well-defined tasks, preferably research-related, for the University at a remuneration rate to be negotiated.

If we can reach an agreement before 31 July 2002, I am prepared:

• to serve Unisa with enthusiasm and to the best of my ability till the end of the contract period or retirement;

• to withdraw the CCMA/Labour Court case.

(Signed by the applicant.)”

[40] Dr Pityana responded per his letter dated 31 July 2002 (which appears at pages 45-46 of Bundle “B”). It read as follows:

“Dear Professor Reynhardt

Re : YOUR EARLY RETIREMENT

Your letter of the 12^th herein refers.

I sincerely regret that you appear to have come to the conclusion that you should proceed with your application for early retirement. I am aware that you have shared your plans with Mr Moloto who has briefed you about the status of our consultations regarding the proposal to establish a faculty academic and research development office.

I confirm that it is regrettable for Unisa and indeed any institution for a long-serving senior academic to leave the institution in less than congenial circumstances. It was because of my concern that I sought to dissuade you from resigning in the wake of your failure to get your appointment as Dean of the Faculty of Science renewed. I believe that you have a lot to offer to this university and I wanted to find space to enable you to do that.

Unfortunately, I am not in a position to work to the deadlines your own circumstances dictate. You will be aware that we now have approval in principle from CCHR to establish faculty positions of academic and research development officers. We now have to work out the details, including remuneration. We also need to consult with the Deans’ Committee to secure their support of a scheme that is after all intended to strengthen their services. The proposal will then be taken to Management and then to CCHR. The appointment of the specific personnel must also be negotiated and approved, as is practice at Unisa. The sum total of this situation is that we are in no position to give positive guarantees except our own personal support for your candidature.

However, I have another concern. It is that anyone we appoint would need to have the confidence of the ECF and the Dean. Such a candidate will also have to be committed to Council Policy on employment equity and advance in particular younger black academics and research that reflects national goals. To be frank, the pursuance of the action against the university at CCMA will militate against such confidence. I also feel that aggrieved as you continue to feel about the appointment of the Dean, you will find it difficult to function meaningfully within the Faculty under new leadership.

In the light of this, I have had to concede, though reluctantly, that we should support your application for early retirement. I have asked Mr Moloto to process it. Any action you institute against the university at CCMA will, of course, be vigorously resisted.

Yours sincerely,

Signed Prof N Barney Pityana

PRINCIPAL AND VICE-CHANCELLOR”

[41] The applicant said he disagreed with Dr Pityana’s idea that he (the applicant) did not have the confidence of the ECF, which meant the executive committee of the faculty. He said he was absolutely sure that he still had the confidence of the ECF. He further said he was shocked to read Dr Pityana’s comment that a successful candidate would need to be committed to council policy on employment equity and advance in particular younger black academics and research that reflected national goals, because he said when he was Dean of the Faculty of Science he did several things to promote affirmative action and to help young black academics.

[42] In the above regard, the applicant referred the Court to a report compiled by him as the convenor of the research and bursaries committee (RBC) task group in August 2001 (see pages 304-361 of Bundle “B”). He referred particularly to paragraph 11 of the report, appearing at page 334 of Bundle “B”, which dealt with the following:

“RESEARCH DEVELOPMENT OF BLACK ACADEMICS

One of the most important tasks of Unisa during the next decade is to prepare Black South African scientists for positions of scientific leadership, thereby diversifying, strengthening and sustaining the University’s and the nation’s research capabilities. It is therefore essential that the quality of Unisa’s research be second to none and that the necessary steps be taken to ensure that the University will offer M&D programmes of the highest quality in future. (M&D programmes being presumably Masters and Doctoral programmes.)

The Black component of academics has increased substantially during the past few years and it is anticipated that the ratio of Black to White academics will be increased further with a view to reflecting the demographics of the country. The research leadership, therefore, will have to come from the ranks of Black academics to a large extent and it is obvious that the University will have to invest heavily in the development of the research capabilities of young Black academics.

For the purpose of proposing a policy for the support of Black academics, the following categories of Black academics should be considered:

• Black academics without D degrees.

• Black academics with D degrees but who are not yet rates by the NRF.

• Senior Black academics who are recognised by peers as well-established researchers.”

[43] On this basis the applicant was surprised about the apparent insinuation in Dr Pityana’s letter where he commented about a potential successful candidate having “to be committed to council policy on employment equity and advance in particular younger Black academics and research that reflected national goals” in the light of the applicant’s well-documented efforts towards achieving that very same goal. He told the Court that the report had been accepted by council and that it was only awaiting implementation. He also listed a number of activities and events which he undertook or was engaged in that helped the development and advancement of Black students and academics at Unisa. He therefore felt that Dr Pityana’s insinuation in his letter that the applicant was against transformation was an insult to him.

[44] On the following day (1 August 2002) the applicant addressed a letter to Mr Moloto in which, among other things, he referred to Dr Pityana’s letter of the previous day. The letter read as follows:

“Human Resource Executive

Unisa

Mr Moloto,

I refer to our conversation on 30 July 2002 regarding my future association with Unisa. I left your office under the impression that the institution of the posts Faculty Academic Development and Research Directors would be approved by Council on 7 August and that I would be considered for the post in the Faculty of Science. In the meantime I have received a letter from the Principal, dated 31 July 2002, in which he states that my early retirement has been approved, presumably from 30 September 2002. My interpretation of the Principal’s letter is that, for the reasons mentioned in the latter part of his letter, I will not be considered for the aforementioned position, either as a permanent or a fixed term employee.

Referring to the reasons listed in the Principal’s letter, I feel compelled to put the following comments on record:

• I am convinced that I have the confidence of the ECF and the Faculty, as demonstrated by the approximately 90% support that I received in the opinion poll held in the Faculty during February 2002.

• During my term as Dean of the Faculty of Science I demonstrated my commitment to the employment equity policy of the University clearly. From 1999 to 2002 the percentage of Black staff in the Faculty almost doubled from 14% to 27%. In addition, many young Black academics in the Faculty can testify to the fact that I played a major role in supporting them as far as academic matters are concerned. It should also be kept in mind that I was the Chairperson of the RBC Task Group tasked with formulating new research policies for the development/support of Black researchers.

• I find it strange that my pursuance of the action against the University at the CCMA ‘will militate against such confidence’, referring to the confidence of the ECF and the Dean. It is my basic right to follow the CCMA route. The reasons are stated in detail in the CCMA documentation, and I take exception to the University using it as an argument against my appointment to any post.

• I communicated my feelings about the process that unfolded during the Dean’s appointment to the Principal as far back as May, and at the time he treated me with understanding and commiseration.

I am disappointed that I will not b afforded the opportunity to serve the University in a position that I am well-qualified for and that I was looking forward to. It is regrettable that it took four months to come to a final decision. In the process expectations were created which did not materialise. It is obvious that all the ‘reasons’ proffered to disqualify me from appointment to the abovementioned post have existed since the beginning of this exercise.

The issue of the payment of long and vacation leave at early retirement was discussed at meetings with you and the Principal. Based on our agreement (see my letter dated 9 May 2002 addressed to the Principal), I qualify for the following long and vacation leave:

Long leave:

On 31 March 2002 : 210 + 60 days = 270 days

For period 1 April to 31 May 2002 : 2/36x60 = 3 days

Total : 273 days

Vacation leave:

On 31 May 2002 : 15 + 13 days = 28 days

For period 1 June to 30 September 2002 : 10 days

Service bonus:

On 30 September 2002 : 6 months as Dean + 4 months as Professor

Remuneration for leave and service bonus on retirement (30 September 2002):

Long leave at salary of Dean: 273/(30x12)xR356 484 = R270 334

Vacation leave at salary of Dean: 28/(30x12)xR356 484 = R 27 727

Vacation leave at salary of Prof: 10/(30x12)xR251 760 = R 6 993

Service bonus at salary of Dean: 6/(12x12)xR356 484 = R 14 854

Service bonus at salary of Prof: 4/(12x12)xR251 760 = R 6 993

Total : R326 901

Sincerely yours

Signed EC Reynhardt

Faculty of Science”

(During the trial the amount of R326 901, was amended, by agreement – presumably on a “without prejudice” basis - between the parties, to R240 308.) Similarly the damages originally claimed in the amount of R886 342 were amended to be R421 231. Therefore, should the Court find that the applicant succeeded in proving that the respondent was liable towards the applicant in respect of those claims, calculation of quantum thereof will no longer be necessary.

[45] It was not in dispute that the salary notches for Professors and Deans with effect from 1 January 2002 were R261 760 per annum and R356 484 per annum respectively.

[46] In challenging the competency of Professor Summers, the applicant pointed out that as Professor in the Department of Chemistry, Professor Summers had shown lack of leadership and skill as evident in the report on the findings of the Chemistry Review Committee based on the audit inspection that was carried out during the period 24 – 28 January 2000 by means of panel interviews with all members of the Chemistry staff under the chairmanship of the Vice Dean of the Faculty of Science. The panel consisted of the following academics: Professor NJ Coville who was currently the Director of the Applied Chemistry and Chemical Technology Centre and held the Chair of Inorganic Chemistry at the University of the Witwatersrand; Miss MG Makondo who was a lecturer in the Department of Social Work at Unisa and Professor JCA Boeyens, who was then at the Department of Chemistry at the University of Pretoria and was the former Head of Chemistry and Dean of the Faculty of Science at the University of the Witwatersrand. Professor Boeyens held an “A” NRF rating and was later called as a witness for the applicant. Indeed, this report severely criticised the qualities of Professor Summers as a leader. However, it was recorded in the report that Professor Summers openly challenged the competence and impartiality of the panel system applied.

[47] The applicant further referred the Court to the interim report compiled by Professor Herbst based on the inspection report relating to the Chemistry Laboratories at Unisa (see the report at Page 292 of Bundle “B”). He told the Court that as that time Professor Summers was then the Head of the Department of Chemistry. In terms of the report a lot of shortcomings were found to exist in this Department.

[48] He further pointed out that it was one thing not to be re-appointed but it was another to be treated as a “nobody” which was what happened to him. He had to wait for months only to be officially informed that he was not successful for re-appointment to the second term. He acknowledged that he received the Dean’s salary for the month of April 2002.

[49] He also referred to the document at page 370 in Bundle “B” entitled “Departmental/Operational Unit Staff Profile as at 31 March 2002 – presented at CCHR 25 April 2002” and this document ran up to page 460 in the Bundle. He referred particularly to page 456 which indicated that out of the total of 14 Deans and Deputy Deans appointed as at that time, 5 were white and 9 were black, which represented the ratio of 36% : 64% in favour of blacks.

[50] When asked, under cross-examination, as to why he believed that he was unfairly discriminated against, the applicant stated that the majority of the selection committee found him appointable and he did not see how the council could change the findings of the selection committee. He also stated that when the circular dated 18 January 2002 was issued by the Office of the Principal, Professor Summers was already a full Professor of Chemistry, Sub-discipline of Organic Chemistry. According to the applicant, Professor Summers had acted as Acting Head of Department of Chemistry from 1 December 2000 to 31 December 2001. As from 1 January 2002 he became the Head of that Department.

[51] He acknowledged that the document appearing at page 474 of Bundle “B” was the employment equity policy for Unisa. The policy incorporated the Employment Equity Plan for the respondent. He stated that Ms Baloyi was an official in the Employment Equity Office and the Employment Equity Manager was Mr Phatlhane. These two officials were later to be called as witnesses on behalf of the respondent.

[52] The applicant further conceded that he had in fact been paid the salary of a Dean until the end of May 2002. In fact what happened, according to him, was that initially he was paid as a Dean up to the end of April 2002 and then as Professor for the month of May 2002. However he later received arrear salary (“backpay”) of a Dean’s salary for the month of May 2002. Thereafter he was paid as a Professor for the period 1 June 2002 to 30 September 2002.

[53] At this stage, incidentally, the applicant corrected the date appearing in the third sentence of his letter dated 9 May 2002 (which is filed at page 32 of Bundle “B”) and said that date should not read 7 April 2002 but 7 May 2002. It was clear that this was only a typographical error.

[54] Mr van der Westhuizen then put it to the applicant that Dr Pityana would deny that he gave the applicant any assurance as alleged by the applicant in his letter of 9 May 2002. The applicant said he did not think so. It was further put to him that Dr Pityana would say he sincerely apologised to the applicant but, however, that he never agreed about any payments of leave and bonus to the applicant at the Dean’s salary scale if the applicant retired. The applicant pointed out that after his discussion with Dr Pityana on these matters, he had put all the points discussed in writing as shown in his letter which was delivered through the internal mail by the messenger and according to him that mode of delivery was very reliable. He had thereafter again met Dr Pityana on 23 May 2002 although he did not raise or refer to his letter of 9 May 2002 again. He only mentioned to Dr Pityana the issues of long leave, bonus and pension. He insisted that there was a verbal agreement between him and Dr Pityana on these issues. Mr van der Westhuizen indicated that Dr Pityana would deny all that.

[55] The applicant also said he did not know why the respondent had paid him as a Dean from 10 April 2002 to 31 May 2002 because he had stopped working as a Dean on 9 April 2002, albeit his term of office as a Dean having expired on 31 March 2002.

[56] It was further put to him that Mr Moloto would deny that he ever told him to continue working as a Dean, to which the applicant said he had no doubt in his mind that Mr Moloto said so. He said when he had expressed his concern to Mr Moloto about sharing the same office with Professor Summers, Mr Moloto had said: “Don’t worry, it won’t happen.” It was further put to the applicant that Mr Moloto would deny ever receiving the applicant’s letter dated 27 March 2002 (filed at page 21 of Bundle “B”). The applicant pointed out that on 11 April 2002 he had written another letter to Mr Moloto in which he quoted the contents of his letter of 27 March 2002 and that Mr Moloto had subsequently responded to that letter (of 11 April 2002). According to the applicant, it would therefore not be true that Mr Moloto should deny receipt of his letter of 27 March 2002.

[57] He further stated that as at 31 March 2002 there were 6 Deanship positions which were occupied as follows:

Faculty Incumbent Race

1. Arts Professor Makhanya Black

2. Economics & Management

Sciences Professor Shahia White

3. English Professor Mda Black

4. Theology Professor Maluleka Black

5. Law Vacant

6. Science Professor Reynhardt (applicant) White.

He conceded that as at 31 March 2002 Professor Maré (a White female) was acting as Dean in the Faculty of Law. To the suggestion that Professor Maluleka might also have been acting as Dean in the Faculty of Theology, the applicant said he did not know. It was put to him that Professor Maluleka was only appointed as Dean of the Faculty of Theology with effect from 1 April 2002. The applicant stated that it followed therefore that as at 31 March 2002 Professor Maluleka’s appointment had already been approved.

[58] Mr van der Westhuizen then referred the applicant to the numerical targets as contained in the respondent’s Employment Equity Plan and appearing at page 158(a) of Bundle “B” which related to the period 2001 to 2002. It was put to the applicant that in the first category of top management (which was the category of Deans and Deputy Deans) during the said period only two White males were to be appointed and that that goal had already been exceeded. The applicant was unable to comment since he said he was only seeing that document for the first time.

[59] It was also put to the applicant that as at 19 March 2002 there were no Coloured males in the first category. The applicant disagreed and pointed out that Professor Dick was a Coloured male in the Faculty of Arts. On this aspect Mr van der Westhuizen was relying on the documents filed at pages 71 and 72 of the Pleadings Bundle (Bundle “A”). The applicant conceded that indeed the name of Professor Dick appeared on the second page of that document at Page 72 of the Bundle. At this stage Mr Hiemstra interjected and pointed out that in fact according to the list in that document there were actually three Coloured staff members who were appointed either as Deans, Vice Deans or Heads of Department as at 19 March 2002, namely Professors AL Dick, NA Botha and GJ Summers.

[60] Mr van der Westhuizen put it to the applicant that it was the respondent’s case that by appointing Professor Summers as Dean was because there was no Coloured Dean at that time and that the appointment fitted the respondent’s plan to employ Coloured people during that year. The applicant’s response was that in terms of the respondent’s employment equity report for the period July 2000 to September 2001 (appearing at pages 543 and 544 of Bundle “B”) there were already two Coloured persons appointed in that category.

[61] The applicant further stated that in 2002 he was about 58 years of age and that his idea was to retire at the age of 60. However, when he observed the trend of Black Professors being appointed as Dean, he then approached Dr Pityana in or about January 2002 about the idea of his early retirement. That was when Dr Pityana had told him that he should take two terms as Dean in order to finalise the projects he had started. Upon that advice he had then reconsidered his position against retiring early. Otherwise, in the ordinary course, his normal retirement date would have been in November 2004.

[62] He told the Court that, as damages he had suffered, he was claiming only the difference between what he would have earned as a Dean and what he would have earned as a Professor for the three year period (which would have been his second term period as a Dean) commencing 1 April 2002 to 31 March 2005. He said if he was re-appointed as a Dean for the second term, he would have stayed on for the full term until the end of March 2005. It was then put to him that since his retirement date was November 2004 he could not possibly have stayed on (when he would have turned 60) until the end of March 2005. The applicant conceded this point and suggested that the calculations should be based on the assumption that he would indeed have retired at the end of November 2004.

[63] The next witness for the applicant was Professor Jan Christoffel Antonie Boeyens. He gave a long catalogue of his qualifications, experience and academic achievements, which included his “A” NRF rating. He was one of the three-member panel that compiled the report on the findings of the Chemistry Review Committee based on the audit inspection of the Department of Chemistry conducted during the period 24-28 January 2000, referred to above (see page 78 of Bundle “B”). As already stated, Professor Summers was severely criticised in that report as lacking in skill and leadership.

[64] Professor Boeyens testified that, on the basis of Professor Summers’ curriculum vitae, he would recommend him only for appointment at the level of a lecturer in Polymer Chemistry, but not in Organic Chemistry because Professor Summers did not have any higher qualification in respect of the latter field. According to him (Professor Boeyens) he could not therefore understand why Professor Summers had been appointed as Professor of Organic Chemistry at Unisa in the first place.

[65] Some of the evidence adduced by Professor Boeyens, mostly critical of Professor Summers, was either based on hearsay or was simply irrelevant. For that reason I do not deem it necessary to include it in this judgment.

[66] That concluded the case for the applicant.

The Respondent’s Case

[67] The first witness for the respondent was Ms Joyce Baloyi who reported to Mr Phatlhane who was the Employment Equity Manager. Mr Phatlhane in turn reported to Mr Moloto who was the Executive Director: Human Resources.

[68] Ms Baloyi testified that in 2002 the role of the Employment Equity Officer was to see to it that the Employment Equity Act was adhered to, and that the objective set out in the respondent’s Employment Equity Plan were achieved. In that regard her office would advise the Selection Committee accordingly. She confirmed that she was involved in the Selection Committee deliberations which eventually saw the appointment of Professor Summers as Dean of the Faculty of Science in 2002. She said she was however not involved in the opinion polls that were held in relation to the issue appointability or otherwise of the applicant and Professor Summers.

[69] She further testified that the employment equity issues were matters only to be raised after the interviews were conducted and after the appointability phase of the process had been reached. The employment equity considerations related to gender, race and disability. These considerations were not taken into account during the deliberations because of the fear that the issue might possibly influence some members of the Selection Committee in their decision. As always, she had to make preparations prior to interviews for the Deanship. She discussed the process with her manager, Mr Phatlhane. Having done so, they found that the Employment Equity Plan had to be applied in this particular case because there was no Coloured person appointed at the level of Dean. The procedural guideline of the meeting was that a decision would be reached by way of a consensus, meaning unanimity among the members. However, if there was no consensus then there would be a vote. She explained the hierarchy of the appointment process, namely the Selection Committee would make a recommendation to the Management Committee which in turn would report and make its own recommendation to the CCHR which in turn would make its report and recommendation to the Full Council of the respondent, which would then make the final decision on the appointment.

[70] She told the Court that after both the applicant and Professor Summers were interviewed the Chairman then asked the senior member of the Faculty present (Professor Bishop) to give his input and opinion in relation to the two candidates. Whilst Professor Bishop was giving his overview on the matter, he was interrupted by Professor Pretorius who wanted to know the implications of finding both candidates appointable. At that stage Professor Musoma the Chairman requested the witness to explain the implications thereof to the meeting, which the witness said he did. However, she said she did not tell the meeting who was appointable or explain to the meeting that if both candidates were found to be appointable there was the likelihood that the current one (ie Professor Summers) might be favoured. Instead she only asked the members to proceed and assess the candidates on the aspect of appointability and that only thereafter would the issue of employment equity consideration be decided upon.

[71] She further explained that in terms of the employment equity considerations the respondent did not necessarily require the best candidate but only the one who had the potential to do the job, that is, a person who met the minimum requirements. She told the Selection Committee members that their task or role was only to assess the candidates on the basis of the selection criteria before them as contained in the document filed at page 4-5 of Bundle “B”. She said it appeared to her that some members of the Selection Committee were not looking at the selection criteria in an objective way. She said the meeting was highly emotional with some people even crying and others simply making sweeping and conclusive statements such as “So and so is appointable” without furnishing any motivation therefor. She stated that according to the procedure once a candidate was invited for interview, it meant that he/she met the minimum requirements on paper. She then referred to her own report which she compiled at the conclusion of the meeting (which was one of the four reports submitted to the management). She stated that in her report she mentioned about the fact that Professor Summers was asked during the interview personal questions about his involvement in conflict within the Department of Chemistry, to which he gave his responses which were then deliberately misinterpreted and used against him by members of the Faculty as a reason not to find him appointable. Those members were saying his responses were limited to his Department and not the Faculty as a whole. She stated that Professor Summers was also questioned about an incident that allegedly occurred in 2001 where Professor Summers was said to have, in a certain presentation, indicated that the number of White females in the Faculty was high and needed to be reduced. Despite Professor Summers having denied that allegation, it was still taken against him by the members.

[72] The witness said she agreed with the report of Professor Mofokeng (at page 124 of Bundle “B”) which, among other things, expressed a feeling that a certain group of the Faculty representatives at the Selection Committee meeting were prejudiced against Professor Summers, even before they served in the Committee and therefore could in no way have been objective when evaluating him.

[73] Ms Baloyi conceded that there was no dispute about the fact that the applicant was a better candidate than Professor Summers. The bottom line however was that, as she put it, “we had to empower Professor Summers who had to be empowered”. According to her, the Selection Committee did not achieve its objective. She said so because it was supposed to have recommended a person (one of the two candidates) but, instead, it submitted minority reports and left it to the management to decide.

[74] Under cross-examination Ms Baloyi admitted, once again, that the applicant was the best candidate and, on that basis, she conceded that it was outrageous that two members of the Committee had found him not appointable. She further stated that even if there was a White candidate who was by far the best candidate, that factor would be disregarded if there was also a Black candidate who was found to be appointable, when the employment equity considerations were to be taken into account.

[75] The witness was then referred to the respondent’s employment equity policy (appearing at page 153 of Bundle “B”) which partly provided as follows:

“3. Occupational categories and levels where demographic profile satisfactory:

In the event where your department/operational unit has achieved a state of balance in a way, please do not bother yourselves to try and do anything then. The University will have to consider applying the principle of the ‘most suitable candidate’ as and when vacancies have to be filled in such categories and level. The principle of ‘preferential treatment’ in view of Affirmative Action’ considerations shall not apply in such incidences. The monitoring process will take care and ensure that we do not create skewness again in applying the principle.”

[76] This principle, it was pointed out to the witness, was further confirmed under the respondent’s equity plan (see page 188(b) of Bundle “B”) under the heading “General Strategies” where the following appeared:

“In areas where numerical goals have been met already, the most suitable candidate will be appointed or promoted to existing vacancies.”

Ms Baloyi agreed that that was indeed the position.

[77] Mr Hiemstra then referred the witness to the document at page 258 in Bundle “B” entitled “A REPORT ON THE STATUS OF PROGRESS REGARDING IMPLEMENTATION OF EMPLOYMENT EQUITY AT UNISA – 2000 – 2002” with particular reference to page 279 thereof where under paragraph 6.3 it was recorded, among other things, that “The category of Deans/Deputy Deans is more or less representing compliance measures similar to Top Management”. To this, in her response, the witness said that position was only after the appointment, (referring to the period after June 2002). She was then reminded about the fact that the statistic as appearing at page 465 in Bundle “B” which reflected 64% of Blacks as compared to 36% of Whites in the Deans and Deputy Deans category was information as at 31 March 2002 (see page 370 of Bundle “B”). The witness conceded that indeed as at June 2002 there were some changes in the Deans and Deputy Deans category.

[78] Ms Baloyi was then asked a specific question as to how many Deans and Deputy Deans were there as at 21 February 2002 when the Selection Committee convened and, further, how many of those were Black and how many were White. Ms Baloyi said she did not have that information right away. However, she indicated that the respondent’s concern was to appoint a Coloured Dean. She conceded yet again that the applicant was better than Professor Summers. She was then asked as to what the target ratio was, in terms of Blacks as to Whites. She said the long-term goal was to achieve a 70%:30% as to Blacks:Whites but that the respondent was aware that such a target could only be achieved over a long period of time. In this regard, she referred to the document at page 457 of Bundle “B”. She said as a short-term goal 60%:40% could be acceptable, although she admitted, under re-examination, that it was not stated anywhere that 60%:40% as to Blacks:Whites would be regarded as a short-term goal.

[79] The next witness called by the respondent was Ntamodisana Adam Phatlhane. He told the Court that during 2002 he was employed by the respondent as the Employment Equity Manager but that title had since been changed to Employment Equity Director since 1 November 2004 after the merger of Unisa, Technikon SA and The Distance Education Component of Vista University known as Vudec.

[80] Mr Phatlhane told the Court that in 2002 he reported to the Executive Director: Human Resources (which at the time was known as Registrar: Professional Services) the incumbent of which was Professor van Aswegen and later Mr JK Moloto. During 2002 it was already Mr Moloto who was the incumbent and to whom he reported. Mr Moloto in turn reported to the Principal, Dr Pityana. He told the Court that the role of the Employment Equity Office was a response of national imperative in terms of the Employment Equity Act. Further, it was to ensure a discrimination-free environment within the respondent’s workplace. In this regard, empowerment of previously disadvantaged people was to be encouraged and promoted. There were three employment equity officers who reported to him, one of whom was Ms Baloyi.

[81] He told the Court that the role of his office in the Selection Committee was to make preparations for the meetings which included tackling their strategy plans and employment equity plans on the basis of predetermined numerical goal objectives. The consideration on this aspect was in relation to race, gender and disability. Preparation was done prior to the Selection Committee meeting. His office further provided guidance and advice to the Selection Committee meeting when a recommendation was to be taken towards the end of the meeting. He pointed out, however, that the members were supposed first to deliberate on the merits and demerits of each candidate in order to ensure that there was no bias. In other words, the members were supposed first to determine the appointability or otherwise of each candidate. If both candidates were White there would be no problem, but not when there was a White and Black person or male and female person. The guidance and advice by his office aforesaid was only given when the appointability issue had been decided. He said they first ranked candidates in order of their performance and only then that they took into account the employment equity considerations which in turn were ranked in their order of preference, as follows:

1. Black female

2. Black male

3. White female

4. White male

5. Foreign nationals.

The Black persons referred to were as defined in the Employment Equity Act which included Africans, Coloureds and Indians.

[82] Mr Phatlhane testified that, as always, his office made preparations prior to the Selection Committee meeting held on 21 February 2002 in respect of the appointment of the new Dean of the Faculty of Science. He told the Court that he was not involved at the nomination stage of the candidates.

[83] He acknowledged the guideline document of Unisa in relation to the employment equity dimensions as appearing at page 153 of Bundle “B” as well as the Unisa’s Employment Equity Plan appearing at pages 155(a)-216(b) of Bundle “B”. He stated that the Employment Equity Plan was generated in January 2000 but was updated from time to time, at least once yearly, due to change of profile on the ground.

[84] He also told the Court that he was responsible for the report dated 19 April 2002 which was prepared for the CCHR workshop (at page 370 of Bundle “B”) and which (at page 457) dealt with the heading “COMPARISON: BLACK AND WHITE ACADEMIC HEADS OF DEPARTMENTS AND MALES VIS-A-VIS FEMALES”. In that regard a “note” was recorded at the bottom of that particular page which read as follows:

“This area must be addressed quite aggressively in terms of race and gender following the same principle of 70/30% for achieving equitable representation.”

As part of his duty, he submitted periodical employment equity reports to the Department of Labour, copies of which were also included in Bundle “B”.

[85] Mr Phatlhane further told the Court that he was involved in the drafting of the Employment Equity Policy for Unisa in his capacity as Chairman of NEHAWU on the respondent’s campus. When he was appointed as Employment Equity Manager on 1 November 1999 the Employment Equity Policy was already operational. He explained that prior to the introduction of the Employment Equity Policy there were various affirmative action policy documents in respect of various staff units which were then consolidated and incorporated into one Employment Equity Policy document.

[86] Referring back to the stage when he and Ms Baloyi met to do preparations for the Selection Committee meeting for 21 February 2002, he stated that they had realised that at the level of Deans, 67% represented Whites and 33% represented Blacks. There were 6 positions at the time four of which were occupied by Whites and two by Blacks. They had then looked at the numerical goals which they had set for themselves. Having considered everything they tabled their advice for the Selection Committee meeting which would be dealt with at the end of the meeting. Ms Baloyi would take the advice to the Selection Committee. Once the issue of appointability was determined, then, and only then, Ms Baloyi would produce or table the advice to the Selection Committee. He further stated that if more than one person was found appointable then the candidates would be ranked according to their performance (that is, on merit). Thereafter, where applicable, the employment equity consideration would be taken into account which could then possibly see the first rated candidate on merit being overtaken by the second best one. He told the Court that in the present instance their advice was that both the applicant and Professor Summers were found to be appointable, and that Professor Summers (by virtue of being a Coloured person) should be recommended for appointment. He was present at the CCHR meeting held on 19 March 2002 which, among other things, dealt with the matter of the applicant and Professor Summers. The minutes of the CCHR meeting appeared from page 114 of Bundle “B” and at page 120 the following was recorded in respect of the matter in question:

“NOTED THAT THE SELECTION COMMITTEE HAD BEEN DIVIDED REGADING THE MATTER OF APPOINTABILITY, BUT THAT THE COUNCIL COMMITTEE ON HUMAN RESOURCES FOUND BOTH THE CANDIDATES TO BE APPOINTABLE.

RECOMMENDED TO COUNCIL THAT, ON THE BASIS OF THE EMPLOYMENT EQUITY POLICY, PROF GJ SUMMERS BE APPOINTED AS DEAN OF THE FACULTY OF SCIENCE FROM 1 APRIL 2002 FOR A THREE-YEAR TERM.”

[87] He stated that it was normal procedure at the CCHR meetings not to record the deliberations but he was sure that there was some discussion on the matter which was tape recorded. He remembered that there was concern at the CCHR meeting about the Selection Committee having not made a recommendation on the matter. He had also explained to the meeting about his meeting with Ms Baloyi on the eve of the Selection Committee meeting and about what their conclusions were, which was to have Professor Summers recommended for appointment. Mr Phatlhane further told the Court that he thought that prior to 31 March 2002 out of six Deans, four of them were White and two were Black. This represented the ratio of 67%: 33% in favour of Whites. However, after 31 March 2002 the same ratio was reversed in favour of Black Deans. He also said he thought that there was a total of nine Deputy Deans of whom six were Black and three were White, that being the position prior to 31 March 2002. On that basis, he conceded, that prior to 31 March 2002 there was a total of fifteen Deans and Deputy Deans of whom seven were White and eight were Black. He further stated that after 31 March 2002 he thought the racial profile of Deputy Deans had remained the same. At that stage the Court pointed out to the witness that it was unhelpful to the Court of him to keep on saying “I think”, which was only indicative of being unsure about what he was talking about.

[88] Mr Phatlhane acknowledged, under cross-examination, the fact that the applicant had been with Unisa for some 35 years and that his academic stature was unmatched, and that the opinion poll in the applicant’s favour had been about 97%. The witness further admitted that Professor Summers was junior to the applicant on merit. However, the witness denied the suggestion that the applicant’s fundamental dignity was impaired by his non-appointment.

[89] He reiterated that prior to 31 March 2002 the ratio of Deanship at Unisa was 67%: 33% in favour of Whites over Blacks. He was then asked who were the White Deans representing 67% and who were the Black Deans representing 33%. In this regard Mr Hiemstra suggested to the witness to refer to the list of academics as appearing at pages 71 and 72 of the Pleadings Bundle (Bundle “A”). Using the list, the witness called out the following names:

White Deans:

Professor Neethling

Professor Kritzinger

Professor Shaia

Professor Reynhardt (the applicant)

Black Deans:

Professor Makhanya

Professor Mda

[90] It was pointed out to the witness that Professors Neethling and Kritzinger were no longer there as at that time and only Professor Shaia and the applicant who were White Deans still in service. To this question Mr Phatlhane stated that although he was aware that Professors Kritzinger and Neethling were no longer in service, he still used that list nevertheless. He acknowledged that in reality there were only two White Deans and two Black Deans in office which then would have represented a 50%:50% ratio. The other two vacancies were not yet filled as at 31 March 2002. He admitted that those two vacant posts could have been filled by Black people.

[91] Mr Phatlhane said he could not dispute the proposition suggested to him that Professor Neethling’s term of office expired on 31 December 2001. It was also put to him that Professor Neethling was replaced by Professor Atilola (who was a Black foreigner) but who unfortunately passed away three weeks after his appointment and before he assumed office. In response Mr Phatlhane said he was aware that Professor Atilola had passed away but he was unaware that he had replaced Professor Neethling because at that time he (Mr Phatlhane) was not involved with the Selection Committee. Mr Hiemstra suggested to him that, as the Employment Equity Manager, he ought to have known about that information from the respondent’s statistics. Mr Phatlhane pointed out that, as a foreigner, Professor Atilola was not treated as a previously disadvantaged person. He was asked, nevertheless, to explain why on the witness’ computer screen, Professor Neethling’s name still appeared despite an appointment having been made of his replacement. To this, the witness said it was possible that he had used an old list, a statement which Mr Hiemstra suggested to the witness as shocking that the witness could have used an old list and took it to the Selection Committee to the detriment of the applicant.

[92] The witness further confirmed that he would have been involved in the preparation for the Selection Committee meeting that was responsible for the interviewing of Professor Atilola. Further, that as a member of the CCHR at the time, he would also have known about the recommendation of Professor Atilola for appointment as Dean in replacement of Professor Neethling.

[93] He also knew that Professor Maluleka became Dean of the Faculty of Theology with effect from 1 April 2002, being the same day as the assumption date of Professor Summers as Dean of the Faculty of Science.

[94] The witness further told the Court that the recommendation of Professor Maluleka as Dean was not dealt with at the CCHR meeting of 19 March 2002 (at which the witness was present) and that, for that reason, he would not have known that another Black Professor had been recommended for Deanship. It was put to him that Professor Maluleka’s matter was dealt with prior to 19 March 2002 and that when the witness went to CCHR on 19 March 2002 he already knew that Professor Maluleka had been recommended. The witness said at that stage he did not know about it. He added, however, that he might have seen Professor Maluleka’s recommendation which had not yet been approved.

[95] On the subsequent day of cross-examination the witness was requested to confirm his earlier evidence that he had said that after the appointment of Professor Summers the profile of Deans at Unisa was 67%:33% in favour of Blacks, to which the witness responded in the affirmative. He insisted that he was sure about his averment. It was then put to him that as at that time the profile of Deanship at the University was as follows:

Professor Makhanya (Faculty of Arts) (Black)

Professor Mda (Faculty of Education) (Black)

Professor Summers (Faculty of Science) (Black)

Professor Maluleka (Faculty of Theology) (Black)

Professor Shaia (Faculty of Management and Environmental Science) (White)

(Vacant) (Faculty of Law)

[96] Mr Phatlhane stated that there was also Professor Maré (a White female) who was Dean for the Faculty of Law). It was put to him that Professor Maré’s appointment was only approved with effect from 1 March 2004 and that all the time prior to that she had been acting in the post. The witness said it meant that there must have been a decision taken that she was going to act as a Dean. In other words, the witness acknowledged that prior to 1 March 2004 Professor Maré was only acting as Dean of the Faculty of Law. He was asked why he then told the Court that she was permanently appointed, to which he replied that he had only assumed that she was permanently appointed as Dean. He further said that if there was no decision taken yet by either the full council or the CCHR about Professor Maré’s appointment, then it followed that they (referring to themselves as the officials of the Employment Equity Office) might have made a mistake to regard Professor Maré as permanently appointed.

[97] It was further put to Mr Phatlhane that with the appointments of Professors Summers and Maluleka the representation of Black Deans went up to 80%. The witness disputed this ratio and reiterated that the ratio only changed to 67%:33% in favour of Blacks and he was steadfast in his position on that aspect. He said that was the position because of the fact that out of six Deans two were White and four were Black.

[98] Mr Phatlhane admitted that he apparently gave the CCHR an advice based on wrong information, namely, that as at the time of the meeting (on 19 March 2002) the Deanship ratio was 67%:33% in favour of Whites whereas, according to him, in reality, it was equal at 50%:50%. He hastened to add, however, that even if he had given the correct information of 50%:50% the respondent would still not have arrived at 70%:30% target ratio. He also admitted that he did not tell the meeting about Professor Maluleka’s position (namely that Professor Maluleka had been recommended for appointment as a Dean) because he was not yet aware of that position.

[99] It was further brought to the attention of Mr Phatlhane that at the full council meeting held on 3 March 2002 Professor Maluleka was unanimously approved as Dean of the Faculty of Theology. Mr Phatlhane said he was not aware of that decision because the full council meeting had been held in a “bosberaad” and was not an ordinary meeting and further he had not been aware that the bosberaad would also deal with appointment matters. Further, he said, Professor Maluleka’s matter had gone straight from the Selection Committee to the Full Council, not via the CCHR because it had been unanimously recommended by the Selection Committee. However, he conceded that he was aware that the chances were overwhelming that Professor Maluleka would be appointed as Dean since the Selection Committee’s recommendation was unanimous. He also conceded that he did not inform the CCHR meeting on 19 March 2002 that there was a strong likelihood that Professor Maluleka would be appointed as a Dean but, instead, he gave the meeting the impression that that post was still occupied by a white Dean.

[100] Mr Phatlhane later disputed Mr Hiemstra’s proposition that Professor Maré was appointed as Dean with effect from 1 March 2004. According to Mr Phatlhane Professor Maré’s appointment took effect on 1 April 2002, being the same date as the appointment of Professor Summers. After investigation and perusal of the respondent’s record by the applicant’s legal team, it transpired that the true position was that Professor Maré was appointed as Dean only effective 18 September 2002. In other words, as at the time of the CCHR meeting on 19 March 2002, Professor Maré was still acting in the Dean’s post. Indeed, the letter of acting appointment in respect of Professor Maré dated 22 January 2002 was referred to at page 569 of Bundle “B”.

[101] Mr Phatlhane also told the Court that it was true that Professor Atilola had passed away. He further added that at the time of his death Professor Atilola had acquired the South African citizenship. He said he had not known whether Professor Atilola’s replacement would be a White or a Black Dean.

[102] The next witness for the respondent was Enock Ramodike Maponya. He told the Court that he was involved with Unisa as Chairperson of CCHR. He was the founder member and chairperson from August 1996 to the current date. He was not a Unisa employee. His job was only part-time. He was also a member of Unisa’s Full Council since May 1996 to the current date and also a member of the Executive Committee of the Council. He was a teacher by profession and in the Department of Education for 29 years during which he held positions including that of Headmaster, Deputy Director and Chief Director of Education. He was in the public service from 1971 until 1999 when he left to become a business man.

[103] Mr Maponya told the Court that the role of the CCHR, among other things, was to advise the respondent’s Council on all human resources matters including appointments. The Committee was empowered to finalise appointments from the level of Senior Lecturer to Head of Department (HOD). However, above the Head of Department, that is, from Vice/Deputy Dean upwards, the Committee in those matters would consider the Selection Committee reports and compile their own reports and make their own recommendations which they would then forward to Full Council for finalisation. The powers they used to finalise appointments from the level of Senior Lecturer to HOD aforesaid were delegated powers by the Full Council.

[104] He told the Court that in the case of Professor Summers’ appointment the normal procedure had not been followed at the Selection Committee level because that Committee did not make a recommendation. He testified that at the Full Council meeting held on 3 March 2002 on the agenda was the issue of the appointment of two Deans, namely for the Faculties of Theology and Religious Studies and that of Science. These matters had been referred straight to the Full Council from the Selection Committee because the date of sitting of the Full Council was close to the date when the Selection Committee would sit. In other words, the matters had not gone via the CCHR. The Full Council considered the selection committee reports on Professor Maluleka and on the basis of the Selection Committee’s recommendation Professor Maluleka was approved as Dean of the Faculty of Theology and Religious Studies. However, with regard to the appointment of the Dean of the Faculty of Science, it was realised that the Selection Committee had not made a recommendation but instead it had forwarded minority reports for consideration. The Full Council could not make a decision on the matter and hence referred it to the CCHR to make its recommendation and thereafter to refer the matter back to the Council. He said the Council also observed that the voting at the opinion poll had been conducted along racial lines and the Council thought that was the reason why the Selection Committee could not reach consensus in making its recommendation to Council.

[105] Mr Maponya further told the Court that when they deliberated on the matter at the CCHR meeting on 19 March 2002, they found that there was a need in the present instance to apply the employment equity considerations. He said the respondent had established the ratio target of 70%:30% (Blacks:Whites respectively) which was based on the national demographics of the country, with the aim of addressing employment equity within the respondent.

[106] He further testified that the process of transformation at the level of Deans had been started in 1999 and that Professor Summers was the fifth Black Dean to be appointed since then. He gave the names of Deans appointed since that time as follows:

Professor Makhanya – 1999 (African male)

Professor Shaia – 1999 (White male)

Professor Mda – 1999 (African male)

Professor Maluleka – 3 March 2002 (African male)

Professor Summers – 1 April 2002 (Coloured male)

Professor Maré – August 2002 (White female).

[107] He reiterated that Professor Summers’ appointment was part of the implementation of the transformation process. In particular, they were looking for a Coloured person to come on board at the level of Dean. That was basically the reason why Professor Summers was recommended.

[108] He also agreed that between the two candidates the applicant was superior on merit.

[109] Unlike Mr Phatlhane, Mr Maponya admitted that as at 19 March 2002 he was aware that Professor Maré was only acting as Dean of the Faculty of Law and further that Professor Maluleka’s appointment as Dean for the Faculty of Theology had been finalised. He also confirmed that Professor Atilola was appointed as Dean of the Faculty of Law with effect from 1 January 2002. However, Professor Atilola was ill at the time and during the University recess in January 2002 he passed away before he could assume office.

[110] Under cross-examination, Mr Maponya confirmed that he and the applicant had had a congenial relationship and that they had sat together at breaks during the court proceedings. He further confirmed that he had expressed sadness about the applicant’s departure which he regarded as a great loss to the respondent. According to him, it was a pity that no alternative position could be found for the applicant. He further agreed that since his time as the Chairperson of the CCHR he had never seen as outstanding curriculum vitae as that of the applicant. He also admitted that the promotion of equity at the expense of excellence did not achieve the objective of the Employment Equity Plan. However, in the case of Professor Summers, he believed that he (Professor Summers) met both the requirements of equity and excellence.

[111] The witness also admitted that at the time they considered this matter, there were only four Deans, excluding the applicant, namely Professors Makhanya, Mda, Maluleka and Shaia. There was a vacancy in the Faculty of Law. In other words, it was put to him. the true position was that three out of four Deans at the time were Black, representing 75%:25% in favour of Blacks over Whites. Mr Maponya agreed to this proposition. He further agreed that upon Professor Summers’ appointment, there were then four out of five Deans who were Black, representing 80%:20% in favour of Blacks. He also agreed that when the CCHR sat on 19 March 2002 nobody knew who would fill the vacancy at the Faculty of Law, whether it would be a Black or a White person. The witness said that post was filled by Professor Maré only in or about August 2002.

[112] That concluded the case for the respondent.

The Legal Position

[113] In terms of the Constitution:

“(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The State may not unfairly discriminate directly or indirection against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”

(Section 9 of the Constitution of the Republic of South Africa Act No. 108 of 1996 – (“the Constitution”).)

[114] The EEA was apparently promulgated in fulfilment of the directive stipulated in section 9(4) of the Constitution, to the extent that unfair discrimination existed in the workplace. Sections 5 and 6 of the EEA provide:

“5. Elimination of unfair discrimination. – Every employer must take steps to promote equal opportunity in the work-place by eliminating unfair discrimination in any employment policy or practice.

6. Prohibition of unfair discrimination.

(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

(2) It is not unfair discrimination to –

(a) take affirmative action measures consistent with the purpose of this Act; or

(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

(3) Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1).”

[115] The aspect of affirmative action measures referred to in section 6(2)(a) of the EEA is dealt with under sections 13 and 15, the relevant portions of which provide:

“13. Duties of designated employers –

1. Every designated employer must, in order to achieve employment equity, implement affirmative action measures for people from designated groups in terms of this Act.

2. A designated employer must –

3. consult with its employees as required by section 16;

4. conduct an analysis as required by section 19;

5. prepare an employment equity plan as required by section 20; and

6. report to the Director-General on progress made in implementing its employment equity plan, as required by section 21.

14. …

15. Affirmative action measures. –

(1) Affirmative action measures are measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer.

(2) Affirmative action measures implemented by a designated employer must include –

(a) measures to identify and eliminate employment barriers, including unfair discrimination, which adversely affect people from designated groups.

(b) measures designed to further diversity in the workplace based on equal dignity and respect of all people;

(c) making reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer.

(d) subject to subsection (3), measures to –

(i) ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce; and

(ii) retain and develop people from designated groups and to implement appropriate training measures, including measures in terms of an Act of Parliament providing for skills development.

(3) The measures referred to in subsection (2)(d) exclude preferential treatment and numerical goals, but exclude quotas.

(4) Subject to section 42, nothing in this section requires a designated employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups.”

[116] Clearly, the respondent fitted in one of the definitions of a “designated employer” in section 1 in that (it is common cause) it employed more than 50 employees. Section 42 (referred to in section 15(4) above, merely provides that “in determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General or any person or body applying this Act must … take into account …” certain factors which are listed under that section.

[117] In Harksen v Lane NO & Others 1998(!) SA 300 (CC) the Constitutional Court formulated a two-pronged test approach in determining whether any differentiation between two persons amounted to discrimination and, if so, whether such discrimination was unfair. The test, at paragraph 54, is put as follows:

‘(i) Firstly, does the differentiation amount to “discrimination”? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there has been discrimination will depend upon whether, objectively, the grounds are based on attributes and characteristics which have the ability to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

(ii) If the differentiation amounts to “discrimination” does it amount to “unfair discrimination”? If it has been found to be on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his situation.’

[118] The presumption referred to under the second leg of the Harksen test appears to derive its empowering authority in section 9(5) of the Constitution, referred to above.

[119] It followed that in a work situation, such as in the present instance, where the employee alleged that he or she was discriminated against by the employer on the ground of race (which was a specified ground under section 9(3) and (4) of the Constitution and section 6(1) of the EEA) the onus on the employee was only to prove the existence of the alleged discrimination on such specified ground. Once that was proven then the onus shifted to the employer to satisfy the Court, on a balance of probabilities, that the discrimination was not unfair. (see: Transport & General Workers Union and Another [1999] ILJ 1117 (LC) at 1119; Food & Allied Workers Union and Others [2000] 21 ILJ 1100 (LC) at 1109).

[120] Section 50(2) of the EEA provides, in part, the following:

“If the Labour Court decides that an employee has been unfairly discriminated against, the Court may make any appropriate order that is just and equitable in the circumstances, including -

1. payment of compensation by the employer to that employee;

(b) payment of damages by the employer to that employee;

(see also: Coetzer and Others v Minister of Safety & Security and Another [2003] 24 ILJ 163 (LC) at 177)

Evaluation of Evidence

[121] There is no doubt in my mind that the respondent’s employment equity policy and guidelines conformed substantially to the norms, values and ideals envisaged in the Constitution and the EEA. It was indeed a noble and viable exercise aimed at, initially reducing, and, eventually eradicating, the unfair racial and gender imbalances that had existed in the occupation of top positions within the respondent’s academic and administrative management structures. Of fundamental importance, however, was the manner the respondent, through its officials, implemented the said policy and guidelines. It seemed to me this case was primarily about the enquiry on that issue.

[122] At the outset I should point out that the critical evidence and reports concerning Professor Summers’ performance in any capacity within the University which was aimed at discrediting Professor Summers to the extent of that evidence and those reports has been disregarded for the purpose of this judgment. The reason for doing so is clear. The applicant elected not to cite Professor Summers as a party in these proceedings. As such Professor Summers was not afforded an opportunity to defend himself against the allegations contained in the said evidence and reports.

[123] It was established during the evidence that the respondent sought to rely on its employment equity policy, guidelines and plan in its decision not to appoint the applicant but instead to appoint Professor Summers. The respondent’s own document titled: “Employment Equity at Unisa – Guidelines to Departmental EE Teams” clearly prescribed, among other things, as follows:

“3. Occupational categories and levels where demographic profile satisfactory:

In the event where your department/operational unit has achieved a state balance in a way, please do not bother yourselves to try and do anything then. The University will have to consider applying the principle of the ‘most suitable candidate’ as and when vacancies have to be filled in such categories and level. The principle of ‘preferential treatment’ in view of Affirmative Action’ considerations shall not apply in such incidences. The monitoring process will take care and ensure that we do not create skewness again in applying the principle.”

[124] This principle was also confirmed in the respondent’s employment equity plan that “in areas where numerical goals have been met already, the most suitable will be appointed or promoted to existing vacancies”.

[125] From the evidence of Ms Baloyi and Mr Phatlhane, supported by the documentation presented in the Court Bundle, it was revealed (clearly against the liking of these two witnesses) that the respondent’s numerical target in relation to the filling of vacancies of Deans and Deputy Deans was 70%:30% in favour of Blacks at the time the applicant went for interview. According to both Ms Baloyi and Mr Phatlhane, this target had not yet been reached, and that was the reason the employment equity considerations were taken into account, in favour of Professor Summers. On this point, Mr Phatlhane initially testified that the ratio was 67%:33% in favour of Whites over Blacks prior to 31 March 2002. However, when he was asked to name the White Deans and the Black Deans that would have constituted that ratio of 67%:33% in favour of Blacks, it transpired that Mr Phatlhane had included the names of Professors Neethling and Kritzinger in the White Deans list, despite the fact that these two Professors were no longer in the service at the time. In addition, he also included the name of the applicant, which was erroneous because the post would have been vacant after the applicant’s term of office had expired.

[126] It further transpired that Mr Phatlhane had regarded that the position of Dean of the Faculty of Law was permanently filled by Professor Maré (who was a White female) whereas the fact of the matter was that Professor Maré was only acting in the post. On the contrary, Mr Phatlhane did not take into account the fact that Professor Maluleka had (as at the time of the applicant’s interview) already been recommended for appointment as Dean of the Faculty of Theology and Religious Studies.

[127] This completely wrong statistical information was compiled and incorporated in a presentation by Mr Phatlhane and Ms Baloyi before the Selection Committee meeting which took place on 21 February 2005. This wrong information was subsequently confirmed by Mr Phatlhane at the CCHR meeting of 19 March 2005 as being the motivation for applying the employment equity considerations and thus recommending Professor Summers for the job.

[128] What was strange was the fact that Mr Phatlhane and Ms Baloyi (according to their evidence) had done full preparations for their presentation at the meeting on the eve of its sitting. They must then have had all the correct statistics in front of them. Indeed, I found it utterly beyond my comprehension that Mr Phatlhane could claim, as he did, that when he included the names of Professors Neethling and Kritzinger in the list of current-serving White Deans, he had probably used the “old list”. To my mind, this was a very naïve and simplistic response from a senior official such as Mr Phatlhane was.

[129] The applicant gave what I can safely describe as clear and straightforward evidence. He knew his facts well in that he relied principally on objective factual information which could not be gainsaid by the respondent’s witnesses. For example, it turned out to be a proven fact in his favour that at the time Professor Summers was appointed the ratio was already 75%:25% in favour of Black Deans over White Deans, which meant that the target of 70%:30% had already been reached and surpassed. Upon Professor Summer’s appointment the ratio was further increased to 80%:20% in favour of Blacks (of course a calculation which excluded the vacancy of Dean in the Faculty of Law, in which Professor Maré, a White female, was acting for the time being). It seems to follow, accordingly, that the application of the respondent’s employment equity policy, plan and guidelines in the present instance was not only a contravention of section 15(4) of the EEA but also a violation of the respondent’s own employment equity measures.

[130] Contrary to the applicant, Mr Phatlhane was unimpressive and unconvincing as a witness in that, for example, there were several occasions when, in answer to a question, he would precede his answer by the words “I think” which ultimately prompted me to remark about it to him. His usage of those words can only persuade me to conclude that he was not sure about his facts on the matters concerned.

[131] Ms Baloyi’s evidence did not improve the respondent’s case in that her evidence simply went along with that of Mr Phatlhane. Substantially, it was the evidence which merely proved that she and Mr Phatlhane made a misrepresentation to the Selection Committee meeting on 21 February 2002 with regard to the statistical information relating to the current status and profile of the academic staff at the University (the respondent), with particular reference to Deans and Deputy Deans. Whether the misrepresentation as such was intentional or innocent, was a matter of insignificance for the purposes of this judgment.

[132] This particular evidence, proffering proof of the misrepresentation as aforestated was, to my mind, the turning point in the applicant’s favour. In as much, the evidence of Mr Maponya added no favourable impact to the respondent’s case. He was only the CCHR chairperson and would possibly not have known about the distorted facts incorporated in the presentation tabled before his committee meeting on 19 March 2002. His committee relied on that information when it determined that the respondent’s employment equity considerations were to apply, which the committee then applied in favour of recommending Professor Summers for the post. In other words, both the Selection Committee and the CCHR were misled by the presentation of this misinformation before them. Likewise the Full Council would have been equally misled when it finally endorsed Professor Summers’ appointment.

[133] Accordingly, I am inclined to find that the applicant was unfairly discriminated against on the basis of his race when he was not appointed as Dean of the Faculty of Science for the second term, effective 1 April 2002. He is, therefore, entitled to redress. He has not sought reinstatement, but compensation and damages.

[134] The applicant did not leave the office of Dean immediately after his term expired on 31 March 2002. He remained in the office and carried on with the duties of Dean until 9 April 2002. The evidence also showed that he was paid full salary for the months of April and May 2002 at the scale of a Dean. Thereafter he carried on working for the respondent, at a lower salary of a Professor, until 30 September 2002. He conceded, however, that since his intention was to have retired at the age of 60 years, it followed that if he was appointed for the second term as Dean, his retirement would have come prior to the expiration of that term. As he was 58 years old in 2002, he would then only have served two years of the second three year term as Dean. On the basis of all these considerations, the necessary calculations were made, some of which were amended by agreement between the parties, and referred to elsewhere in this judgment, in relation to the amounts owing to the applicant by the respondent in respect of leave and service bonuses and the amount constituted of the difference between what the applicant would have earned as a Dean, on the one hand and as a Professor, on the other, for the entire period up to his date of retirement.

[135] The applicant’s decision to remain in the respondent’s employ until September 2002 was, in my view, justifiable in the circumstances. There was unchallenged evidence that both the respondent’s Principal, Dr Pityana, and the Human Resources Executive Director, Mr Moloto, contributed in the delay of the applicant deciding finally to quit the respondent. At different times they made promises and gestures to the applicant, some to the effect that the applicant could have a chance of reappointment as Dean or that, if not, another alternative post could be created within the Faculty which could see him earning a salary equivalent to that of a Dean.

[136] In those circumstances, the applicant was justified to have waited to see the promises materialising, which unfortunately was all in vain. The applicant’s allegations about these promises and gestures were of course denied during the applicant’s cross-examination by the respondent’s counsel. It was in fact put to the applicant that the officials referred to, namely Dr Pityana and Mr Moloto, would be called to testify and deny the allegations. It was further put to the applicant what the contrary evidence would be of the two officials concerned, which was denied by the applicant. Strangely and indeed surprisingly, neither Dr Pityana nor Mr Moloto was called to give evidence. In the circumstances the evidence of the applicant on the these allegations remained unchallenged and the Court, therefore, has no reason to reject it.

[137] During the same period (between April and September 2002) the applicant referred the dispute to the CCMA, which was his constitutional and legal right to do. It is clear that he made this referral reluctantly and that even after it was made he was still amenable to having the dispute resolved amicably. However, it did not seem that any co-operation was forthcoming from the respondent’s side. Any semblance of co-operation was merely a sham and lacking in good faith.

[138] I am satisfied that the respondent’s treatment of the applicant was not only racially discriminatory, but it was also humiliating to have been done to a very senior and experienced employee of the applicant’s status and calibre. It was accepted that he had served the respondent with dignity, loyalty, diligence and distinction for some 35 years. The treatment he was subjected to was absolutely unwarranted and undeserving.

[139] It was shameful of the respondent that it did not even have the courtesy to inform the applicant, as soon as it had decided on the matter, that his application was unsuccessful. Instead, on 9 April 2002 he was served with a copy of Professor Summers’ appointment dated 27 March 2002, which was followed by a somewhat demeaning note from Professor Salbany in which the applicant was apparently treated as a nonentity. This was very rude and insensitive treatment, to say the least.

[140] On the basis of Professor Summers’ appointment being dated 27 March 2002, it is also clear that when Mr Moloto met the applicant on 26 March 2002 at the restructuring committee meeting and requested the applicant to stay on as Dean until 15 April 2002 (when Dr Pityana would have arrived from abroad) Mr Moloto was already aware of Professor Summers’ appointment but he did not inform the applicant about it. Mr Moloto had not responded to the applicant’s letter of 27 March 2002 in which the applicant confirmed the contents of their discussion on 26 March 2002. The applicant had to write another letter again on 11 April 2002 to Mr Moloto in which, among other things, he expressed, justifiably so, his sadness about the way he was being treated. There was no reply to that letter forthcoming from Mr Moloto either. I am satisfied from the evidence that the mode of delivery of communication among the personnel on the campus, as testified to by the applicant, was so efficient and effective that a message was received almost immediately by the intended recipient, unless he or she was not available at the office or workstation at the time of delivery.

[141] Strangely, in his letter to the applicant dated 2 April 2002 (but signed on 15 April 2002) Mr Moloto mentioned nothing about the applicant’s letter of 11 April 2002 which by then Mr Moloto had clearly already received. Instead, he only referred to the applicant’s earlier letter dated 22 March 2002. In my view, this was yet another show of arrogance on the part of Mr Moloto which was completely uncalled for.

[142] In other words, it was only in Mr Moloto’s letter (signed on 15 April 2002) that the applicant was officially informed that his application as Dean was unsuccessful. Of course, ironically, he had been indirectly advised of his fate on 9 April 2002 when the office of the Acting Principal sent him a copy of Professor Summers’ appointment! He did not deserve this kind of treatment.

In my view, the circumstances of the case justify the applicant being awarded appropriate compensation and damages, in terms of section 50(2) of the EEA.

[143] The appellant claimed compensation in the sum of R5 million, which Mr Hiemstra conceded, correctly so, that it was excessive. Mr Hiemstra submitted, however, that substantial compensation should be awarded in the light of the fact that the unfair discrimination concerned involved the violation of a Constitutional provision. In that regard, he suggested compensation in the amount equivalent to the respondent’s 24 months salary plus 15.5% interest on the amount awarded. I am not inclined to granting an award of interest. In my view, the nature and circumstances of the case do not justify the granting of such relief.

[144] As indicated earlier in this judgment, during the course of the trial the parties agreed (presumably on a “without prejudice” basis on the part of the respondent) that certain amounts claimed by the applicant should be amended. The amount claimed as the difference between what the applicant would have received on his retirement as a Dean and what he would have received as a professor was amended from R886 342,00 to be R421 321,00. Also, the amount claimed in respect of unpaid leave and service bonuses was amended from R326 901,00 to be R240 308,00. The sum total of the two claims is therefore R661 629,00. On this basis, the quantum of these particular claims is regarded as proven.

[145] The determination of quantum in relation to general damages (compensation) is a difficult one in instances involving infringement of human dignity. (Ntsabo v Real Security CC [2003] 4 ILJ 2341 (LC) at 2383E-F). I do not propose to repeat what I have alluded to already concerning the outrageous and unscrupulous treatment that the applicant was subjected to at the hands of the respondent’s officials. I am satisfied that the circumstances of this case justify the award of compensation that reflects a punitive element, It seems to me that the award equivalent to the applicant’s 12 months’ salary on the Dean’s salary scale would be just and equitable in the circumstances. The costs should follow the result.

Order

[146] Having considered the matter, I make the following order:

1. It is declared that the non-appointment of the applicant as Dean of the Faculty of Science effective 1 April 2002 constituted unfair discrimination against the applicant based on his race.

2. The respondent is directed to pay the applicant:

(a) compensation in the amount equivalent to the applicant’s 12 months’ salary calculated on the salary scale of a Dean applicable on 1 April 2002, namely: R356 484,00;

(b) damages in the sum of R661 629,00;

3. The said amount of R1 018 113,00 (i.e. R356 484,00 + R661 629,00) is to be paid to the applicant within 60 (sixty) days of the date of this Order.

4. The respondent is to pay the costs of this application.

__________________________

For the applicant : Mr J Hiemstra

Instructed by : Hannelie Basson Attorneys, Pretoria

For the respondent : Mr G. van der Westhuizen

C/o MacRobert Inc Attorneys, Pretoria

Date of Judgment : 17 September 2007

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