n South African Law Journal - Accountability, contextualisation and the standard of judicial review of affirmative action : : notes

Volume 130, Issue 1
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



The decision in (2010) 31 742 (LC) ('') has, once again, raised the issue of the proper standard of review of affirmative action measures. The Labour Court ruled that under s 6 of the Employment Equity Act 55 of 1998 ('EEA') the respondent bears the onus of proving the fairness of its decision not to appoint the applicant, a white female. This approach contradicts the Constitutional Court's leading judgment on the test for affirmative action under s 9(2) of the Constitution. In 2004 (6) SA 121 (CC) (''), the court held that affirmative action measures falling within the ambit of s 9(2) are not subject to the presumption of unfairness in terms of s 9(5) of the Constitution.

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