Judgment reserved in equity case

Sep 20 2012 18:59
Johannesburg - Judgement was reserved on Thursday on an application by trade union Solidarity against the SA National Blood Service (SANBS) for reserving jobs for certain races.
Solidarity is seeking an urgent interdict on behalf of SANBS employees Theodore Reyneke and Sanet Schonfeldt.
It wants the court to prevent the SANBS from filling the vacant position concerned while the matter was before the court.
Judge David Gush instructed SANBS lawyer Omphemetse Mooki and his Solidarity counterpart Martin Brassey to make written submissions by noon on Friday.
The SANBS has embarked on a policy to create room for black applicants by offering senior white employees over the age of 55 early retirement and voluntary retrenchment.
Reyneke and Schonfeldt, who have worked for the SANBS for 27 and 23 years respectively, were taking their employer to court because they were not permitted to apply for these positions.
Mooki argued that the matter was not urgent as Reyneke and Schonfeldt had known since July 23 that the SANBS was offering early retirement and voluntary retrenchment packages to senior white employees over 55 to create space for black applicants.
Both Reyneke and Schonfeldt knew of SANBS's plans since July and did nothing until September, Mooki contended.
"They first moved when Solidarity (lit) a fire under them," said Mooki.
It was not part of the SANBS's equity plan for management to be 100% black, he said.
Earlier, Gush suggested to both parties that considering the importance of the matter, that the court hear arguments on October 17.
"A matter of this nature dealt with in haste will not serve anyone's interests," said Gush.
He said regarding the appointments, "(It) does not appear if anything is likely to happen by the middle of October.
"I am suggesting the matter is given more consideration."
Following a brief adjournment for the two parties to discuss, Mooki sought clarification regarding whether the service could continue interviews for the vacancies and make appointments.
Solidarity's legal representative Martin Brassey contended that the SANBS had already made an appointment for one of the vacancies, which he stated was in contempt of court.
Mooki later confirmed during arguments that the appointment had been made.
He said the white employees who accepted the early retirement and voluntary retrenchment packages would cease working for the SANBS after October 31.
Brassey argued in court papers that the appointments, if made, were unlawful as they breached the SANBS's own employment equity plan and the Employment Equity Act by inviting applications for promotion, with white employees absolutely disqualified from applying.
This was because the Act prohibits naked race preferencing, and required a nuanced approach to matters of recruitment and promotion regarding past disadvantage and merit.
Brassey cited past cases as precedent regarding the matter before the court.
Solidarity began a campaign against Woolworths earlier this month to get it to retract job advertisements it believed discriminated against whites.
It sent the retailer a letter demanding that advertisements exclusively open to "African blacks" or "Africans, coloureds and Indians", be modified so people of all races could be considered.
Deputy general secretary Dirk Hermann said Woolworths' advertisements constituted unfair race discrimination.
In August, the Rapport newspaper reported that SA Airways had lifted a ban on applications by whites for its cadet pilot programme.
Prior to this, the airline's website automatically rejected applications from white men.
Both SAA and Woolworths defended the advertisements, saying they were necessary to bring the companies in line with the country's demographics at certain levels.

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solidarity  |  saa  |  woolworths  |  employment equity



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