Maema v Commission for Gender Equality & another [2026] ZALCJHB 382

Date of Judgment & Seat of Court: 30 September 2026, Labour Court, Johannesburg

Case No: JS867/2021

Name of Judge(s): Mabaso AJ

Summary of Factual Matrix:

The plaintiff, a Lesotho national with permanent residence in South Africa, had served as Chief Executive Officer of the Commission for Gender Equality for ten years when her contract was due to end in July 2020. The post was advertised stating that preference would be given to South African citizens. A recruitment agency shortlisted her, but the high-level selection panel unanimously rejected that shortlist, noting among other things that she was not a citizen; an invitation to interview sent to her by HR was withdrawn as having been issued in error, and the second respondent was appointed.

The plaintiff sued under the Employment Equity Act, alleging unfair discrimination on the grounds of ethnic, social, cultural, language or birth origin, or an analogous arbitrary ground, and that the withdrawal of her name was arbitrary and unlawful. She also claimed payment for about 15 days of accrued leave. The Commission defended both claims; the second respondent did not participate.

Summary of Findings:

[28] ‘The Plaintiff's complaint, based on the evidence presented in this Court, arose from a citizenship preference by the Commission; however, she opted to plead discrimination based on ethnic origin, social origin, culture, language and birth origin, in terms of section 6(1) of the EEA. The Commission correctly accepts that the advert differentiated between South African citizens and non-citizens. Therefore, this Court must ask whether the differentiation based on citizenship constituted discrimination on any of the listed grounds relied upon by the Plaintiff.’

[31] ‘To answer the question in paragraph 28 above, this Court notes that in paragraph 112 of the Plaintiff’s heads of argument, it is correctly conceded that “citizenship is not one of the specified grounds” and that the provisions of section 6(1) of the EEA do not specify or cover “citizenship”, which is alleged by the Plaintiff in this matter.’

[32] ‘Considering the definition of citizenship mentioned above, paragraphs 29 and 30 above, this Court finds that nothing before it establishes a nexus between the Commission's citizenship preference and the pleaded grounds of ethnic origin, social origin, culture, language, or birth origin. Therefore, the Plaintiff has failed to prove discrimination on a listed ground as required by section 6 (1) of the EEA.’

[33] ‘Even if it can be found that the above conclusion of this Court is wrong, no discrimination has been shown in this matter, as the Plaintiff and her witness, Dr Vetten, confirmed that there is no discrimination, meaning they confirmed that the Commission did not commit any discrimination in advertising a post indicating that preference will be given to South African citizens, and what the Plaintiff in her heads of argument says is now a dispute, as mentioned in paragraph 21 above, and her testimony. This Court is mindful that a litigant can concede a factual issue, as has happened here, but whether those facts amount to discrimination is ultimately a legal question for the Court, and in this matter this Court concludes that the Plaintiff and her Counsel have correctly conceded on this point.’

[34] ‘Now, this Court considers whether what has been presented before it supports on “an arbitrary ground”. The provisions of section 11(2) of the EEA kick in, providing that the Plaintiff has to prove, on a balance of probabilities, that the conduct complained of is not rational and amounts to unfair discrimination.’

[36] ‘Applying the principle in Ramaila supra, this Court finds no connection between the alleged conduct, which is citizenship preferential, and those mentioned in section 6(1) of the EEA, as the law requires that one refer back to the specified ground. Objectively, none has been shown. Even the argument that the Plaintiff's Counsel has put that both Dr Vetten and one of the Panel members indicated an alleged resentment, where the Panel member said “[the Plaintiff] will never come back”, does not show any specified ground in section 6(1) of the EEA, pleaded by the Plaintiff; therefore, even here on this ground, the case of the Plaintiff fails.’

[37] ‘Dr Vetten further confirmed that it is normal that panel members will engage on the side about their respective views. It must be recalled that no evidence was presented to suggest this was a general view of the Panel, but rather something one member of the Panel discussed with Dr Vetten on a different platform. Therefore, this cannot be attributed to the Commission’s stance.’

[38] ‘It is important to highlight that both Dr Vetten and Prof Mosoma were part of the 8-member Panel, which took a unanimous decision on how the process was to proceed. Now, with the other 6 members not raising a concern and only two raising their respective concerns, this Court concludes that this does not suggest arbitrary, capricious, irrational, unlawful, or unfair conduct on the part of the Commission.’

[40] ‘However, the facts in casu must be objectively assessed to determine whether the Commission acted in a manner that would call for a declaration that it was arbitrary, capricious, irrational, or mala fide, and therefore unlawful and/or unfair. The advertisement did not identify South African citizenship as a minimum or inherent requirement of the CEO post, but merely stated that preference would be given to South African citizens.’

[41] ‘It is correct that the Plaintiff was excluded from the interview process solely because she was not a South African citizen. It must be taken into account that, long before the advert could be released, she was made aware of the Commission's intention that others had to be tried, and she occupied this position for two terms, for a total of 10 years. In addition, Parliament had raised concerns about the manner in which things were done in the Commission; now this Court’s considered view is that the Commission’s decision to withdraw the Plaintiff’s name, objectively assessed, does not demonstrate unlawfulness as suggested by her, as she was aware of the challenges raised by Parliament considering the structure of the Commission. She had an opportunity to serve for 10 years even though she was not a South African citizen. Therefore, this Court finds no fault in the approach taken by the Commission.’

[43] ‘However, the Plaintiff presented uncontested evidence on how these leave days accumulated and why the policy in question did not apply to her case.’

[44] ‘The Commission was not in a position to call a witness to counter the Plaintiff’s evidence. It called a witness who was not involved at the time the Plaintiff was employed, and this witness did not assist the Court.’

[45] ‘Considering the evidence presented before this Court, it concludes that the Plaintiff proved on the balance of probabilities that she was owed. For how much? This Court concludes that it can order only the number of days stated in her statement of case, which is 15 days.’

[46] ‘As a result, the Court concludes that the Plaintiff proved that she was indeed owed for the 15 days, but not the amount of money she claimed. Therefore, she is entitled to less than she claimed.’

[48] ‘This Court has taken into account that the matter could not proceed on that day due to unforeseen circumstances. Consequently, it will be unjust to order either Defendant and/or Advocate Baloyi to cover these costs. Therefore, each party shall bear its own costs.’

[49] ‘The Plaintiff decided to bring two claims at the same time, and this Court has indicated above that it does not agree with the Plaintiff relating to the discrimination dispute, which is litigated in terms of section 11 of the Employment Equity Act, and partly that of the BCEA. As the claim under the BCEA is partly dismissed, fairness calls for no order of costs; since each party succeeds partly under the BCEA. Therefore, this Court orders that each party pay its own costs.’

Relief: The unfair discrimination claims under the Employment Equity Act were dismissed. The leave-pay claim succeeded in part, and the Commission was ordered to pay the plaintiff for 15 leave days within 20 days (the order, as printed, erroneously directs 'the Plaintiff' to pay). No order as to costs was made, including for the postponement.

Judgment on SAFLII