Eskom’s affirmative action measures lawful, LAC rules
- Jonathan Goldberg
- Aug 4
- 3 min read
The Labour Appeal Court of South Africa has overturned a Labour Court ruling which found that Eskom Holdings SOC Ltd unfairly discriminated against a white male employee by not appointing him to a senior management position.
The matter, Eskom Holdings Soc Ltd (Peaking Power Station) v Solidarity obo Erasmus (CA13/2024) [2025] ZALAC 55; [2026] 1 BLLR 20 (LAC); (2026) 47 ILJ 150 (LAC) (5 November 2025), concerned Eskom’s implementation of its employment equity measures and an internal practice referred to as “pipelining”.
The employee had worked for Eskom since 1988 and held the position of Senior Advisor Outage Coordinator. In 2017, he applied for the internally advertised position of Senior Manager: Outage Execution at Eskom’s Peaking Power Station division.
A staff requisition form completed during the recruitment process initially indicated that a white male should be appointed. However, Eskom’s Employment Equity manager added a handwritten note stating that preference should instead be given to an African male or females of all races.
The employee, who is white, mistakenly indicated on his application form that he was African. He was shortlisted, interviewed and ultimately recommended for appointment by the interview panel. Despite this, Eskom declined to appoint him.
The utility explained that white males were significantly over-represented in the Group Technology Division at the senior management level and that appointing the employee would undermine Eskom’s employment equity objectives. Eskom instead sought to create a “pipeline” to promote employees from under-represented designated groups into senior management positions.
The employee lodged a grievance and later referred an unfair discrimination dispute to the Labour Court. The Labour Court found that Eskom’s shortlisting practices created an “absolute barrier” preventing white males from competing for senior posts and ruled that the practice amounted to unfair discrimination.
Eskom appealed the ruling.
The Labour Appeal Court found that Eskom’s Employment Equity plan itself had never been challenged and that white males were indeed overrepresented in the relevant division.
The Court held that Eskom’s pipeline approach was a rational affirmative action measure aimed at addressing racial and gender imbalances in senior management. The judgment found that the practice sought to advance groups previously disadvantaged by unfair discrimination and therefore promoted substantive equality.
Importantly, the Court rejected the finding that Eskom had imposed an absolute barrier against white male candidates. Evidence showed that the employee had in fact been shortlisted and interviewed despite management knowing he was white.
The Court also accepted evidence that exceptions to employment equity preferences could be motivated for and that there was no blanket prohibition on appointing white males.
The Labour Appeal Court concluded that the employee was not appointed because of Eskom’s lawful employment equity targets and pipeline strategy, rather than unfair discrimination. The appeal was upheld and the Labour Court’s order was replaced with one dismissing the application. No costs order was made.
This article is for informational purposes only and does not constitute legal advice. For specific legal guidance on protected disclosures, employment practices, or compliance obligations, consult a qualified labour law practitioner.
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