THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS 227 / 2023
In the matter between:
TUMELO CLEMENT MAKGELEDISE Applicant
And
DSV SOLUTIONS (PTY) LTD Respondent
Heard: 26 January 2024
Delivered: 29 January 2024
This judgment was handed down electronically by consent of the parties’
representatives by circulation to them via email. The date for hand -down is
deemed to be 29 January 2024.
JUDGMENT
PRINSLOO J
Introduction
[1] The Applicant filed a statement of case on 14 June 2023, wherein he identified
the legal issues as sections 6 and 10 of the Employment Equity Act
1 (EEA). The
Applicant seeks compensation “in the form of damages for hurt, discrimination and the
loss of rights…”
[2]
[3] On 28 June 2023, the Respondent filed a notice to remove a cause of complaint,
stating that the Applicant’s statement of case is vague and embarrassing and does not
disclose a cause of action, in that it does not contain the necessary averments to
1 Act 55 of 1998, as amended.
2
sustain a cause of action relating to unfair dismissal or unfair discrimination. The
Applicant was afforded 15 days to remove the causes of complaint raised by the
Respondent. The Applicant did not remove the causes of complaint raised by the
Respondent and on 28 July 2023, the Respondent filed an exception, which was set
down for hearing on the interlocutory roll.
The Applicant’s pleaded case
[4] The Applicant pleaded that he was informed on 19 January 2023 that the
Respondent was going to restructure and he received a notice in terms of section
189(3) of the Labour Relations Act
2 (LRA). On 23 January 2023, he was presented
with a letter of retrenchment and an option to settle with the Respondent. The Applicant
subsequently referred his dismissal dispute to the Commission for Conciliation,
Mediation and Arbitration (CCMA) and the matter remained unresolved. The Applicant
pleaded that his “dismissal [constitutes] discrimination for reasons unknown to me”.
[5] The Applicant’s case concerns “the discriminatory practices meted out to the
applicant during the process leading to dismissal ”. The legal issues are identified as
sections 6 and 10 of the EEA and the relief sought is compensation for damages
suffered.
Applicable legal principles
[6] A statement of claim must inform the respondent of the material facts and the
legal issues arising from those facts upon which the applicant will rely to succeed with
his or her claim(s). Those must be sufficiently detailed to enable the respondent to
respond and to be informed of the nature or essence of the dispute.
3
[7] A statement of claim must establish a factual foundation for the pleaded cause
of action to stand. For a pleading to disclose a cause of action, it must set out every
material fact which would be necessary for the party to prove, if traversed, in order to
2 Act 66 of 1995, as amended.
3 See: Harmse v City of Cape Town [2003] ZALC 53; (2003) 24 ILJ 1130 (LC), Candy and others v
Coca Cola Fortune (Pty) Ltd [2014] ZALCJHB 320; (2015) 36 ILJ 677 (LC).
3
support its right to a judgment of the court. A pleading which fails to meet this standard
is excipiable.4
[8] The Applicant must plead the material facts and legal issues in sufficient detail
to enable the Respondent to respond and the pleadings must inform the Respondent
with sufficient factual and legal particularity what it is that the Applicant would be relying
upon to succeed in its claim.
[9] In Candy and others v Coca Cola Fortune (Pty) Ltd,
5 the Court considered the
purpose of a statement of claim and held that:
‘In its simplest terms, the statement of case must at least inform the respondent party
what the pertinent facts are on which the applicant will rely in the case, and further,
what the cause of action is that the applicant will pursue as founded on these facts.
That must be done in sufficient particularity so as to enable the respondent to provide
a proper answer to these facts and the related cause of action. The statement of claim
and the answering statement thereto are not just for the benefit of the par ties. They
also serve the court, in that the issues in dispute are properly determined and other
possible alternative causes of action are eliminated from having to be considered by
the court. A proper statement of claim and answering statement are imperat ive to the
fundamental requirement of expeditious resolution of employment disputes in terms of
the LRA. As the court said in Harmse v City of Cape Town:
[6] The statement of claim serves a dual purpose. The one purpose is to bring a
respondent before the court to respond to the claims made of and against it and the
second purpose of a statement of claim is to inform the respondent of the material facts
and the legal issues arising from those facts upon which applicant will rely to succeed
in its claims.
[7] The material facts and the legal issues must be sufficiently detailed to enable
the respondent to respond, that is, that the respondent must be informed of the nature
or essence of the dispute with sufficient factual and legal particularity so that it knows
what it is that the applicant is relying upon to succeed in its claim”.’ [Footnotes omitted]
4 McKelvey v Cowan NO 1980 (4) SA 525 (Z) (McKelvey) at 526D - E.
5 [2014] ZALCJHB 320; (2015) 36 ILJ 677 (LC) at para 38.
4
[10] The test to be applied when an exception is taken to particulars of claim on the
basis that they disclose no cause of action is whether the particulars disclose every
fact which it would be necessary for the plaintiff to prove if traversed, in order to support
the right to judgment. A pleading is excipiable only if no possible evidence led on the
pleading can disclose a cause of action .6 A distinction is drawn between facta
probanda, primary factual allegations that must be made, and the facta probantia, or
secondary factual allegations in support of the former. Generally, the latter are matters
for particulars for trial or matters of evidence.
Analysis
Section 6 of the EEA
[11] It is evident from the Applicant’s pleaded case and legal issue identified in the
statement of case that his case is firmly based on the provisions of the EEA and that
he pleaded no case and sought no relief in terms of the LRA.
[12] Section 6(1) of the EEA provides that:
‘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.’
[13] It is evident from the statement of claim that the Applicant’s claim in terms of the
EEA is pleaded as a self -standing claim and separate cause of action. The Applicant
must set out explicitly and disclose in no uncertain terms what the ground for
discrimination is.
[14] The Respondent’s case is that the Applicant failed to plead a ground of
discrimination which meets the requirements and as such, it lacks the necessary
averments to sustain a cause of action based on the EEA.
[15] The Applicant in his statement of claim, does not allege a listed ground of
discrimination, thus his case can only be premised on an arbitrary ground of
6 McKelvey supra.
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discrimination and he has to disclose such an arbitrary ground. In Naidoo and others
v Parliament of the Republic of SA, 7 this Court considered the interpretation of the
phrase any arbitrary ground and held that:
‘[36] Differentiation per se does not constitute discrimination. Differentiation on a
specified ground of discrimination is presumed to constitute unfair discrimination,
which presumption is rebuttable. Given that an arbitrary ground is synonymous with an
unlisted/unspecified ground, the test for whether discrimination is established, is that
set in Harksen, namely, if there is differentiation based on an unspecified ground, then
whether or not there is discrimination will depend upon whether, objectively, the ground
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.
[37] Although the Constitutional Court did not provide a comprehensive description
of what ‘attributes and characteristics’ would comprise, it held that:
8
“What the specified grounds have in common is that they have been used (or misused)
in the past (both in South Africa and elsewhere) to categorise, marginalise and often
oppress persons who have had, or who have been associated with, these attributes or
characteristics. These grounds have the potential, when manipulated, to demean
persons in their inherent humanity and dignity. There is often a complex relationship
between these grounds. In some cases they relate to immutable biological attributes
or charact eristics, in some to the associational life of humans, in some to the
intellectual, expressive and religious dimensions of humanity and in some cases to a
combination of one or more of these features.”
[38] The test set out in Harksen v Lane NO and others
9 will apply and, in order for
the alleged grounds of arbitrary discrimination to qualify as such, they must, objectively,
constitute grounds 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 to a listed ground. In short: the unequal
treatment must be based on attributes and characteristics attaching to a person before
it will fall within the meaning of ‘discrimination’.’
7 (2019) 40 ILJ 864 (LC) at paras 36 - 38, which was upheld by the Labour Appeal Court in Naidoo and
others v Parliament of the Republic of South Africa [2020] ZALAC 38; (2020) 41 ILJ 1931 (LAC).
8 Harksen v Lane NO and others 1998 (1) SA 300 (CC) at para 50.
9 ibid.
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[16] Even on the most generous reading of the pleadings, it is evident that the facts
pleaded by the Applicant do not foreshadow a case for unfair discrimination . The
Applicant did not disclose a cause of action in respect of the claim for unfair
discrimination and did not make the necessary averments to sustain such a cause of
action, in terms of the provisions of the EEA.
[17] There are however two other pertinent issues in respect of the Applicant’s claim
in terms of the EEA which requires the attention of this Court. They relate to the issue
of jurisdiction.
[18] Notwithstanding Mr Nel’s argument that this Court should first decide the
exception, whereafter a special plea relating to jurisdiction would be raised, I am of the
view that the issue of jurisdiction is the primary issue to be decided first. Absent
jurisdiction, this Court cannot adjudicate the dispute, including deciding the exception.
[19] The LRA 7.11 form shows that the Applicant has referred a dismissal dispute
relating to operational requirements to the CCMA. The dispute was conciliated and a
certificate of outcome was issued on 13 March 2023. The certificate of outcome shows
that a section 189 unfair retrenchment dispute was referred to conciliation on 9
February 2023, was conciliated on 13 March 2023 and as the dispute involved more
than one employee, it was referred to the Labour Court for adjudication. It is evident
from the certificate of outcome that the dispute that was referred and conciliated, was
an unfair dismissal dispute.
[20] Sections 10(2), (5) and (6) of the EEA provide that any dispute concerning
Chapter II may be referred to the CCMA, that the CCMA must attempt to resolve the
dispute through conciliation and if it remains unresolved, it may be referred to the
Labour Court for adjudication. It is evident that the EEA dictates that a dispute
regarding unfair discrimination must be conciliated before it is adjudicated by the
Labour Court.
[21] In National Union of Metalworkers of SA on behalf of members and others v Bell
Equipment Co SA (Pty) Ltd
10 and National Union of M etalworkers of SA v Intervalve
10 [2010] ZALC 217; (2011) 32 ILJ 382 (LC).
7
(Pty) Ltd and others 11 (Intervalve), it was confirmed that referral for conciliation is
indispensable and that it is a precondition to the Labour Court’s jurisdiction over unfair
dismissal disputes. The same applies where the EEA prescribes conciliation before a
dispute is referred to the Labour Court for adjudication.
[22] In Tlou v University of Zululand ,12 a similar question was considered and the
Court held that where the applicant referred an unfair discrimination dispute in terms
of section 10 of the EEA to the CCMA for conciliation, it did not include an unfair
dismissal dispute in terms of the LRA. An unfair dismissal dispute was never referred
and the referral of an unfair discrimination dispute could not cure the failure to refer an
unfair dismissal dispute, because the disputes are materially different and provided for
in separate pieces of legislation , namely the EEA and the LRA . Referral of the one
does not automatically include the other. The Labour Court has no jur isdiction to
adjudicate a dispute that has not been conciliated.
[23] In casu, the same principles apply. The Applicant has not referred an unfair
discrimination dispute in terms of the EEA to the CCMA, no evidence was placed
before this Court to show that such dispute was indeed referred and conciliated and
as such, the Court has no jurisdiction to adjudicate the Applicant’s unfair discrimination
dispute. The only dispute referred and conciliated was an unfair dismissal dispute in
terms of the LRA and such referral and subsequent conciliation do not include a dispute
in terms of the EEA.
[24] The second difficulty is that the Applicant’s pleaded case is that “my dismissal
[constitutes] discrimination for reasons unknown to me.”
[25] Section 10(1) of the EEA specifically excludes a dispute about an unfair
dismissal. An unfair discrimination dispute , pursued in terms of the EEA, does not
include an unfair dismissal dispute and the Applicant’s pleaded case in this regard is
incompetent.
11 [2014] ZACC 35; (2015) 36 ILJ 363 (CC).
12 (2018) 39 ILJ 1841 (LC).
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[26] Absent a referral for conciliation, this Court has no jurisdiction to adjudicate the
Applicant’s claim in terms of the EEA. In my view, this is a fatal defect that cannot be
cured by an amendment to the pleadings.
Costs
[27] This Court has a wide discretion to make orders for costs according to the
requirements of the law and fairness.
[28] It is trite that the general rule that costs should follow the result does not apply
in labour matters. In my view, this is a matter where the interests of justice and fairness
will be best served by making no order as to costs.
[29] In the premises, I make the following order:
Order
1. The Applicant’s case pursued in terms of the provisions of the Employment
Equity Act is struck off the roll for lack of jurisdiction;
2. There is no order as to costs.
Connie Prinsloo
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: No appearance
For the Respondent: Advocate A J Nel
Instructed by: Darran Ledden Inc Attorneys