Labour Court Dismisses Unfair Discrimination Claim Against Transnet

27 July 2026

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2–3 minutes

Ms Rachel Nkhwatshirema, the applicant in the matter, alleged unfair discrimination following her unsuccessful application for an entry-level position with state-owned transport enterprise, Transnet. The matter originated from a recruitment drive in September 2013, when Transnet Freight Rail advertised a vacancy for a horticultural assistant based in Vryheid, KwaZulu-Natal. The minimum qualifications specified for the position included a Code B driver’s license, and prior horticultural experience wad noted as an added advantage. Given a low volume of applications, the entity opted to shortlist and interview all candidates, including Ms Nkhwatshirema.

Following the selection process, the three-member interviewing panel assessed each candidate across a range of key competencies. While Ms Nkhwatshirema was assessed as competent, the panel ultimately selected another candidate, Ms Sebatjane, who achieved higher ratings in administrative skills, problem-solving, and effective oral communication.

Dissatisfied with the outcome, Ms Nkhwatshirema initiated multiple inquiries with Transnet representatives and subsequently lodged complaints with both the employer and the Office of the Public Protector. After failing to reach a resolution, she instituted legal proceedings in the Labour Court under Case No. JS629/14, wherein she alleged that Transnet had unfairly discriminated against her.

During the trial, Ms Nkhwatshirema struggled to clearly define the specific legal ground upon which her discrimination claim was predicated. While confirming that her claim was not grounded on race or gender, her pleadings indicated a reliance on her qualifications. She alleged that a Transnet representative informed her in February 2014 that she was not appointed because she was overqualified for the role, given that she held a Bachelor’s degree in agriculture. Additionally, she asserted under cross-examination that her age played a factor, an argument the court noted had not been properly pleaded.

Evaluating the evidence, the court noted significant concerns regarding Ms Nkhwatshirema’s credibility. The court observed that her testimony diverged from her pleadings on key points and described her answers as evasive. Conversely, the court found the testimony of Transnet’s witnesses, Ms Mary Cecilia Lovinga and Ms Share Bhoonpershad, to be consistent, candid, and reliable under cross-examination.

In analysing the legal merits, the court referenced sections 6(1) and 11(2) of the Employment Equity Act.¹ The court highlighted that academic or professional qualifications are not an explicitly listed prohibited ground of discrimination in section 6(1). As such, the onus rested on Ms Nkhwatshirema to prove that Transnet’s conduct was irrational, amounted to arbitrary discrimination, and directly impaired her fundamental human dignity or perpetuated systemic disadvantage.

The court ultimately ruled that Ms Nkhwatshirema failed to discharge this burden. It observed that employers maintain the legal discretion to evaluate job applicants based on suitability, competence, and organisational fit. The court held that even if an employer considers candidate overqualification during hiring, such a consideration does not inherently constitute irrational or unfair discrimination. The evidence established that Transnet simply selected the candidate who performed best during the panel interview.

Consequently, the court formally dismissed the claim. Fortunately, the court did not issue a costs order against Ms Nkhwatshirema after taking into account that she was a self-represented litigant who genuinely, albeit mistakenly, believed she was asserting her constitutional rights.