Eskom Holdings Soc Ltd (Peaking Power Station) v Solidarity obo Erasmus (CA13/2024) [2025] ZALAC 55 (5 November 2025)

Introduction

This article examines an appeal brought against a judgment of the Labour Court, which found that the appellant, Eskom Holdings SOC Ltd (Peaking Power Station), unfairly discriminated against the respondent employee, Mr Erasmus. 

The appeal was instituted with the leave of the Labour Court. Central to the dispute is the question of whether Eskom’s implementation of its affirmative action measures, particularly its employment equity (EE) practices, created an unlawful barrier to the appointment of individuals from non-designated groups, and whether such practices accorded with the Employment Equity Act (EEA).

Background

Mr Erasmus commenced employment with Eskom in August 1988 and, at the relevant time, held the position of Senior Advisor: Outage Coordinator. He applied for the advertised position of Senior Manager: Outage Execution at Peaking Power Station, a post falling under Eskom’s Group Technology Division (GTD). As required by Eskom’s recruitment policy, a Staff Requisition Form (GA 13) was completed as part of the recruitment process. The GA 13 must be approved by middle and senior managers within the relevant division, as well as the Employment Equity Assigned Manager.

On 3 April 2017, the GA 13 for the post was completed by Mr Pasquallie, a Middle Manager: Site Outage, and authorised by the Senior Manager, Mr Van Staden. The form indicated that the preferred candidate for the post would be a white male. It also reflected that internal pipelining had been considered and that sufficient budget existed to fill the position. Dr Khumalo, the Employment Equity Assigned Manager, subsequently endorsed the form with a handwritten note stating that preference should be given to an African male or a woman of any race.

In July 2017, the post was advertised internally, attracting numerous applications. Mr Erasmus indicated on his application form that he identified as African. Having met the minimum qualifying criteria, he was shortlisted along with other candidates. The interview panel comprised of Mr Pasquallie, Mr Van Staden, and Ms Leuw from Human Resources who recommended Mr Erasmus for appointment. However, he was ultimately not appointed.

After receiving the outcome, Mr Erasmus expressed dissatisfaction and lodged a formal grievance. The Grievance Presiding Officer found that the initial GA 13 instruction that only white males should be interviewed was inconsistent with Eskom policy. The officer further noted that although Mr Erasmus’s appointment would not have negatively affected EE statistics, white males were overrepresented by 16% in the GTD and appointing a candidate from a designated group would have contributed to improved equity targets. It was also confirmed that in the event a critical post was not filled during the first recruitment round, a manager could motivate for a second round of interviews and, where justified, the appointment of a white male could be permitted.

Proceedings in the Labour Court

At trial, several witnesses provided insight into Eskom’s EE practices and the decision not to appoint Mr Erasmus.

Ms Dibela, from Human Resources, testified that Mr Erasmus would not have been shortlisted had he indicated that he was white. She explained that although the GA 13 reflected no adverse EE impact, Dr Khumalo’s annotation made it clear that preference should be afforded to African males or women. This, she stated, aligned with Eskom’s senior management “pipelining” strategy, an initiative aimed at developing a race and gender profile fit for future organisational leadership needs.

Mr Mdladla, the HR Operations Manager, affirmed that preliminary shortlisting should have prioritised African males and women of all races. If no suitable candidate emerged, managers could either expand the shortlisted pool or initiate a second recruitment round with relaxed EE requirements. He confirmed the GTD’s substantial shortfall in its African male representation at senior management level.

Mr Erasmus testified that he believed he was unfairly excluded solely because of his race. He accepted the existence of white male overrepresentation but rejected the validity of the pipelining concept, stating that he had never been made aware of Eskom’s EE plan.

Mr Van Staden confirmed both his support for appointing Mr Erasmus and that the GA 13 explicitly reflected the intention to appoint a white male. He stated that he saw no fixed policy barring the appointment of white males and noted that he, himself was an example of such a promotion. He disputed the notion that white males should be excluded at shortlisting and stated that he had motivated for Mr Erasmus’s appointment to the Acting General Manager, who ultimately refused to support it on the basis of poor EE performance within the GTD.

The Labour Court held that Eskom’s practice effectively created an “absolute barrier” for white males at the shortlisting stage. It found that neither the recruitment policy nor the EE plan expressly endorsed such a barrier and concluded that Eskom’s approach constituted unfair discrimination not justified as an affirmative action measure under the EEA.

Analysis

The validity and applicability of Eskom’s EE plan was not challenged during the proceedings. It was common cause that white males were overrepresented in the GTD and that affirmative action measures were necessary to correct demographic imbalances.

The Constitutional Court in SAPS v Solidarity obo Barnard provided the governing test for determining whether a restitutionary measure falls within the ambit of section 9(2) of the Constitution. The measure must:

1. Target a class of persons previously disadvantaged by unfair discrimination;
2. Be designed to advance or protect that class; and
3. Promote the achievement of equality.

Once these criteria are satisfied, the measure is neither unfair nor presumed to be so. Importantly, section 15(4) of the EEA prohibits the adoption of affirmative action policies that create an absolute barrier to employment for non-designated groups.

The evidence demonstrates that Mr Erasmus was shortlisted and interviewed with full knowledge by Eskom officials that he was a white male. Assertions that he was only shortlisted due to his self-identification as African appear inconsistent with the conduct of those directly involved in the process.

It was accepted, even by Mr Erasmus, that in the absence of Dr Khumalo’s annotation, white males could have been included in the shortlist. He also acknowledged that Eskom had a practice permitting managers to motivate for the inclusion of candidates from overrepresented groups.

Furthermore, several witnesses confirmed there was no absolute prohibition on appointing white males. The pipelining initiative, although not expressly included in the EE plan, formed part of the GA 13 requirements and was a known organisational practice aimed at ensuring demographic transformation in senior management.

On the evidence, the decision not to appoint Mr Erasmus was driven by Eskom’s EE targets and the pipelining strategy, both of which sought to address the substantial underrepresentation of African males at senior management level. These measures were rational, targeted, and intended to advance equality in accordance with section 9(2) of the Constitution.

Conclusion

The evidence supports the view that Eskom’s failure to appoint Mr Erasmus was not the product of an unlawful or inflexible barrier but rather a consequence of its constitutionally recognised affirmative action measures. These measures were directed at remedying demographic imbalances in senior management and did not amount to an absolute prohibition against employing non-designated groups.

Written by Leon Theron