Durban - A Durban attorney’s claim that she was treated differently from other attorneys by a top KwaZulu-Natal law firm because of her “race and social origin” has been dismissed by the Constitutional Court.
The attorney, Yonela Mbana, said that Shepstone & Wylie had discriminated against her when they would only hire her after she had completed her LLB degree, but hired two other candidate attorneys who had not completed their studies.
Mbana also alleged in her leave to appeal application that Labour Court Judge David Gush, who had presided over her case, had not disclosed his previous association with the firm.
She argued that the judge’s previous association gave rise to a reasonable apprehension of bias or, alternatively, that he displayed actual bias towards the firm during the pre-trial conference.
Judge Gush said the previous association was disclosed to both parties via his secretary and that he personally informed Mbana during a pre-trial conference.
The Constitutional Court ruled that Mbana’s case did not have prospects of success if they granted her leave to appeal against the Labour Court judgment.
The court also advised that to avoid similar disputes, judges should disclose in writing their previous associations with litigants.
A complaint to the judicial conduct committee against Judge Gush was also dismissed.
In 2005, Mbana was awarded a bursary by the firm to study for an LLB degree and, on completion of the degree, she was guaranteed employment with the firm. In 2008, she informed Shepstone & Wylie that she could not complete her degree in that year and queried whether she could start working in January 2009 while she was still completing her studies. The firm told her that its policy did not allow this.
Mbana, who starting working at the law firm in 2010, became aggrieved in 2011 after two other candidate attorneys who had not completed their LLB degrees were hired.
She referred a dispute to the Commission for Conciliation, Mediation and Arbitration, but the issue could not be resolved.
Shepstone & Wylie said it had not been aware that the two attorneys had not finished their degrees.
It said its litigation department would have suffered if they were dismissed because it would have been left with only two out of five candidate attorneys it had recruited for that year.
To remedy the situation, the two attorneys signed agreements that they would complete their studies by June 2011 or leave the firm.
The Concourt also found that Mbana’s argument that she was discriminated against because of race did not hold water as one of the candidate attorneys she complained about was a black male.
The court also found that the firm’s recruitment policy was not shown to be irrational and it had adequately demonstrated why it had deviated from its recruitment policy.
The court said it was not in the interests of justice to allow Mbana to argue there was “actual bias” because she only brought the issue up in her application for leave after the Labour Court ruled against her.
The court said that there was a dispute of fact regarding whether Judge Gush had disclosed his previous association but that this did not affect their decision.
‘The claim that a judge hearing a case had an association with a litigant that ended a whopping six years before his appointment does not give rise to any reasonable apprehension that the judge may be biased in favour of that litigant.”
The Mercury