In the recent decision in Martin Gordon v Department of Health KwaZulu-Natal [September 17 2008], the Supreme Court of Appeal dealt with a question of the appointment of an employee based on race under the guise of affirmative action.

Gordon was employed by Greys Hospital. In April 1996, a position of a Deputy Director: Administration: Greys Hospital, was advertised. Gordon and a certain Mr Mkongwa, a black person, were among the applicants. Gordon started working for the hospital as an assistant administrator in February 1967. When the post was advertised, he was an assistant director - Midlands Hospital Complex. Mkongwa on the other hand was employed by Greys Hospital in June 1974 as an assistant administrator. When the position was advertised, he was an administration officer, and had an honours degree in administration.

The selection panel recommended Gordon as the most suitable candidate for the position. As an assistant director of Midlands Hospital Complex, he was responsible for the administration of three hospitals. The Provincial Public Service Commission (PPSC) did not accept the recommendation and directed that Mkongwa be appointed instead.

Gordon challenged the decision. The PPSC said it was a constitutional imperative to promote representivity in the public service. There was no Employment Equity Act at the time. However, the relevant act was the Interim Constitution 200 of 1993, Section 8, which provided that:

"1. Every person shall have the right to equality before the law and to equal protection of the law

"2. No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.

"3 (a) This section shall preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms."

The hospital had no measures at the time to address issues of equality at the workplace. The court held that "inherently arbitrary and, or irrational measures cannot be said to have been designed to achieve the objective of the constitutional imperative of equality".

"In essence, the remedial measures are directed at an envisaged future outcome. The future is hard to predict. However, they must be reasonably capable of attaining the desired outcome. Moreover, if it is clear that they are not reasonably likely to achieve the end of advancing or benefiting the interests of those who have been disadvantaged by unfair discrimination, they would not constitute measures contemplated by S9 (2)."

The court concluded that the appointment of Mkongwa was based solely on his race. It is therefore important that the employers should have a policy or plan on affirmative action. An affirmative action without any objectives to achieve can be regarded as haphazard and arbitrary.