IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS98/2019
In the matter between:
SEENATSO RIBA Applicant
and
EMALAHLENI LOCAL MUNICIPALITY Respondent
Heard: 11 October 2023
Delivered: 05 February 2024
JUDGMENT
MUKOME, AJ
Introduction
[1] The Respondent has raised various points in limine and exceptions against
the Applicant’s statement of case.
[2] The points in limine were on the basis that this court has no jurisdiction to
entertain the Applicant’s unfair discrimination dispute, and the exceptions
were that the statement of case was vague and embarrassing.
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Relevant facts
[3] On 8 March 2018, the Applicant applied for the position of Labour Relations
Officer as advertised by the Respondent.
[4] In terms of the advert , “If no response is received from Emalahleni Local
Municipality within 60 days after the closing date, it must be regarded that
your application has not been successful”.
[5] The application process closed on 14 March 2018, and on 26 March 2018, the
shortlisted candidates were approved and signed off by the Acting Municipal
Manager.
[6] Following the closing date, the Applicant visited the Respondent and was
shocked to be informed that the positions were filled in May 2018, he was also
informed that the Respondent does not address walk-in complaints regarding
advertised positions and that he should reduce his enquiry to writing.
[7] On 12 July 2018 , the Applicant addressed an email to the Respondent
enquiring about the progress of the applications.
[8] A response was sent to the Applicant on 16 July 2018 , informing him that the
position had already been filled.
[9] On 18 July 2018, the Applicant then requested details regarding the candidate
that had been chosen. He sent the email again on 21 September 2018.
[10] A response was sent to the Applicant on 11 December 2018 , informing him
that the position had been filled and the regret letters were sent to the
unsuccessful candidates.
[11] The Applicant then referred his dispute to the CCMA on 7 January 2019.
Respondent’s submissions
Point in limine 1: Jurisdiction
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[12] The Respondent submits that this Court does not have jurisdiction to
adjudicate the Applicant’s referral due to it being made out of time , and
without a condonation application.
[13] The Respondent contends that the job advertisement stated that should an
applicant not receive a response from the Respondent within 60 days from the
closing date, 14 May 2018, then the application is unsuccessful. The
Applicant should have referred his dispute on or before 14 November 2018
being 6 months from 14 May 2018, but only referred the dispute on 7 January
2019.
[14] The Applicant has failed to take this Court into his confidence by failing to
state the date on which he physically attended to the Respondent and was
informed that the position was filled.
[15] The CCMA had no jurisdiction to hear the unfair discrimination dispute due to
late referral and failure to bring a substantive application for condonation.
Point in limine 2: Onus of proof
[16] In respect of the second point in limine, the Respondent submits that in terms
of section 11(2) of the Employment Equity Act 1 (EEA), whe never unfair
discrimination is alleged on an arbitrary ground, the applicant must prove, on
a balance of probabilities that the conduct complained of is not rational,
amounts to discrimination and discrimination is unfair.
[17] Therefore, absent any proof, the Applicant’s claim must fail.
First exception
[18] The Applicant’s pleadings are vague and embarrassing in that it is not clear
whether the Applicant’s claim is founded on –
18.1. An alleged breach of any right in the Constitution.
18.2. An alleged breach of section 6(1) of the EEA.
1 Act 55 of 1998.
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18.3. Unlawfulness as a cause of action or the grounds of the alleged
unlawfulness.
18.4. Any other right; or
18.5. One or more of the above.
Second exception
[19] The Applicant has pleaded that he was discriminated on the basis that he has
a record of a previous dismissal.
[20] The Respondent submits that the Applicant’s pleadings are vague and
embarrassing as he relies on discussions made during the conciliation
hearing, and thus it is not aware of the case it is called to meet where there is
privileged information before this Court.
Third exception
[21] The Applicant’s pleadings are vague and embarrassing as it is not clear
whether he relies on a breach of the direct Constitutional right to human
dignity and equality or relies in arbitrary grounds as a separate category of
discrimination not premised on the right to dignity or equality.
Fourth exception
[22] The Applicant has failed to plead any unfairness or set out why the
Respondent’s approach constitutes unfair discrimination, particularly the
elements stated under section 6 of the EEA.
Fifth exception
[23] The Applican t’s pleadings are contradictory as he complains of the
Respondent’s approach being discriminatory and in the same breadth
concedes that it is not discriminatory.
Sixth exception
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[24] The Applicant has failed to set out the basis for his holding a legitimate
expectation that his application would be assessed solely on the criteria set
out in the advertisement.
Applicant’s submissions
[25] The Applicant argues that he only became aware that the position was filled
on 16 July 2018 , when he received formal communication from the
Respondent.
[26] The issue of the referral being out of time was not raised at the CCMA,
highlighting that the Respondent implicitly agreed to continue with the referral.
[27] With regards to the onus of proof, t he Applicant argues that this will be
determined by the trial court based on the grounds presented to it.
[28] He was unable to provide the required particulars in his pleadings, as he had
requested documents from the Respondent without any response regarding
the particulars of the incumbent and/or reasons why he had not been selected
for the role.
Discussion
[29] Prior to determining the Respondent’s exceptions, it is important to deal with
its first point in limine being whether this Court has jurisdiction to adjudicate
the Applicant’s referral.
[30] The EEA, under section 10(2) provides the following –
‘(2) Any party to a dispute concerning this Chapter may refer the
dispute in writing to the CCMA within six months after the act or
omission that allegedly con stitutes unfair discrimination.’ (own
emphasis)
[31] In the matter of Amalungelo Worker's Union obo Mayisela and Others v
Commission for Conciliation, Mediation and Arbitration 2 (Amalungelo), the
2 [2021] ZALAC 55; (2022) 43 ILJ 600 (LAC).
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Labour Appeal Court (LAC) considered section 198 D(3) of the Labour
Relations Act 3 (LRA), which similarly provides that the referral of a dispute
under section 198D(1) may be referred, in writing, to the Commission or the
bargaining council, within six months after the act or omission concerned.
[32] The Labour Appeal Court (LAC) in Amalungelo, stated the following with
regard to when an “act or omission” would have been said to have arisen4 -
‘The “act or omission” referred to in subsection (3) is clearly that which
gave rise to the dispute. And the dispute, as long as it is the same one,
only has one initial date on which it arose. The fact that the dispute is
ongoing, in the sense that it recurs after it first arose, may be because
it is either never resolved, or satisfactorily resolved. But does that not
imply that the parties, as it were, necessarily have a new “act or
omission” or “wrong” every time the same dispute erupts again.’
[33] Therefore, should the above qualification be applied to the provisions of
Section 10(2) of the EEA, it would mean that an act or omission, constituting
unfair discrimination, only has one initial date.
[34] In this matter, it is common cause that the position the Applicant had applied
for was filled by the Respondent. The Applicant alleges that he was unfairly
discriminated against by the Respondent, in that he was not appointed due to
him being previously dismissed by his former employer.
[35] The act or omission of unfair discrimination took place at the time that the
Applicant was not appointed, and another candidate was appointed.
[36] In Amalungelo, the LAC held that the “clock starts after the act or omission
concerned occurs, and not when a consequence of that act or omission is
experienced or becomes manifest”.5
3 Act 66 of 1995, as amended.
4 Amalungelo at para 20.
5 Amalungelo at para 25.
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[37] The Applicant pleads that when he attended the Respondent’s offices to
enquire regarding the position, he was informed that the position had been
filled during May 2018.
[38] The above illustrates that the clock started in May 2018 , when the position
was filled and not when the Applicant became aware that the position had
been filled.
[39] It was therefore incumbent upon the Applicant to have referred th e dispute to
the CCMA within six months after it had occurred. The Applicant only referred
the dispute on 7 January 2019, 8 eight months after the act or omission
concerned, by which time it was late.
[40] In light of the fact that the Applicant’s referral is out of time, this Court does
not have jurisdiction to adjudicate the referral6, making it unnecessary to deal
with the Respondent’s second point in limine and its exceptions.
[41] In the result, the following is ordered:
Order
1. The Respondent’s first point in limine is upheld.
2. The Applicant’s referral is dismissed.
L Mukome
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: SS Riba
Instructed by:
For the Respondents: Adv Tshepang Segage
Instructed by: De Swardt Myambo Hlahla Attorneys
6South African Transport and Allied Workers Union (SATAWU) and Another v Tokiso Dispute
Settlement and Others [2015] ZALAC 12; (2015) 36 ILJ 1841 (LAC) at para 18.