Legal updates and opinions
News / News
Allegations of Ethnic Discrimination Require Evidence: the Sagan Principle
and Isabella Keeves – Candidate Attorney
In 1979 science communicator and physicist Carl Sagan wrote in his book Broca’s Brain that “Extraordinary claims require extraordinary evidence”, which is also known as the Sagan standard, and is an aphorism popularly used in a number of fields. Although not expressly mentioned in the judgement, the principle seems to have been applied by the CCMA’s ruling in Future of South African Workers Union obo Zulu and Others v ArcelorMittal South Africa [(2025) 34 CCMA 6.12.1] which offers timely guidance on the evidentiary standard required for proving unfair discrimination under the Employment Equity Act (EEA).
Thirty applicants, predominantly of Zulu ethnicity and employed by labour broker Real Tree, alleged that ArcelorMittal had discriminated against them based on ethnicity, language, conscience, and belief, after they were not appointed to permanent positions despite acting in those roles for over a year. Their claim centred around a supposed promise of permanent employment; refusal to work during a strike due to “conscience”; and alleged tribalistic remarks made by some managers.
The employer, however, submitted uncontested evidence showing that over 200 candidates applied and all were interviewed; selection was based on interview performance, not tribal or political affiliations. Crucially, documentary evidence showed that Zulus (31 in total) were among those hired.
The Commissioner rejected the discrimination claim, finding no credible or documentary proof of a guarantee of appointment. Additionally, there was no evidence that applicants had not been denied a fair opportunity to compete; ethnicity played no role in the outcomes, particularly as some Zulu applicants who had also refused to work during the strike were appointed, and inappropriate remarks allegedly made by individuals were not linked to actual hiring decisions and did not reflect organisational policy.
On the issue of “conscience,” the applicants’ own testimony revealed their refusal to work was due to fear of violence, not belief or religious principle.
As always, the workplace is a balancing ground of competing claims and interests. Fairness is assessed to all parties. Claims of discrimination must be supported by direct evidence that links the alleged ground (ethnicity, conscience, etc.) to the employer’s action. Differentiation in hiring, even where prior acting experience exists, is lawful if conducted in line with transparent and objective processes. Individual misconduct or inappropriate comments by employees do not automatically impute liability to the employer unless condoned or systemic.
Employees should be aware that allegations are easy to make; proving them with corroborating evidence in a legal forum is another matter entirely.
Latest News
Letter issued by the Johannesburg Stock Exchange (“JSE”) on 24 April 2020 on Financial Reporting during COVID‑19 (“JSE Letter”)
by Kyra South, AssociateReviewed by Natalie Scott, Director Background Since the outbreak of COVID‑19, and the subsequent national lockdown declared [...]
Deadline for submission of COVID-19 Temporary Employer / Employee Relief Scheme (“TERS”) applications
By Jacques van Wyk, Director and Thabisa Yantolo, Candidate Attorney On 30 April 2020 the Department of Employment and Labour [...]
An extension of the validity of prescriptions in terms of an amendment to the Medicines and Related Substances Act No. 101 of 1965
by Neil Kirby, Director and Head of the Healthcare & Life Sciences practice and Zamathiyane Mthiyane, Senior Associate On 30 [...]
What is the role of the SANDF during the lockdown?
Nelsie Siboza, Candidate AttorneyReviewed by Naledi Motsiri The role of the South African Defence Force (“SANDF”) during the lockdown has [...]
Update on emergency procurement measures
by Sarah Moerane, Director On 19 March 2020 the National Treasury issued Instruction No 8 of 2019/2020: Emergency Procurement in [...]
Return to the workplace plans
By Jacques van Wyk, Director and Thabisa Yantolo, Candidate Attorney On 29 April 2020 the Minister of Cooperative Governance and [...]
