The respondent approached the Industrial Court on the basis that the failure to appoint her amounted to an unfair labour practice. The Court ruled in her favour finding that the pre-condition for the implementation of the Department’s affirmative action policy, namely registration, had not occurred by the time the Commissioner made his decision. The appellant sought to overturn that finding on appeal.

HELD: The Commissioner was competent to decide whom to appoint to the post. He was further competent to do so in terms of s8(3) of the Interim Constitution, 1993, the affirmative action clause "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". This appointment is also in line with s212(2)(b) which states that the public administration of South Africa must be broadly representative of the South African community. In terms of s210(1)(a)(3) of the Interim Constitution the Public Services Commission is competent to give directions for appointments and promotions in the public service and in terms of s210(1)(a)(3) these directions should generally be implemented within 6 months. The Commissioner thus acted within his powers when he made the decision. Whilst he did not adhere to a fixed policy or principle in making his decision he gave careful consideration to the circumstances of the respondent, the demands for representativity in that particular post in the Eastern Cape as well as other relevant factors.The application was dismissed and the appeal succeeded with costs.

COMMENT: The implementation of affirmative action measures are entrenched in the Constitution of the Republic of South Africa. Registration of an Affirmative Action Policy is not a pre-requisite to implement affirmative action measures in the workplace.