Labour Court finds municipality used an impermissible headhunting process and deprived senior employee of a lawful opportunity to compete
The case began with a failed promotion application
The Labour Court in Cape Town has ordered the City of Cape Town to pay former senior employee Mahlatse Maebana R319,604.75 after finding that the municipality unfairly handled the recruitment process for a senior management position.
The judgment, handed down by Judge Suzanna Josephine Harvey on 27 August 2026, reviewed and set aside an earlier arbitration award that had dismissed Maebana’s unfair labour practice complaint.
The court found that the City had relied on an impermissible headhunting process after an advertised recruitment process failed to produce a suitable candidate.
The ruling is significant because the court made it clear that an employee does not have an automatic right to be promoted, but does have a right to a fair opportunity to compete for a position.
Maebana applied for the job in 2022
At the centre of the dispute was the position of Manager: Collections Branch within the City’s Urban Waste Management Directorate.
Maebana was at the time employed as Head of the Operational Programmes Management Unit and applied for the managerial position when it was advertised in 2022.
Although he met the minimum requirements, he was not shortlisted and the position was not filled.
The City subsequently turned to a headhunting process and identified three potential candidates, including George Jonkers, who was already employed by the municipality.
Two of those candidates were considered competent and Jonkers was recommended for appointment. However, the Executive Director did not support the recommendation, citing employment equity considerations and concerns arising from psychometric assessments.
The position was then advertised again in 2023. This time Maebana was shortlisted and interviewed. He obtained the highest interview score among the candidates interviewed. However, the panel concluded that none of the candidates were competent for appointment.
The City went back to the headhunted candidates
This became the critical point in the dispute. Rather than advertising the position again, the City returned to candidates who had been identified through the earlier headhunting process.
The previous recommendation of Jonkers was reconsidered and eventually referred to the Municipal Manager, who approved his appointment.
Maebana challenged the process, arguing that the City had effectively given candidates from the earlier headhunting exercise another opportunity while he was denied the same chance through a lawful recruitment process.
An arbitrator initially rejected his unfair labour practice claim.
The commissioner found that the City’s recruitment policy permitted headhunting where a recruitment process had failed to produce a suitable candidate and concluded that Maebana had not established unfair conduct.
Labour Court says the rules did not allow it
Judge Harvey disagreed with the commissioner’s interpretation of the applicable regulations.
The court considered the City’s 2020 Recruitment and Selection Policy alongside the 2021 Municipal Staff Regulations issued under the Local Government: Municipal Systems Act.
While the City’s internal policy allowed alternative recruitment methods, including headhunting, after an unsuccessful recruitment process, the later regulations placed stricter limits on when such methods could be used.
The regulations allowed alternative recruitment methods such as executive search and headhunting only where the position had been classified as a critical and scarce-skills post.
The Collections Branch manager position was not classified in that way.
The court therefore found that the City’s internal policy could not override the later regulations.
Once the advertised recruitment process failed to produce a suitable candidate, the City should have re-advertised the position rather than returning to candidates identified through the earlier headhunting exercise.
He did not have to prove he would have won the job
One of the important aspects of the judgment was the distinction between having a right to a promotion and having a right to a fair recruitment process.
The court did not find that Maebana would definitely have been appointed had the position been re-advertised.
He could have been unsuccessful again.
However, Judge Harvey found that this was not the issue.
The unfairness arose because Maebana was denied another lawful opportunity to compete for the position, while candidates from an earlier impermissible process were effectively brought back into consideration.
The court said the commissioner had made a material error of law when interpreting the recruitment regulations, and that error directly affected the finding that the City’s conduct had not been unfair.
Court also criticises subpoena decision
The judgment identified another procedural problem during the arbitration.
Maebana had sought to subpoena the Municipal Manager, who had ultimately approved Jonkers’ appointment despite the earlier concerns about the recommendation.
The commissioner refused to issue the subpoena but, according to the Labour Court, failed to provide reasons for that decision.
Judge Harvey found that this refusal was procedurally unfair because Maebana was entitled either to call the witness or to receive reasons explaining why the subpoena would not be issued.
However, the court did not uphold all of Maebana’s complaints.
It rejected his allegations of a conflict of interest involving senior City officials and found no evidence that interview scores had been manipulated.
The court also found that the fact that a senior manager had identified Jonkers as a potentially suitable candidate did not, by itself, establish a conflict of interest.
R319,604 awarded instead of 12 months’ pay
By the time the matter reached the Labour Court, Maebana had left the City and was no longer seeking the managerial position or an order overturning Jonkers’ appointment.
He sought compensation equivalent to 12 months’ remuneration. The court declined to award the maximum amount. Judge Harvey noted that the court had not found that Maebana would have secured the position, nor had it found that the scoring process was manipulated. Instead, the compensation was intended to recognise the loss of his fair opportunity to compete.
His annual remuneration at the time of the hearing was recorded as R1,278,419. The court therefore awarded him three months’ remuneration – R319,604.75. The City was ordered to pay the amount by 15 September 2026.
What the judgment means
The judgment reinforces an important principle in workplace promotion disputes: employers generally have discretion to decide who is best suited for a position, but that discretion must be exercised within a lawful and fair recruitment process.
In Maebana’s case, the court did not order the City to give him the job.
Instead, it found that he had been deprived of something more fundamental – a fair chance to compete for it.
The ruling also establishes that municipal recruitment policies cannot be used to justify a process that conflicts with binding regulations.
The original arbitration award was therefore set aside, the City was declared to have committed an unfair labour practice relating to promotion, and Maebana was awarded R319,604.75 in compensation.
