About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2016
>>
[2016] ZALCCT 6
|
|
Duma v Minister of Correctional Services and Others (C604/2012) [2016] ZALCCT 6; (2016) 37 ILJ 1135 (LC); [2016] 6 BLLR 601 (LC) (2 February 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Case
Number: C604/2012
In
the matter between:
ZAMEKA AGATHA
DUMA
Applicant
and
MINISTER OF
CORRECTIONAL SERVICES
First
Respondent
NATIONAL
COMMISSIONER, CORRECTIONAL SERVICES
Second
Respondent
REGIONAL
COMMISSIONER, CORRECTIONAL
SERVICES,
WESTERN CAPE Third
Respondent
Date
set down for trial: 20 November 2014; stated case received 14
September 2015 subsequent to directive of this court.
Delivered:
2 February 2016
Summary:
Unfair discrimination based on arbitrary ground of ‘geographical
location’;
JUDGMENT
RABKIN-NAICKER
J
[1]
This matter was filed at court as an opposed action but is before me
for decision in terms of a stated case in terms of an order
by
agreement dated 20 November 2011.
[2]
On 20 November 2009 the applicant (together with two other employees)
lodged an unfair labour practice dispute relating to promotion
at the
GPSSBC. The matter was conciliated and a certificate of
non-resolution issued on the 26 January 2010. The arbitration award
issued on the 31 May 2010 described the issue in dispute as being
“11. Whether the facts constitute an unfair labour practice
in
terms of section 186(2)(a) referring to promotion and if so, 12.
Whether the referral is late and the applicant needs to seek
condonation.”
[3]
The arbitrator found that the application did not fall with the ambit
of the section and stated that accordingly “the
GPSSBC has no
jurisdiction to consider the matter”. The award reads
“52.
The present application does not fall within the ambit of section
186(2)(a) of the Act and the application is dismissed.”
It
must be noted that no issues relating to alleged unfair
discrimination are dealt with in the said award. In other words there
is no indication that the Commissioner was addressed on or considered
whether the dispute was one involving unfair discrimination.
He found
that the facts as presented to him did not found an unfair labour
practice dispute.
[4]
An unsuccessful attempt was made to rescind this award under section
144 of the LRA. The applicant did not seek to review the
award in
this court.
[5]
Two years later, the applicant referred a dispute on the same facts
to the CCMA on 1 June 2012 along with a condonation application.
A
condonation ruling in applicant’s favour was issued on the 2
July 2012 under case number WECT 8847-12. This ruling was
also not
taken on review. The applicant launched her claim in this court on
the 18 August 2012. The background to this matter is
set out in
relevant part below, based on the stated case. I deal first with one
of the points in limine raised by the respondents
i.e. that Duma’s
claim has prescribed.
[6]
On the 8 September 2000 Duma was appointed as a custodial officer at
salary level 3 at the Department. She subsequently completed
her
B.Iuris degree and therefore qualified to be appointed as a Legal
Administration Officer. She was appointed to the post of
Senior
Correctional Officer (SCO): Manager: Legal Services: Voorberg
Management Area: Western Cape, advertised and filled as SCO
post
(level 8), with effect from 1 August 2006.
[7]
On 7 May 2007, a notice was circulated advertising vacancies for,
inter alia, positions of SCO: Legal Services, being equivalent
to the
post held by Duma. An amendment was later issued that the advertised
posts should be changed to Assistant Director (ASD)
posts as opposed
to SCO posts.
[8]
On the 7
th
February 2008 an agreement was reached at the
General Public Service Sectoral Bargaining Council to retrospectively
implement PSCBC
Resolution 1 of 2007 in respect of the development
and application of the Occupational Specific Dispensation (OSD) as of
1 July
2007.
[9]
With regard to the alteration of pre-OSD salary levels, Duma
contended that the SCO salary level 8 position at Voorberg should
have been determined at ASD salary level 9 prior to the
implementation of the OSD and as a consequence: “Duma should
have
been appointed on a salary level 9 and translated to the OSD on
such salary level.”
[10]
The respondents submit that the applicant became aware of the alleged
discrimination on May 7 2007 when the notice of the Legal
Administration Officer Positions on salary level 9 in KwaZulu Natal
were circulated. Her claim, they submit, became prescribed
in May
2010. The dispute before this court was only referred to the CCMA
some 2 years later, in June 2012.
[11]
If it is accepted that the applicant’s claim to remuneration on
the level of an ASD was a ‘debt’ due in terms
of the
Prescription Act, and that it was due in May 7 2007, such a claim
would have prescribed three years later. In
Umgeni
Water & others v Mshengu
[1]
the SCA stated as follows:
“
[5]
Section 10 of the Prescription Act 68 of 1969 (the Act), provides for
the extinction of a debt after the lapse of periods determined
in s
11. The period of prescription applicable to the plaintiff's claim is
that provided for in s 11(d) of the Act, namely three
years.
According s 12(1) of the Act, prescription shall commence to run 'as
soon as the debt is due'. The words 'debt is due' must
be given their
ordinary meaning. In its ordinary meaning a debt is due
when it is immediately claimable by the creditor
and, as its
correlative, it is immediately payable by the debtor. Stated another
way, the debt must be one in respect of which
the debtor is under an
obligation to pay immediately.
[6]
A debt can only be said to be claimable immediately if a creditor has
the right to institute an action for its recovery. In
order to be
able to institute an action for the recovery of a debt a creditor
must have a complete cause of action in respect of
it. The expression
'cause of action' has been held to mean: 'every fact which it would
be necessary for the plaintiff to prove,
in order to support his
right to judgment of the Court. It does not comprise every piece of
evidence which is necessary to prove
each fact, but every fact which
is necessary to be proved'; or slightly differently stated 'the
entire set of facts which give
rise to an enforceable claim and
includes every fact which is material to be proved to entitle a
plaintiff to succeed in his claim.
It includes all that a plaintiff
must set out in his declaration in order to disclose a cause of
action. Such cause of action does
not "arise" or "accrue"
until the occurrence of the last of such facts and consequently the
last of such facts
is sometimes loosely spoken of as the cause of
action'.”
[11]
The applicant submits that discrimination claims are not ‘debts’
for the purposes of the
Prescription Act based
on the proposition
that the right to equality is fundamental to our constitutional
democracy and that “Proper respect
for the centrality of the
right to equality and sufficient protection of it can only be
realised if it is found that claims bases
on infringements of the
right to equality are not debts for the purposes of the
Prescription
Act and
do not prescribe.” In addition, the argument is made
that the Employment Equity Act is not compatible with the
Prescription Act relying
on labour court jurisprudence in respect of
the LRA. These labour court decisions relied upon, were not
upheld on appeal
in the matter of
Sizwe
Myathaza and Johannesburg Metropolitain Bus Service (Soc) Limited t/a
Metrobus; Daniel Mazibuko and Concor Plant and Cellucity(Pty)
Ltd and
CWU obo Peters
[2]
in
which the LAC found that
an
arbitration award under the LRA is not a judgment debt under the
Prescription Act but
a simple debt subject to a three-year
prescriptive period.
[12]
The LAC stated the following in that judgment
[29]
In his work, “
Extinctive
Prescription
”,
M Loubser,
[3]
in my view
correctly, states that:
‘
The
main object of extinctive prescription is to create legal certainty
and finality in the relationship between the parties after
the lapse
of a period of time, and the emphasis is on the protection of the
defendant against a stale claim that has existed for
such a long time
that it becomes unfair to require the defendant to defend himself
against it. The emphasis is on the protection
of the defendant
because the claimant is responsible for enforcing his right timeously
and must suffer the consequences of failure
in this regard.
Essentially extinctive prescription embodies a desire for finality
and serves the common good by creating
legal certainty in individual
cases.’
[4]
[Footnotes omitted]
[30]
In
Mohlomi
v Minister of Defence,
[5]
Justice Didcott stated the reason for time limits in litigation: He
said:
‘
Rules
that limit the time during which litigation may be launched are
common in our legal system as well as many others. Inordinate
delays
in litigating damage the interests of justice. They protract the
disputes over the rights and obligations sought to be enforced,
prolonging the uncertainty of all concerned about their affairs. Nor,
in the end is it always possible to adjudicate satisfactorily
on
cases that have gone stale. By then witnesses may no longer be
available to testify. The memories of ones whose testimony
can
still be obtained may have faded and become unreliable. Documentary
evidence may have disappeared. Such rules prevent
procrastination and those harmful consequences of it. They thus serve
a purpose to which no exception in principle can cogently
be
taken.’
[6]
(emphasis added)
[31]
In
Uitenhage
Municipality v Malloy,
[7]
Mahomed CJ said the following about the purposes of the
Prescription
Act:
>
‘
One
of the main purposes of the
Prescription Act is
to protect a debtor
from old claims against which it cannot effectively defend itself
because of loss of records or witnesses caused
by the lapse of time.
If creditors are allowed by their deliberate or negligent acts to
delay the pursuit of their claims without
incurring the consequences
of prescription that purpose would be subverted.’
[8]
[32]
In
Road Accident Fund and Another v Mdeyide,
Justice Van der
Westhuizen stated with regard to the purpose and necessity of time
limits, the following:
‘
This
Court has repeatedly emphasised the vital role time limits play in
bringing certainty and stability to social and legal affairs
and
maintaining the quality of adjudication. Without prescription
periods, legal disputes would have the potential to be
drawn out for
indefinite periods of time, bringing about prolonged uncertainty to
the parties to the dispute. The quality of adjudication
by courts is
likely to suffer as time passes, because evidence may have become
lost, witnesses may no longer be available to testify,
or their
recollection of events may be faded. The quality of adjudication is
central to the rule of law.’
[9]
[Footnote
omitted]
[33]
A common thread to be found in the above quotations is that
prescription,
per se
, is justified and necessary. It is clear
from
section 16(1)
of the
Prescription Act that
every debt,
contemplated in that section, must in our law prescribe within a
certain period. If the Act of Parliament under which
the debt resides
does not prescribe that period, then the
Prescription Act is
applicable and it prescribes within that period. Prescription is
based on considerations of fairness and equity and it is therefore
not correct to argue that prescription is inconsistent with such
considerations. Those hallowed concepts do not only apply to one
party, but apply to all parties including employers and employees.”
[13]
Given the reasoning of the LAC and its rejection of the approach that
the
Prescription Act is
not compatible with the LRA, I can find no
basis in the arguments submitted on behalf of the applicant based on
the submission
that the reasoning applied in the Labour Court’s
judgment in
Cellucity
applies
mutatis mutandi
with
equal force to the current matter.
[14]
In the alternative, the applicant submits that each failure to pay
what was due was a separate act of discrimination and the
running of
prescription was interrupted on 20 November 2009, alternatively 1
June 2012. Reliance is placed on the judgment in
SA Broadcasting
Corporation Ltd v CCMA & Others (2010) 31 ILJ 592 (LAC)
in
particular the following dictum:
“
While
an unfair labour practice/unfair discrimination may consist of a
single act it may also be continuous, continuing or repetitive.
For
example where an employer selects an employee on the basis of race to
be awarded a once-off bonus this could possibly constitute
a single
act of unfair labour practice or unfair discrimination because like a
dismissal the unfair labour practice commences and
ends at a given
time. But, where an employer decides to pay its employees who are
similarly qualified with similar experience performing
similar duties
different wages based on race or any other arbitrary grounds then
notwithstanding the fact that the employer implemented
the
differential on a particular date, the discrimination is continual
and repetitive. The discrimination in the latter case has
no end and
is therefore ongoing and will only terminate when the employer stops
implementing the different wages. Each time the
employer pays one of
its employees more than the other he is evincing continued
discrimination.
[28]
Hence in the present matter the date of dispute does not have to
coincide with the date upon which the unfair labour practice/unfair
discrimination commenced because it is not a single act of
discrimination but one which is repeated monthly. In the
circumstances
the dispute being labelled as ongoing was an accurate
description of the 'dispute date' and the decision arrived at by the
commissioner
that there was no need for the respondent to seek
condonation was correct.”
[15]
The following is contained in the stated case reflecting applicant’s
argument in this respect:
“
That
there was no single ‘debt’ for the purpose of the
Prescription Act. The
discrimination against the Applicant (in the
form of the failure to pay her what she claims ought to have been
paid) was and is
ongoing. The running of prescription was interrupted
when the Applicant referred a dispute to the GPSSBC on 20 November
2009. This
entails that only acts of discrimination prior to November
2006 (i.e. August, September and October 2006) would have prescribed.
If
the referral to the GPSSBC did not have the effect of interrupting
prescription, at the very least, from 8 August 2009 (three
years
before the Applicant filed her statement of claim in this court which
interrupted the running of prescription), the Applicant’s
claims in relation to the Respondent’s unfair discrimination in
failing to pay the Applicant the salary she alleges was due
to her
have not prescribed.”
[16]
Given that the unfair labour practice referral to the GPSSBC was not
entertained as an unfair discrimination dispute, it is
not necessary
to consider whether such a referral should be considered as
interrupting prescription. Based on the
SA Broadcasting
case
referred to above, I however consider that the claim has not
prescribed in that the referral to this court interrupted
prescription.
Thus a claim covering a three year period before
18 August 2012 falls to be adjudicated.
[17]
A second point in limine was raised in the stated case i.e. that the
Minister of Public Service an Administration ought to
have been
joined as a respondent party. This point was not pursued by the
Respondents in heads of argument dated 30 January 2015.
[18]
The stated case records that applicant claims she was discriminated
against in the ground of her ‘geographical
location’.
The following agreed facts read:
“
16.
With regard to the alteration of the pre-OSD salary levels and their
subsequent translation:
16.1
The Manager: Legal Services position in, inter alia, Limpopo,
Mpumalanga, Norrth-West and
KwaZulu-Natal were at ASD level 9.
Further in terms of the Department’s organisational structure,
the job descriptions and
title of Manager:Legal Services should be at
least ASD level 9.
Therefore, regardless
of the construction and interpretation of the OSD, there are
disparities among various employees who are performing
work with the
same job description at different rates of remuneration.
As such, Duma contended that the SCO salary level 8 position at
Voorberg should have been determined at ASD salary level 9 prior
to
the implementation of the OSD and as a consequence should have been
appointed on a salary level 9 and translated to the OSD
on such
salary level. Duma brought this disparity to the Department’s
attention but no action has been taken to correct it.”
(my
emphasis)
[19]
Duma relies on section 6(1) of the Employment Equity Act
[10]
and on an unspecified unspecified ground therein. Section 6(1)
provided that:
“
(1)
No person may unfairly discriminate, directly or indirectly, against
an employee, ground 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 or birth.” (my emphasis)
[20]
An applicant bringing a claim in terms of this provision must prove:
20.1
That there was differentiation which amounted to discrimination. If
it is on a ground specified
in section 6(1), the discrimination is
established. If it is not on a specified ground then whether or
not there has been
discrimination will depend on whether,
objectively, the grounds are based on attributes and characteristics
which have the ability
to impair the fundamental human dignity of
people in a comparably serious manner;
20.2
That the differentiation amounting to discrimination is unfair
discrimination. If the discrimination
is on a specified ground,
unfairness is presumed. If on an unspecified ground, unfairness will
have to be established by the applicant.
The EEA makes it clear that
it is not unfair discrimination for an employer to treat an employee
differently on a specified ground,
or an analogous ground, if that is
based on affirmative action or an inherent requirement of the
job.
[11]
[21]
The basis for the differentiation at issue, i.e. the fact that Duma
is employed by a national organisation in one province
and not
another, appears on the stated case before me to be entirely
arbitrary. As submitted by Mr Bosch on her behalf, arbitrariness
has
long been recognised as one of the hallmarks of discrimination.
[12]
The amended EEA reflects this by prohibiting discrimination in
section 6(1) on any “arbitrary ground”. I agree that
the
ground of geographical location as a basis to prejudice an employee
(by paying them less for the same work as another employee
in a
different location) has the ability to impair the dignity of that
person in a manner comparable to the listed grounds and
amounts to
discrimination. My view is fortified by the fact that the amended
EEA, although not applicable to this case, provides
in section 6(4)
that:
“
(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.”
[22]
Given that we are dealing with the EEA before the 2014 amendments, it
is necessary for the court to consider whether Duma’s
claim
based on an unspecified ground of discrimination amounts to unfair
discrimination. In
SA
Airways (Pty) Ltd v Jansen van Vuuren & Another
[13]
the LAC considered the determination of fairness under the EEA
(albeit in a matter dealing with a listed ground) and stated:
“
[44]
What is clear is that in considering the issue of fairness under the
EEA, the position and interests of the employee and employer
must be
considered and balanced, and that the objectives of the EEA must be
the guiding light in applying a value judgment to established
facts
and circumstances. The determining factor, however, is the impact of
the discrimination on the victim. This is consistent
with the
approach in Hoffmann…..
[46]……An
enquiry into fairness contemplated in the EEA will necessarily
involve more than a consideration of the moral
issues and the impact
of the discriminatory action on the complainant. It will also include
a consideration and require a balancing
of the defences raised by the
employer for the discrimination as well as issues such as
proportionality of the measure, the nature
of the complainant's right
that he alleges has been infringed, the nature and purpose of the
discriminatory measure, and the relation
between the measure and its
purpose.”
[23]
In this matter, there appears to be little more than a bald denial by
the respondents that unfair discrimination has taken
place. It is
recorded by the respondents in the stated case that: “The
Respondents deny that the manner in which Duma was
treated was
motivated by discrimination on arbitrary grounds i.e. it denies that
it discriminated against Duma.” Nor is the
issue of the purpose
of the differentiation between the Western Cape posts and the posts
in other provinces dealt with. It would
appear that the respondents,
in their defence of the matter, are more concerned with the remedy
the applicant seeks and whether
it is competent for the court to
grant that relief.
[24]
On the other hand, the submissions on Duma’s behalf that it
must be accepted that the discrimination against her were
unfair are
compelling. These include that:
24.1
She was treated arbitrarily on a ground that impacted on her dignity;
24.2
The respondents have put up nothing to show that it was necessary to
differentiate between
Managers:Legal Services in the Western Cape
differently from their counterparts in other provinces. There is no
apparent purpose
for the distinction in treatment;
24.3
The applicant has been prejudiced financially over a number of years
given that the effect
of the discrimination was that she was not
remunerated at the correct levels;
24.4
Any distinction between employees based solely on the area of the
country in which they
work is, given our history, anathema to the
society envisaged by the Constitution;
24.5
The EEA is premised on amongst others giving effect to the right to
equality and the eradication
of discrimination.
[25]
I therefore accept that Duma has met the onus of proving that the
discrimination was unfair. She seeks an order praying for
“retrospective correction of her post” i.e. that she
ought to have been placed at level 10, alternatively level 9,
and
translated through the various levels and grades accordingly. Given
that I have found that her claim can only be considered
to have
arisen in 2009, there is a limit on the retrospective effect of any
order that this court may make. There is nothing before
me that
establishes that level 10 should have been the level at which she
should have been employed prior to translation in terms
of the OSD
process.
[25]
The EEA sets out the remedies of the Labour Court in cases where it
finds that unfair discrimination has been established in
section 50,
as follows:
“
(2)
If the Labour Court decides that an employee has been unfairly
discriminated against, the Court may make any appropriate order
that
is just and equitable in the circumstances,
including
-
(a)
payment of compensation by the employer to that employee;
(b)
payment of damages by the employer to that employee;
(c)
an order directing the employer to take steps to prevent the same
unfair
discrimination or a similar practice occurring in the future
in respect of other employees;
(d)
…….;
(e)
……..;and
(f)
the publication of the Court's order.
(3)
The Labour Court, in making any order, may take into account any
delay on the part of the party who seeks relief in processing
a
dispute in terms of this Act…..”
[26]
The court must therefore be guided by the principles of justice and
equity in the exercise of its discretion as to remedy.
The list of
possible remedies in section 50 (2) is not a closed list. I
have not been provided with any computation regarding
remuneration by
the parties. My order will therefore not be specific as to the amount
of compensation to be paid. If the parties
wish to approach the court
as to specific quantum, if such cannot be agreed, they may do so. In
all the circumstances I make the
following order:
Order
1.
The applicant
has suffered unfair discrimination.
2.
The respondents are ordered to pay Zameka Agatha Duma the following
compensation:
“
An
amount equivalent to the difference between the remuneration she
received from August 2009 to the date of this order, and the
remuneration she would have received during that period had she been
graded on level 9 as of the date of her translation
in terms of
the OSD.”
3.
The respondents are ordered within one calendar month after the date
of this of this order to adjust the monthly remuneration paid to
Zameka Agatha Duma to align with the current remuneration entitlement
of an employee with her job description who was in a level 9 post,
prior to translation in terms of the OSD.
4.
The respondents are to pay the costs jointly and severably.
________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicant:
Adv. Craig Bosch instructed by Bradley Conradie Halton Cheadle
First
Respondent: Adv. PC Pio instructed by the state attorney
[1]
(2010)
31 ILJ 88 (SCA)
[2]
Unreported
judgment delivered on 6 November 2015 under case numbers JA122/14;
JA38/14 and CA 3/14.
[3]
M
Loubser
Extinctive
Prescription
(Juta & Co 1996).
[4]
At
33.
[5]
1997
(1) SA 124 (CC).
[6]
At
para 11.
[7]
(1998)
19 ILJ 757 (SCA).
[8]
At
13.
[9]
At
para 8. See also
Brummer
v Minister for Social Development and Others
2009 (6) 323 (CC) at para 51; and
POPCRU
obo Sifuba
at
paras 28-30 (inclusive).
[10]
Prior
to the proclamation of the Employment Equity Amendment Act 47 of
2013.
[11]
Harksen
vLane N.O.
[1997] ZACC 12
;
1998 (1) SA 300
(CC) at para 53; NUMSA & Others v
Gabriels (Pty) Ltd (2002) 23 IJ 2088 (LC) at 209E-I; Mangena &
Others v Fila SA (Pty)
Ltd & Others (2010) 31 ILJ 662 (LC) at
668B-C
[12]
Prisloo
v Van der Linde and Another 1997at paragraph.
[13]
(2014)
35 ILJ 2774 (LAC)