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[2014] ZALCJHB 50
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Ntele v Anglo Platinum Limited and Another (JS399/12) [2014] ZALCJHB 50 (18 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JS 399/12
BEN
NTLELE
Applicant
and
ANGLO PLATINUM
LIMITED
First Respondent
COLIN DA
SILVA
Second Respondent
Heard:
30 January 2014
Delivered:
18 February 2014
JUDGMENT
TLHOTLHALEMAJE, AJ
Introduction:
[1] The Applicant, who is
still employed by the First Respondent, had referred an alleged
unfair discrimination dispute to the Commission
for Conciliation,
Mediation and Arbitration. A certificate of non-resolution was issued
on 20 February 2012, thus enabling him
to launch this application. On
16 May 2012, the Applicant had filed a statement of claim “
in
terms of section 6 and 10 of the Employment Equity Act read with Rule
50 of the Labour Relations Act”
(Sic).
[2] According to the
Applicant, the nature of his claim is in two parts. The first part
was substantive in nature and concerned
the alleged failure by the
First Respondent to properly consider and/or to appoint him to the
position of Evaluation Day Shift
Leader (EDSL) (a managerial
position). The second part of the dispute was procedural in nature
and involved an alleged flawed procedure
that was followed by the
First Respondent in appointment of the Second Respondent to the
position, and an allegation that the First
Respondent failed to
adhere to and/or abide by the correct policies and procedures and the
framework to allow a procedurally fair
process.
Preliminary
issues raised:
[3] Subsequent to the
First and Second Respondent having filed a response to the statement
of claim, the parties had on 3 September
2013 filed a signed
pre-trial minute, and the matter was set-down for trial on 30 January
2014. On 29 January 2014, a day before
the trial, the Respondents had
filed their written heads of argument and raised a preliminary point
to the effect that the Court
lacked jurisdiction to entertain the
dispute.
[4]
The jurisdiction of the Court was challenged on two fronts. The first
was that the monitoring and enforcement procedures envisaged
in the
Employment Equity Act ought to have been utilised by the Applicant.
It was submitted that the issues raised by the Applicant
in his
pleadings were covered by the provisions of Chapter III of the EEA.
In this regard, it was argued that the Court lacked
jurisdiction due
to the reason that the Applicant did not comply with the provisions
of the Employment Equity Act in that he should
have first used the
compliance mechanisms of Chapter V of that Act. It was further argued
that the facts of the Applicant’s
case were similar to those in
Minister
of Safety and Security v Govender
[1]
where the Court had held
inter
alia
that it would lack jurisdiction to entertain proceedings in respect
of alleged breaches of the obligation to implement affirmative
action
measures (being an obligation under chapter III of the EEA), prior to
exhaustion of the enforcement procedures envisaged
under Chapter V of
that Act. The Respondents had made reference to various paragraphs in
the Applicant’s statement of case,
which it was contended was
replete with references to the affirmative action obligations of the
First Respondent. In this regard,
it was further contended that the
Applicant’s claim was plainly premised on alleged breaches by
the First Respondent of its
obligation to implement affirmative
action measures.
[5] The second
preliminary point raised was to the effect that in addition to the
Applicant’s claim being based on Chapter
III of the EEA, the
Applicant’s claim related to an alleged unfair conduct by the
First Respondent pertaining to promotion.
In this regard, it
was contended that the Applicant had made an assertion that he ought
to have been promoted to the position
instead of the Second
Respondent. To this end, it was argued that unfair labour practice
disputes fell within the exclusive jurisdiction
of the CCMA, and
outside of the jurisdiction of this Court acting as arbiter of first
instance.
[6] In response, Mr.
Lennox on behalf of the Applicant had submitted that taking into
account the nature of the preliminary points
raised, the Respondents
should have raised these issues by way of exception in terms of the
provisions of Rule 11 of the Rules
of this Court, rather than by way
of a jurisdictional objection. To this end, he submitted that
fairness required that the Applicant
be afforded an opportunity to
amend his pleadings.
[7] In regards to the
preliminary points raised, arguments advanced on behalf of the
Applicant were to the effect that his case
was that he had been
discriminated against on account of his race as envisaged in section
6 of the EEA, and that his primary relief
was to be found in Chapter
II of that Act. Furthermore, the Applicant ought to have been
promoted into the position in question,
and that the failure to
appoint him was both procedurally and substantively unfair. He had
relied in part on the fact that he is
a historically disadvantaged
South African (HDSA) and was eminently suitable for the position, or
if not, the most suitable. It
was argued that his case was based on
discrimination on account of race, and he primarily relied upon
Chapter II of the EEA which
dealt with the prohibition of unfair
discrimination.
[8] It was further argued
that the Applicant had properly referred a dispute to the CCMA and a
certificate of outcome was issued
enabling him to refer the dispute
to this Court. It was conceded that as part of the factual background
which the Applicant had
pleaded and further elaborated upon in the
pre-trial minute, averments were made that there was non-compliance
with the Employment
Equity Plan (EEP). It was submitted however that
the main claim was that the Applicant was subjected to racial
discrimination,
and that this application did not call for an order
directing compliance with the EEP of the First Respondent. In this
regard,
it was argued that the facts of this case were different from
those in
Govender,
which the Respondents had relied upon in
that it was not the primary claim of the Applicant that the EEP was
not complied with.
Evaluation:
[9] The first issue that
needs to be dealt with is whether given the nature of the points
raised, the Respondent should not have
raised them by way of an
exception rather than by way of a jurisdictional point. Mr. Mosam on
behalf of the Respondents had submitted
that the choice was for the
Respondents to exercise, and that they were entitled to raise these
issues in the manner that they
deemed fit at any time prior to the
trial commencing. I am inclined to agree with Mr. Mosam. There is no
provision in either the
Rules for the Conduct of Proceedings in the
Labour Court, or in the Practice Manual that prescribes whether an
issue should be
raised as an exception or as a point
in limine
.
With exceptions, obviously the intention ultimately is to allow
the other party to amend its pleadings accordingly so that
its case
can be met. However, with points
in limine
, where they are
successful, the intention is to dispose of the matter completely. It
is therefore up to a party to decide how to
raise any particular
issue that may affect the jurisdiction of the Court. Obviously the
only considerations are whether these issues
have been raised
properly before the Court, whether the other party to the dispute was
afforded an opportunity to respond to them,
and ultimately, whether
they are sustainable or not.
[10] The parties were in
agreement that if the dispute before this Court related to Chapter II
of the EEA, the Court would have
the necessary jurisdiction to
determine it. Chapter II of the EEA deals with the prohibition of
unfair discrimination. In terms
of section 5, there is an obligation
on employers to eliminate unfair discrimination, and section 6
prohibits discrimination on
various grounds. More pertinent to this
case is section 10 which deals with disputes concerning that chapter,
and the dispute resolution
path to be followed in instances where
there is a dispute. In this regard, section 10 provides for disputes
to be referred to the
CCMA within six months after the act or
omission that allegedly constitutes unfair discrimination, and where
conciliation fails,
for the dispute to be referred to this Court for
adjudication.
[11] If the Applicant’s
dispute however relates to Chapter III as the Respondents have
contended, the Court would obviously
lack jurisdiction. Section 13
under Chapter III provides that designated employers must in order to
achieve employment equity,
implement affirmative measures for people
from designated groups in terms of the Act. Section 20 provides that
a designated employer
must prepare and implement an employment equity
plan which will achieve reasonable progress towards employment equity
in that employer’s
workforce.
[12] Section 34 under
Chapter V (Monitoring, Enforcement and Legal Proceedings) provides
for employees or trade union representative
to bring contraventions
of the EEA to the attention of
inter alia
, a Labour Inspector,
the Director-General or the Commission for Employment Equity. A
Labour Inspector having investigated the matter
under section 35 may
inter alia
, issue a compliance order to the employer under
section 37. If the employer fails to comply within a period specified
by the Labour
Inspector, or does not object to that order, the
Director-General may in terms of the provisions of section 37 (6),
apply to this
Court to make the compliance order an order of Court.
[13]
In support of its contention that the Court lacked jurisdiction by
virtue of the provisions of Chapter III of the EEA, the
Respondents
had also made reference to
Dudley
v City of Cape Town
[2]
wherein it was held that any interested party aggrieved by a
designated employer’s failure to comply with any of its
obligations
under Chapter III must take steps to have the enforcement
procedure provided for in Chapter V invoked, and that the interested
party cannot simply ignore that procedure and institute court
proceedings.
[14]
It is trite that jurisdiction is determined on the basis of
pleadings, and not on the substantive merits of the case
[3]
.
Where
the jurisdiction of the Court is disputed, Van der Westhuizen J in
Gcaba
v Minister of Safety and Security
[4]
stated the following;
“
In
the event of the Court’s jurisdiction being challenged at the
outset (in limine), the applicant’s pleadings are the
determining factor. They contain the legal basis of the claim under
which the applicant has chosen to involve the Court’s
competence….”
[15] In the light of the
above legal principles, the actual nature of the Applicant’s
claim must be gleaned from his pleading.
Mr. Lennox as already
indicated had conceded that as part of the factual background, and
further in the pre-trial minute,
the Applicant had made averments
that there was non-compliance with the Employment Equity Plan. In his
statement of case, the Applicant
had summarised his case as follows;
He
was never afforded and/or granted the position despite him being part
of the group of persons that are described as historically
disadvantaged South Africans (HDSA), and also despite him being
shortlisted, interviewed and being the most/best suitable available
applicant for the position. The Second Respondent on the other hand
was not interviewed, or if he was interviewed, he was not the
most/best suitable candidate, did not meet the requirements for the
position, and did not possess the required years of experience
and
other requirements. The Applicant alleged that there was favouritism
and the First Respondent had failed to follow due process
and in so
doing, discriminated against him and has suffered as a result. The
First Respondent had also failed to adhere and/or
abide by the proper
procedures in place to ensure that employment equity processes are
promoted, and had failed to act in terms
of its equity plan and/or
any equity plan. According to the Applicant, all of the above issues
fell under the various sections
of the Employment Equity Act (The
EEA).
[16] It was further
common cause that following his non-appointment to the position in
question, the Applicant had lodged a grievance
and alleged firstly,
that he was overlooked for the position, and secondly, that the First
Respondent had failed to comply with
its Employment Equity Policy and
Plan. Amongst other relevant issues the Applicant had raised in his
statement of claim was the
allegation that he was victimized since
exercising his rights in terms of the Labour Relations Act, and
further since the Second
Respondent was appointed to the position. He
had further contended that had he been considered for the position,
it would have
aided the First Respondent in fulfilling its EEPP
quotas and being more representative in its EEPP plan and outcomes.
In the Applicant’s
view, the First Respondent had a duty to
adopt, act and implement an Employment Equity Plan. These averments,
contentions and allegations
were repeated at length in the parties’
signed pre-trial minute. In regards to the legal issues that arose
from the facts
of his claim, the Applicant had submitted that the
matter had to be decided in terms of the provisions of sections 6,
10, 11, 13,
15, 20, and 50 the EEA.
[16] Having had regard to
the Applicant’s pleadings as summarised above, it is apparent
that they were drafted in such a manner
that they were
all-encompassing, and to cover each and every complaint the Applicant
had in respect of his non-appointment.
To this end, and
notwithstanding the manner with which the relief sought is drafted,
the difficulty always remains as to exactly
what it is that the Court
is required to determine amongst the myriad of issues raised. Moreso,
the dilemma for the Respondents
is always the uncertainty surrounding
the case it is required to meet.
[17] In order to
highlight these difficulties, the Applicant appears to be claiming
unfairness in relation to the failure to promote
or appoint him.
Secondly, he is aggrieved at the fact that the First Respondent
failed to comply with its EEP policies and plans,
and acknowledge the
fact that he was from a historically disadvantaged group. Thirdly, he
also claimed victimization for exercising
his rights in terms of the
Labour Relations Act. Fifthly, he had contended that his claim should
be decided in accordance with
several provisions of the EEA, which
provisions vacillates between the provisions of Chapter II and
those of Chapter III
of the EEA.
[18] On a full
consideration of the Applicant’s pleading, it cannot in my view
be said that any reference to the First Respondent’s
alleged
non-compliance with its Employment Equity Plan or policies in the
pleadings was merely made in passing or purely by way
of background.
Had such reference to non-compliance with employment equity plans or
policies been made once in the pleadings,
one would have been
inclined to agree that not much significance should be attached to
it. However, in this case, such reference
was made
ad nauseam.
Other than the repeated references to this allegation in the
pleadings, the Applicant had repeated the same, and almost verbatim,
in the parties’ pre-trial minute. In respect of the relief that
he sought, at paragraph 73.6 of the signed pre-trial minute,
the
Applicant sought a declaratory that the First Respondent had failed
to comply with the EEA and/or its EEPP. Furthermore, at
paragraph
73.8 of the pre-trial minute, the Applicant sought an order to direct
the First Applicant to comply with the EEA, in
particular Chapter III
of the EEA. Viewed as a whole, it cannot be said that the Applicant’s
case falls squarely within the
ambit of Chapter II of the EEA. In the
light of these repeated references to the First Respondent’
alleged non-compliance
with its EEPP, the Applicant cannot escape the
clutches of the provisions of Chapter III of the EEA, and the dispute
resolution
path that should have been followed is that as prescribed
in Chapter V of the EEA.
[19] It does not appear
that the Applicant had premised his case on anything other than the
failure to appoint him or the alleged
failure by the First Respondent
to comply with its employment equity plan or policy. The issue of
race discrimination is sparsely
referred to in the pleadings. At
paragraph 10 of the pleadings, he contended that by virtue of the
First Respondent’s failure
to follow due process he was
discriminated against. At paragraph 37, he repeated the allegation
that he was not appointed to the
position and gives possible reasons.
No reference however is made to race discrimination. Only on three
occasions does he make
any reference to race discrimination in the 13
submissions he made. In regards to the relief that he seeks, the fact
that he had
made reference to, or sought the failure of the First
Respondent to appoint him to the position to be declared as
discriminatory
does not in my view necessarily make his case one that
falls within the purview of Chapter II of the EEA. The type of relief
he
seeks has to be looked at in terms of what he had pleaded. In this
case, his pleadings fall squarely within the purview of Chapter
III.
[20] In the light of the
conclusions reached in respect of the first jurisdictional point
raised, it would be academic to deal with
the second point
in
limine
which was raised by the Respondents. However, for the sake
of completeness, it is important to reiterate that every employee has
a right not to be subjected to unfair labour practices as
envisaged in section 185 (b) of the LRA. Section 186 (2) defines
an
unfair labour practice as any conduct or omission that arises between
an employer and employee involving
inter alia
, unfair conduct
relating to promotion. When one has regards to the nature of the
Applicant’s pleadings, it is clear that
he is aggrieved by the
fact that the Second Respondent was appointed rather than him. Had he
been appointed to the position in
question, this would have led to a
promotion as that appointment would have been at a higher level.
[21] The Applicant had
advanced numerous reasons as to the reason he should have been
appointed including the fact that he was part
of HDSA, was better
qualified, most suitable, most experienced, and had met all or most
of the requirements for the position. In
regards to relief, the
Applicant sought
inter alia
, an order declaring the failure to
appoint him to the position as procedurally and substantively unfair;
declaring the failure
by the First Respondent to “
properly
consider him for the position, at least in terms of his experience,
adequately to be unfair and/or discriminatory”
; directing
the First Respondent to appoint him in the position; directing the
First respondent to comply with the EEA, in particular,
Chapter III
of the EEA; and directing the First Respondent to compensate him in
the amount of R500 000.00. On the whole, in view
of the conclusions
made above in respect of the allegations pertaining to
discrimination, it should also be concluded that given
the nature of
the complaints raised in regards to his non-appointment, the relief
that the Applicant seeks, and the general manner
and approach taken
in formulating the claim, it should be concluded that his case, other
than the conclusions already made in regards
to the provisions of
Chapter III of the EEA above, also bear the hallmarks of an alleged
unfair labour practice dispute as contemplated
in section 186 of the
LRA. To this end, the dispute should have remained at the CCMA,
having been properly referred to that forum.
Costs:
[22] It is trite that a
cost order is determined in accordance with the considerations of law
and fairness. The Respondents had
sought a cost on account of the
fact that the application before the Court was ill-considered. It was
however argued on behalf
of the Applicant that there was an on-going
employment relationship between the parties, and that the
consequences of such an order
would be dire for him. Whilst these
factors are taken into account, it should be borne in mind that
fairness applies to both parties.
In the light of the nature of the
claim, and the pleadings, the Applicant had clearly caused the
Respondents irritation. The Respondents
had to sift through those
pleadings in order to make sense of what the Applicant’s case
was all about. Throughout, from the
time that the application was
launched and up to a point where the parties had completed the
pre-trial minute, the Applicant had
persisted with his claim in the
manner that he had done. In doing so, it does not appear that his
on-going relationship with the
Respondents or a possible cost order
against him was even a consideration. To this end, it would be unfair
for the First Respondent
in particular, to be burdened with the costs
of having to defend a claim that was ill-advised and ill-considered.
In these circumstances,
the following order is made;
Order:
i.
The
preliminary points raised by the Respondents are upheld.
ii.
The
Court lacks the requisite jurisdiction to determine the Applicant’s
claim.
iii.
The
Applicant is ordered to pay the First Respondent’s costs of
suit.
_________________________
Tlhotlhalemaje, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicant:
Adv. MA Lennox
Instructed
by:
Goldberg Attorneys
For the
Respondent:
Adv. A Mosam
Instructed
by:
Edward Nathan Sonnenbergs
[1]
[2010]
1 BLLR 55
(LC) at para 48
[2]
[2008]
12 BLLR 1155
(LAC) at para 46
[3]
Chirwa
v Transnet Ltd & others
[2008] 2 BLLR 97
(CC)
[4]
2010
(1) SA 238
(CC) at 263 D-G