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[2020] ZALAC 38
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Naidoo and Others v Parliament of the Republic of South Africa (CA4/2019) [2020] ZALAC 38; (2020) 41 (ILJ) 1931 (LAC); [2020] 10 BLLR 1009 (LAC) (7 May 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN]
Reportable
Case
no: CA4/2019
In
the matter between:
K
NAIDOO & OTHERS
Appellants
and
PARLIAMENT
OF THE REPUBLIC OF SOUTH AFRICA
Respondent
Heard:
25 February 2020
Delivered:
07 May 2020
Coram:
Davis and Sutherland JJA and Murphy AJA
JUDGMENT
SUTHERLAND
JA
Introduction
[1]
The Parliament of the Republic of South Africa requires security
services. To that
end, the Secretary of Parliament maintains a
Parliamentary Protection Service. Employees, styled Protection
Officers, are deployed
on a range of duties from access control to
surveillance of the establishment assets to acting as orderlies
during sessions of
Parliament. The appellants, unsuccessful
applicants
a quo
, are Protection Officers, many of
long-standing.
[2]
Apparently, Parliament is not a sedate place. In recent times the
proceedings have
been characterised by an earnest liveliness and the
demands on the Protection Officers to exhort members of Parliament to
observe
an appropriate degree of decorum have increased. In response
to these developments, the Secretary recruited additional security
staff. They have been styled Chamber Support Officers and are to
perform an orderly function during sessions of Parliament. The
Chamber Support Officers have been engaged at rates of pay higher
than the longer-serving Protection officers. This discrepancy
is the
subject matter of the grievance which matured into the dispute which
is the origin of the present litigation.
[3]
The appellants brought an application before the Labour Court
alleging unfair discrimination
and invoking the provisions of section
6 of the Employment Equity Act 55 of 1998 (EEA). In a pre-trial
conference, agreement was
reached to limit the issues to be put
before the court to a question of law. In effect, the sole
controversy put before the court
amounts to an exception to the case
pleaded by the appellants.
[4]
The scope of the question to be answered by the court
a quo
,
and in this appeal, appears from the terms of the agreement and the
pertinent paragraphs in the statement of case and the statement
of
defence in response thereto. The relevant passages are cited.
[5]
The agreement recorded in the pre-trial conference minute is thus:
‘
16.
At the pre-trial held on 3 April 2017, a discussion was held about
the potential shortening of proceedings by way of arguing
the point
raised in para 44.3 (and further) of the respondent’s statement
of response as a separate legal point up front.
From the respondent’s
perspective, the essential issue is whether the applicants’
description of the alleged wage disparity
is capricious, baseless,
unfair and unreasonable and unjustifiable, establishes an arbitrary
ground of discrimination for the purposes
of section 6(4) read
together with section 6(1) of the EEA.
17.
The applicants agree that the matter be scheduled for 1 day and that
both parties will submit heads of argument on the issue
whether the
applicants’ description of the alleged wage disparity as
capricious, baseless, unfair and unreasonable and unjustifiable
establishes an arbitrary ground for discrimination for the purposes
of section 6(4) read together with section 6(1) of the EEA.’
[6]
The Statement of case averred the following:
‘
26.
The wage disparities between PO’s and SPO’s versus SCO’s
and SCSO’s constitutes wage discrimination
on an arbitrary
ground. The decision to pay higher salaries to the SCO’s and
SCSO’s are capricious and based on an
act of nepotism by the
manager, Mr Van der Spuy, who decided to head hunt his erstwhile
colleagues from the SAPS. The applicants’
fundamental right to
human dignity is severely tarnished by these baseless, unfair and
unreasonable wage disparities and they are
also discriminated against
based on their longer years of service. There is simply not
justification whatsoever for the fact that
the Chamber Support
Officers are being remunerated at a higher level than that of the
applicants.
27.
The Respondent’s actions are further arbitrary in that the only
reason why the initial intake of Chamber Support
Officers where
remunerated higher than that of the applicants is because they were
employed by the SAPS whereas the applicants
were not. Many of the
applicants however used to be in the employment of either the SAPS or
the SANDF. The mere fact that the Chamber
Support Officers were
employed by the SAPS at the time that Phase 1 was implemented
constitutes an arbitrary ground that was capricious,
unjustifiable
and unreasonable.’
[7]
The statement of defence averred thus in response:
‘
44.
Ad Paragraph 26
44.1
The contents are denied.
44.2
….
44.3
Even if the applicants establish some form of (unjustifiable) wage
disparity, this is not based on an arbitrary ground of
discrimination. Indeed, the applicants advance nothing that qualifies
(in law) as an arbitrary ground of discrimination. The applicants’
description of the conduct in question as being capricious, baseless,
unfair and unreasonable and unjustifiable, does not serve
to
establish an arbitrary ground of discrimination. The same applies to
the applicants; reliance on length of service and alleged
nepotism,
both of which is misconceived.
44.4.
In relation to the allegation of nepotism, the fact that Mr Van der
Spuy worked for the SAPS 14 years ago and that the CSO’s,
CCS’s
were drawn from the ranks of the SAPS, cannot conceivably constitute
nepotism. The decision to recruit from the ranks
of the SAPS was not
that of Mr Van der Spuy; of the 37 appointees, Mr Van der Spuy knew
only one of them distantly; all applicants
went through a rigorous
and objective recruitment and selection process, during the course of
which a number of applicants were
eliminated; and appointments were
not made by Mr Van der Spuy, but rather by a panel (on which he sat).
45.
Ad Paragraph 27.
45.1
The contents are denied.
45.2
The applicants again misconceive the legal position: employment by
the SAPS (or non-employment by it) does not constitute an
arbitrary
ground of discrimination. Again, the applicants’ use of the
words “capricious, unjustifiable and unreasonable”
does
not serve to establish an arbitrary ground of discrimination.
45.3
This notwithstanding, the higher wage rates paid to the SCO’s
in comparison to the PO’s is not “only”
attributable to the fact that the former were employed by the SAPS at
the time of their recruitment, as is alleged. And the fact
that
“many” of the applicants were allegedly previously
employed by the SAPS / SANDF (presumably a long time ago, having
regard to their pleaded length of service with the respondent of 5 to
25 years) does not advance their case of discrimination.’
[8]
The point of departure, thus, is the proper interpretation of
sections 6(1), 6(4)
and 11 of the EEA and an application of that
proper meaning to the parties’ respective averments to
determine whether a cognisable
cause of action has been pleaded. The
text of the sections reads:
‘
6.
Prohibition of unfair discrimination
(1) No
person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice,
on one or more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin,
colour, sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language, birth
or on any
other arbitrary ground.
[Sub-s.
(1)
substituted
by s. 3 (
a
) of Act
No. 47 of 2013.]
(2)
…. (3)
(4) A
difference in terms and conditions of employment between employees of
the same employer performing the same or
substantially the same work
or work of equal value that is directly or indirectly based on any
one or more of the grounds listed
in subsection
(1), is unfair discrimination.
(Underlining
supplied)
‘
11. Burden
of proof
(1) If
unfair discrimination is alleged on a ground listed in section
6 (1), the employer against whom the
allegation is made must
prove, on a balance of probabilities, that such discrimination—
(
a
)
did not take place as alleged; or
(
b
)
is rational and not unfair, or is otherwise justifiable.
(2) If
unfair discrimination is alleged on an arbitrary ground, the
complainant must prove, on a balance of probabilities,
that—
(
a
)
the conduct complained of is not rational;
(
b
)
the conduct complained of amounts to discrimination; and
(
c
)
the discrimination is unfair.
[S.
11
substituted
by s. 6 of Act No. 47 of 2013.]”
[9]
The question posed to the Court
a quo
by the pre-trial
conference agreement was therefore whether the averments make out a
case within the provisions of section 6(1).
Plainly their case was
not encompassed by the listed grounds and the critical averment was
therefore that their averments were
covered by the suffix to the list
“…any other arbitrary ground.”
[10]
In the Court
a quo
, the thrust of the debate was whether a
“narrow” or a “broad” interpretation of the
compass of the phrase
“…any other arbitrary ground”
should prevail. In essence, this distinction (shorn of its nuances
which are addressed
hereafter) posited, on the one hand, that the
compass is limited to a ground which is analogous to the listed
grounds, and on the
other hand, posited conduct requiring simply to
be alleged to be arbitrary, in the sense of being “capricious.”
[11]
In the Court
a quo
, it was held that the section was to be
interpreted as having the narrow compass. The Labour Court thereupon
upheld the preliminary
point that no cause of action cognisable by
section 6(1) had been pleaded. The appellants’ case was
consequently dismissed;
the propriety of the order dismissing the
case is addressed, discretely, hereafter.
[12]
The conclusion of the Labour Court that the narrow compass
interpretation was to be preferred was reached
after a consideration
of conflicting decisions in the Labour Court on the critical issue,
divergent academic writings and in deference
to a decision in the
Constitutional Court. It is to that debate that we now turn.
Analysis
of the Law
[13]
The text of section 9(3) of the Constitution of the Republic of South
Africa, 1996 reveals itself to
be the
font et origo
of the
list in section 6(1) of the EEA. Section 9 reads:
‘
Equality
(1)
Everyone
is equal before the law and has the right to equal protection and
benefit of the law.
(2)
Equality
includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative
and other measures
designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may
be taken.
(3)
The
state may not unfairly discriminate directly or indirectly against
anyone
on
one or more grounds,
including race, gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
(4)
No
person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3).
National
legislation must be enacted to prevent or prohibit unfair
discrimination.
(5)
Discrimination
on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination
is fair.”
(underling
supplied)
[14]
The controversial phrase in section 6 (1): … any other
arbitrary ground…” was added
to section 6(1) in an
amendment effected in 2013. The explanatory memorandum accompanying
the Amendment Act states that the amendment
was effected to bring
section 6(1) into line with section 187(1)(f) of the Labour Relations
Act (LRA).
[1]
It is important to
note that section 187(f) of the LRA echoes the substance of section
9(3) of the Constitution, but adds, in its
text, at a spot before the
list, the phrase: “…including but not limited to..”.
Also, the provisions in section
1 of in the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) that
address the “prohibited
grounds” which constitute unfair
discrimination, echo the list in section 9(3).
[2]
The
‘Narrow’ compass of Section 6(1)
[15]
The decision in
Harksen
v Lane NO
1998
(1) SA 300 (CC)
[3]
is the
seminal decision on the interpretation of statutory provisions
listing grounds of unlawful discrimination. The decision
laid down an
approach to interpretation and application of section 8 of the
Interim Constitution, which section addressed equality,
and which is
the forerunner of section 9 in the final Constitution, cited above.
The text of section 8 list omitted as listed grounds
the following:
pregnancy, marital status and birth. These grounds were added to the
list in section 9 in of the Final 1996 Constitution.
The relevant
portion of Section 8 reads thus:
‘
(1)
every person shall have the right to equality before the law and to
equal protection of the law.
(2)
No person shall be unfairly discriminated against,
directly or
indirectly, and, without derogating from the generality of this
provision
,
on one or more of the following grounds in
particular
: race, gender, sex, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief,
culture
or language.
(3)…
.
(4)
Prima
facie
proof of discrimination on any of the grounds
specified in ss (2) shall be presumed to be sufficient proof of
unfair discrimination
as contemplated in that subsection, until the
contrary is established.” (underlining supplied)
[16]
Harksen
v Lane NO
was concerned with sections of the
Insolvency Act 24 of 1936
that
were adverse to an insolvent’s spouse and were alleged to cause
the unlawful expropriation of a spouse’s property.
The Court
addressed at length the approach to adjudication about equality and
discrimination. With reference to earlier decisions
of the
Constitutional Court, the distinction was drawn between the concept
of “differentiation” and the concept of
“unfair
discrimination”.
[4]
The
Court then recognised two classes of “grounds”:
‘
[47]
Section 8(2)
contemplates two categories of discrimination. The first
is differentiation on one (or more) of the 14 grounds specified in
the
subsection (a 'specified ground'). The second is differentiation
on a ground not specified in ss (2)
but
analogous to such ground (
for
convenience hereinafter called an 'unspecified' ground) which we
formulated as follows in
Prinsloo
:
'The
second form is constituted by unfair discrimination on grounds which
are not specified in the subsection. In regard to this
second form
there is no presumption in favour of unfairness. . . .
Given
the history of this country we are of the view that
''discrimination'' has acquired a particular pejorative meaning
relating
to the unequal treatment of people based on attributes
and characteristics attaching to them. . . . (U)nfair discrimination,
when used in this second form in
s 8(2)
, in the context of
s 8
as a whole, principally means treating persons differently in a
way which impairs their fundamental dignity as human beings, who
are
inherently equal in dignity.
. .
.
Where
discrimination results in treating persons differently in a way which
impairs their fundamental dignity as human beings, it
will clearly be
a breach of
s 8(2).
Other forms of differentiation, which in some
other way affect persons adversely in a comparably serious manner,
may well constitute
a breach of
s 8(2)
as well.'
There
will be discrimination on an unspecified ground if it is based on
attributes or characteristics which have the potential
to impair
the fundamental dignity of persons as human beings, or to affect them
adversely in a comparably serious manner
.”
(
underlining
supplied)
[17]
Further, In
Harksen v Lane NO
at [54] a process of
analysis was laid down:
“
[54]
At the cost of repetition, it may be as well to tabulate the stages
of enquiry which become necessary where an attack
is made on a
provision in reliance on
s 8
of the interim Constitution. They are:
(a)
Does
the provision differentiate between people or categories of people?
If so, does the differentiation bear a rational connection
to a
legitimate government purpose? If it does not then there is a
violation of s 8(1). Even if it does bear a rational connection,
it
might nevertheless amount to discrimination.
(b)
Does
the differentiation amount to unfair discrimination? This requires a
two-stage analysis:
(i) Firstly,
does the differentiation amount to 'discrimination'? If it is on a
specified ground, then discrimination
will have been established.
If
it is not on a specified ground, then whether or not there is
discrimination will depend upon whether, objectively,
the
ground is based on attributes and characteristics which have the
potential to impair the fundamental human dignity of persons
as human
beings or to affect them adversely in a comparably serious manner.
(ii) If
the differentiation amounts to 'discrimination', does it amount to
'unfair discrimination'?
If it has been found to have
been on a specified ground, then unfairness will be presumed. If on
an unspecified ground, unfairness
will have to be established by the
complainant.
The test of unfairness focuses primarily on the
impact of the discrimination on the complainant and others in his or
her situation.
If,
at the end of this stage of the enquiry, the differentiation is found
not to be unfair, then there will be no violation of s
8(2).
(c)
If
the discrimination is found to be unfair then a determination will
have to be made as to whether the provision can be justified
under
the limitations clause (s 33 of the interim Constitution).”
(underlining
supplied)
[17]
This formulation, establishing a need to link the alleged unlisted
ground to the listed grounds by
reference to the core value of human
dignity, has been endorsed several times. It is the foundation of the
line of authority that
supports the narrow compass interpretation of
section 6(1) of EEA.
[18]
In
New Way Motor and Diesel Engineering (Pty) Ltd v Marsland
[2009] 12 BLLR 1181
(LAC), this Court addressed the
question whether the adverse treatment meted out to the employee
because of depression fell within
the compass of the automatic unfair
dismissal remedy in section 187(1)(f) of the LRA. The approach
adopted by this Court was that
derived from
Harksen v Lane NO
.
At [24] - [25] this Court held:
‘
[24]
It is not strictly necessary to decide whether the concept of
'disability' as set out as a ground in s 187(1)
(f)
describes
the condition suffered by respondent. The uncontested evidence of the
respondent supported by a letter from his
psychiatrist does support
such a conclusion in that he had suffered from depression. The
description of depression is also set
out in his statement of case.
Depression is a form of mental illness; see
Diagnostic
and Statistical Manual of Mental Disorders IV
.
But, even were his condition not to be considered a form of
disability as set out in s 187(1)
(f)
,
unquestionably the discrimination suffered by respondent as a
result of his 'mental health problem' had, in the words of
Stein AJ,
'the potential to impair the fundamental dignity of that person as a
human being or to affect him in a comparably serious
manner'.
[25]
Expressed differently, the question can be posed thus: did the
conduct
of
the appellant impair the dignity of the respondent; that is did the
conduct of the appellant objectively analysed on the ground
of the
characteristics of the respondent, in this case depression, have the
potential to impair the fundamental human dignity of
respondent? See
for the source of this approach,
Harksen
v Lane NO & others
[1997] ZACC 12
;
1998
(1) SA 300
(CC);
1997 (11) BCLR 1489
(CC);
Hoffmann
v SA Airways
2001
(1) SA 1 (CC)
;
(2000)
21 ILJ 2357 (CC)
.’
[19]
In
Ndudula v Metrorail
(2017) 38 ILJ 2565 (LC), the Labour
Court considered an averment that a difference in wages paid to new
employees, albeit in error,
amounted to unfair discrimination
pursuant to section 6(1) of the EEA. The applicants in that matter
took up the stance that if
they relied on the phrase “any other
arbitrary ground”, it was unnecessary to specify a ‘ground’
and it
was sufficient to describe conduct which was inherently
arbitrary. The court held that the complaint did not articulate a
“ground”
within the compass of section 6(1). The Court
held that:
‘
[73]
The crux of the test for unfair discrimination is the impairment of
human dignity or an adverse effect in a comparably similar
manner,
not the classification of the ground as listed or unlisted as is
evident from the quotation from
Harksen
.
The constitutional distinction between listed and unlisted grounds
affects only the burden of proof and nothing else.
Differentiation on both a listed and analogous ground amounts to
unfair discrimination only if the differentiation has indeed
affected
human dignity or has had an adverse effect in a similar serious
consequence
.
[74]
This means that the test for unfair discrimination is the same
for differentiation on both listed and unlisted grounds.
That
being the case unfair discrimination on listed and unlisted grounds,
respectively, are not different forms of unfair discrimination.
The
Constitution does not render differentiation on a listed ground
automatically unfair.
…
.
[76]
The conclusion to this reasoning is that unfair discrimination may
occur on a listed or unlisted ground. The common factor
is that the
differentiation must affect human dignity or must have a similar
serious consequence. The distinction between listed
grounds and
analogous grounds is one that finds application only with regard to
the burden of proof, both in the Constitution and
in s 6.’
[20]
In the Court
a quo
, Prinsloo J followed the approach in
Harksen v Lane
NO
and as illustrated in
Ndudula v
Metrorail.
Accordingly, it was held that:
‘
[31]
…. I am inclined to follow, in fact I am bound to
follow
Pioneer
Foods
[5]
and
Metrorail
,
where the narrow interpretation was accepted. In
Metrorail
it
was effectively held that an arbitrary ground is nothing more and
nothing less than a ground analogous to a listed ground,
as
contemplated in
Harksen.
The
crux of the test for unfair discrimination is the impairment of human
dignity or an adverse effect in a comparable, similar
manner and not
the classification of the ground as listed or unlisted. The
distinction between listed and unlisted grounds affects
only the
burden of proof. Differentiation on both a listed and analogous
ground amounts to unfair discrimination only if the
differentiation has indeed affected human dignity or has had an
adverse effect with a similar serious consequence.’
Critique
of the Broad Compass of Section 6(1)
[21]
Support for the rationale of a broad compass was first articulated in
in the Labour Court in
Kadiaka
v Amalgamated Beverage Industries
(1999)
20 ILJ 373 (LC). That case was concerned with the question whether or
not a refusal by a Business to employ a former employee
of a rival
Business could constitute a residual unfair labour practice as
provided for in article 2 of the 7th schedule to the
LRA.
[6]
That court held that no case of unfair discrimination had been made
out. Reference was made to the test in
Harksen
v lane NO
.
In addressing the meaning of “arbitrary,” in the
critical, obiter, passage which reads:
‘
[42]
This discrimination was not done on any of the specified grounds and
so the primary ground, ie arbitrary grounds, must engage
our
attention. What then are arbitrary grounds?
An arbitrary ground is a ground which is capricious or proceeding
merely from whim and not based on reason or principle
(see
L Baxter
Administrative Law
at
521-2 relying on
Beckingham v
Boksburg Licensing Court
1931 TPD
280
at 282).
[43]
In my view, without attempting to be exhaustive,
unfair
discrimination on an arbitrary ground takes place where the
discrimination is for no reason or is purposeless
. But even
if there is a reason, the discrimination may be arbitrary if the
reason is not a commercial reason of sufficient
magnitude that it
outweighs the rights of the job-seeker and is not morally offensive.
The discrimination must be balanced against
societal values,
particularly (as emphasized repeatedly by the Constitutional Court)
the dignity of the complainant and a society
based on equality and
the absence of discrimination….’
(underlining
supplied)
[22]
In
NUMSA
v Gabriels (Pty) Ltd
(2002) 23 ILJ 2088 (LC), at [14] – [17] Waglay J (as he then
was) concluded that
Kadiaka
was
wrongly decided and did not follow it. At [14] the rationale for not
following
Kadiaka
was articulated as being a failure to adhere to the dictum in
Harksen
that an act of unfair discrimination under the rubric of arbitrary
had to be analogous to the listed grounds. Waglay J alluded
also to a
line of authority in the Labour Court consistent with this view.
[7]
[23]
A notion similar to that in
Kadiaka
about the significance of the idea of an “arbitrary”
ground was articulated by
D’arcy
du Toit
in considering the meaning to be given to the post-amendment section
6(1).
[8]
The thesis advanced was
that the phrase “ … any other arbitrary ground”
had to be saved from redundancy. Thus,
it must be understood to add
something distinctive to the listed grounds. This thesis assumed the
addition of a fresh class of
grounds that is amorphous and is
knowable simply by the external manifestation of capriciousness. Its
broad scope was argued to
be desirable.
[24]
This is a radical idea. It would make section 6(1) a font of a remedy
for grievances with virtually
no limits. But the EEA is not intended
to be a catch all or a panacea. Indeed, the EEA is the instrument of
section 9 of the Constitution
and therefore its mission is to give
teeth to that Constitutional guarantee within the scope of the terms
expressed in that section.
Section 9 is not an all-encompassing
injunction, rather its purpose is to give recognition to the value of
our humanity and provide
a remedy for aggression against us on the
grounds of our intimate attributes, whether inherent or adopted. In
other words, section
9 has a specific and concrete
focus,
intelligible within the context of the historical experience of South
Africa’s legacy of oppression. The writers,
Garbers
and Le Roux,
[9]
rightly caution against being seduced by the idea that
anti-discrimination law can be weaponised to solve all labour market
ills.
Other vicissitudes of life find remedies elsewhere, not least
of all in the panoply of protections in Labour Legislation.
[25]
In
Chitsinde v Sol Plaatjie University
[2018] 10 BLLR 1012
(LC), the issue was whether it was an act of unfair discrimination
that only one candidate in a series of job interviews was required
to
write a test. The case failed on the facts. However, at [31] of that
judgment, the Court endorsed the view that the 2013 amendments
introduced a self-standing ground of arbitrariness and, as in
Kadiaka,
this meant capriciousness. As I understand the
judgment these remarks were obiter. Regrettably that Court paid very
little attention
to the jurisprudence of the Constitutional Court
with regard to section 9 of the Constitution which is also the source
of section
6 of the EEA which is predicated, as already noted, on the
basis that the prohibited grounds are all designed to protect the
dignity
of an affected person .That is the starting point of any
inquiry regarding discrimination This conclusion is reinforced by the
‘words’ any other arbitrary ground”. The insertion
of the word ‘other’ supports the conclusion that
the
phrase “any other arbitrary ground” was not meant to be a
self-standing ground, but rather one that referred back
to the
specified grounds, so that a ground of a similar kind would fall
within the scope of section 6. None of these important
considerations
were taken into account by the Court. In addition, the Court,
ostensibly, did not have the benefit of the views
of
Garbers and
Le Roux
to which I now turn in some detail.
[26]
Garbers
and Le Roux
offer
a critique of the broad compass idea and, in great detail, eviscerate
the thesis.
[10]
It is
unnecessary to address all of their reasoning to demonstrate a
convincing rejection of the broad compass interpretation.
The
essential point is that the phrase to which meaning must be
attributed is “ … any other arbitrary ground”
and
not the word “arbitrary,” free from its context and
function. In this context the word “arbitrary”
is not a
synonym for the word “capricious.” The injunction in
section 6(1) is to outlaw, not “arbitrariness”,
but
rather to outlaw unfair discrimination that is rooted in “another”
arbitrary ground (the syntax of “ …any
other…”
cannot be understood as otherwise than looking back at what has been
stipulated in the text that precedes
it). Capriciousness, by
definition, is bereft of a rationale, but unfair discrimination on a
“ground” must have a rationale,
albeit one that is
proscribed. The glue that holds the listed grounds together is the
grundnorm
of Human Dignity. The authors express this view, with which I
agree:
[11]
“
Discrimination
is about infringement of dignity (or a comparably serious harm),
about an identifiable and unacceptable ground and
about the link
directly or indirectly) between that ground and the differentiation.
Should a ground not be listed, it should meet
the well-established
test for unlisted grounds: it must have the potential to impair the
fundamental human dignity of a person
(or have a comparably serious
effect) and has to show a relationship with the listed grounds.’
[27]
Accordingly, the decision by the Prinsloo J in the Court
a quo
to apply the narrow compass interpretation of the phrase “…any
other arbitrary ground…” in section 6(1)
is endorsed by
this Court.
Is
there a cognisable case pleaded on the narrow compass interpretation?
[28]
The next step is to consider whether, upon the narrow compass
construction of section 6 (1), the appellants
have pleaded a
cognisable case. What exactly is averred by the appellants? Allusions
are made to nepotism, differences in years
of service and recruitment
of the Chamber Support Officers from the ranks of persons who were
members of the SAPS at that moment
of recruitment. The responsibility
for this grievance is alleged to be the brainchild of their manager,
Van der Spuy. A fair reading
of these averments reveals that the
critical allegation is that a group of persons have been given
preferential treatment based
on their affinity with Van der Spuy who
is a fan of the SAPS: in a word, this is nepotism.
[29]
Do these averments that the protection officers are the victims of
nepotism meet the test in
Harksen
v Lane NO
?
In my view it does not
.
[12]
Nepotism, in any case, cannot be countenanced, even more so in
the case of Parliament. However this court is required to
determine
this dispute in terms of the EEA and nepotism is not a necessary
affront to human dignity, in neither the sense contemplated
by
section 9 of the Constitution, nor in section 6 (1) of the EEA. To be
neglected because of nepotism implies no characteristic
of a person
so victimised nor does it invoke any pejorative perspective of such
person, whether inherent or adopted. Nepotism differs
from, for
example racism, where the bearer of authority or of power rejects X
because of X’s race and prefers Y because of
Y’s race. If
what Van der Spuy has done is indeed to prefer his chums to the
appellants; ie behaved nepotistically, that
conduct, however
wrongful, is not unfair discrimination within the purview of section
6(1).
[30]
In the appeal, counsel for the appellants correctly conceded that the
Statement of Case, filed by the
appellants, had been composed on the
premise that the broad compass applied and that if the argument in
support of the broad compass
failed, the statement of case had not
made out a proper cause of action. This is a correct concession
because the ground relied
upon in the statement of case, if indeed it
can properly be understood to be a “ground” is not
analogous to the listed
grounds in section 6(1).
[31]
Accordingly, the appeal must be dismissed in relation to the point
agreed to be decided.
The
Order of the Court a quo dismissing the appellants’ case
[32]
It is not clear why the Court
a quo
, in consequence of
upholding the exception, dismissed the appellants’ case. The
terms of the agreement in the pre-trial conference
minute do not
expressly provide for such an outcome if the respondent was
successful.
[33]
The usual consequence of a successful exception is the affording of
an opportunity to amend, if that
is possible. I express no view as to
whether, in this case, an alternative form of pleading could
conceivably rescue the appellants’
case. However, such an
opportunity ought to be afforded to the appellants.
[34]
Of course, if the appellants cannot upon reflection, articulate a
case that is encompassed by section
6(1) as interpreted by this
Court, they shall be obliged to abandon the case or in other
proceedings endeavour to articulate a
case that addresses the true
gravamen of their grievance.
Costs
[35]
Given the nature of the controversy, the conflicting case-law and the
need to resolve the existence
of rival interpretations being in the
public interest, it is appropriate that no costs order be made.
The
Order
(1)
The appeal is
dismissed.
(2)
Paragraph 1 of
the order of the Court
a
quo
is
confirmed.
(3)
Paragraph 2 of
the order of the Court
a
quo is set aside.
(4)
The appellants
may serve a notice of amendment within 30 days of the handing down of
this judgment, failing which the application
is dismissed.
________________
Sutherland
JA
I
agree
________________
Davis
JA
I
agree
_________________
Murphy
AJA
APPEARANCES:
FOR
THE APPELLANTS:
Adv C. De Kock,
Instructed
by Bargraims Attorneys
FOR
THE RESPONDENT:
Adv A Redding SC, with him A Myburg Sc and Adv
A Montzinger.
Instructed
by the State Attorney Cape Town
[1]
187
Automatically unfair dismissals
(1)
A
dismissal
is automatically unfair if the
employer, in dismissing the
employee
, acts contrary to
section 5 or, if the reason for the
dismissal
is-
(a)
……(e)
(f)
that the employer unfairly discriminated against an
employee
,
directly or indirectly, on any arbitrary ground,
including
,
but not limited
to race, gender, sex, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience,
belief, political
opinion, culture, language, marital status or
family responsibility” (underlining supplied).
[2]
Section
1, definitions, of
Pepuda
Act 4 of 2000
:
“
'prohibited
grounds' are-
(a)
race,
gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion,
conscience,
belief, culture, language, birth and HIV/AIDS status; or
[Para.
(a)
substituted
by
s.
30
of
Act
8 of 2017
(wef
2 August 2017).]
(b)
any
other ground where discrimination based on that other ground-
(i) causes
or perpetuates systemic disadvantage;
(ii) undermines
human dignity; or
(iii) adversely
affects the equal enjoyment of a person's rights and freedoms in a
serious manner that is comparable
to discrimination on a ground in
paragraph
(a)
;
(subsection
(b) should be read with the decision in
Harksen v Lane NO at
[54]
, which seems to be the inspiration of this formulation.)
[3]
Curiously,
the paragraph numbers in this judgment in the SALR differ from the
paragraph numbers in the original version published
by the
Constitutional court as CCT 9/97.
[4]
Prinsloo
v Van der Linde
1997
(3) SA 1012
(CC) and
President,
RSA v Hugo
1997 (6) SA BCLR 708 (CC).
[5]
Pioneer
foods (Pty) Ltd v Workers against Regression
(2016)
37 ILJ 2872 (LC): a matter which dealt with the question whether a
differentiation of wage rate based on length of service
could
constituted an act of discrimination within the meaning of section
6(1) of EEA.
[6]
.
I might add that, in my view, it is in any case, doubtful if this
decision addressing a quite different provision and
set of
circumstances is at all a helpful source of analysis. Moreover, it
was decided before the 2013 amendments to the EEA.
[7]
See:
Lagadien v University of Caope Town (2000) 21 ILJ 2469
(LC); Ntai SA Breweries Ltd (2001) 22 ILJ 214 (LC)
[8]
D’arcy
Du Toit,
“
Protection
against unfair Discrimination: Cleaning up the Act?” (2014) 35
ILJ 2623 – 2636, at esp pp2626-2628.
[9]
Christoph
Garbers and Pieter Le Roux,
“
Employment
Discrimination into the Future, 2018 (2) Stell LR 237 -269.
at p249.
[10]
Christoph
Garbers and Pieter Le Roux,
“Employment Discrimination into the Future, 2018 (2) Stell LR
237 -269
[11]
Ibid
At
p 261
[12]
See
Harksen
v Lane NO
at [50].