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[2017] ZALCJHB 183
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South African Municipal Workers' Union and Others v Pikitup Johannesburg (SOC) Ltd (JS744/16) [2017] ZALCJHB 183 (7 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not Reportable
Case
no: JS 744/16
SOUTH AFRICAN MUNICIPAL WORKERS’
UNION
MASEKELA NAKENG
MATSOBANE KGOMO
ELSIE NGOVENI
SINDISWA
GUMBI
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth
Applicant
And
PIKITUP
JOHANNESURG (SOC) LTD
Respondent
Heard
on: 3 February 2017
Delivered:
7 February 2017
JUDGMENT
VAN NIEKERK J
[1]
This
is an applicant to strike out, alternatively, to dismiss a statement
of claim filed by the respondents in the present application.
For
convenience, I refer to the parties as they are cited in the
referral.
[2]
In
the statement of claim, the individual applicants allege that they
have been the subject of unfair discrimination by the respondent.
The
nature of the claim is one for equal pay for similar or work of equal
value, and the nature of the discrimination reached is
that based on
an arbitrary ground. The arbitrator ground is not identified, nor do
the individual applicants assert any basis on
which the arbitrary
ground on which they rely shares any common characteristics with the
specific grounds listed in s 6 (1) of
the Employment Equity Act.
[3]
The
statement of claim was filed on 5 September 2016. The respondent
delivered a notice of exception on 21 September 2016 and afforded
the
applicants, as it was required to do, 10 days within which to remove
the cause of complaint. Having received no response from
the
applicants, on 11 October 2016, the respondent filed the exception to
the statement of claim. On 26 October 2016, days before
the
application was set down for hearing, the applicants delivered a
notice of intention to amend the statement of case. On the
same date,
the respondent objected to that amendment on the grounds that the
statement of case remained excipiable. On 28 October
2016, this court
made an order, by consent, that the exception be upheld and that the
applicants be granted leave to amend their
statement of claim within
10 days. The order provides further that in the event that the
applicants fail to amend their statement
of claim, the referral shall
be considered to be dismissed with costs.
[4]
On 9
November 2016, the applicants delivered a notice of intention to
amend, the content of which was identical to that of the first
amendment filed prior to the hearing. On 9 November 2016 the
respondent objected to the notice of intention to amend on the basis
that it did not remove the defect of which it had complained, and
asserted that the statement of claim remained excipiable. The
applicants have taken no further steps since then to file any
application for leave to amend, or to address the defect of which
the
respondent complaints. On 25 November 2016, the respondent filed the
present application.
[5]
In
its original form, the statement of case, as I have indicated, seeks
to refer an equal pay claim for adjudication. Paragraph
26 of the
statement of case states the following:
The
difference in remuneration and increments paid by the respondent to
the applicants and Ms Sebata constitutes 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 an arbitrary ground in
that there is no justifiable reason for the
difference.
[5] The statement of claim alleges
that respondent’s conduct amounts to an act of unfair
discrimination. The statement does
not identify the arbitrary ground
that is alleged, nor is there any assertion to the effect that the
arbitrator ground identified
by the applicants shares any
characteristics with any specified ground listed in section 6 (1).
The amendment to paragraph 26 seeks
to add the following words to the
end of the existing paragraph 26:
…
in
the remuneration and increments paid to Mrs Sebata who was employed
by the respondent subsequent to the employment of the second
to fifth
applicant and without better qualification or skills than the second
to fifth applicant, thereby displaying an unjustified
bias by the
respondent towards Ms Sebata.
As
I have indicated, the second amendment delivered on 8 November 2016
is cast in identical terms. On 11 2016, the applicant filed
a notice
of objection to the notice of intention to amend. On 25 November
2016, the present application to strike out was filed.
[6] The relevant legal principles are
clear – a mere differentiation does not necessarily constitute
an act of discrimination.
Discrimination occurs when the
differentiation has as its basis one of the specified listed grounds
referred to in s6, all an unspecified
or analogies ground, or an
arbitrary ground, referred to in the section. The pleading in a claim
such as the present and must necessarily
establish the
differentiation and the basis on which the claim is made, in other
words, a link between the differentiation and
a specified an
unspecified ground. Where reliance is placed on the latter, it is not
sufficient to contend that the policy or practice
complained of is
arbitrary. The case must necessarily be made is analogous to a
specified ground and based upon or shares a common
trend with a
specified ground and in particular, that it exhibits attributes or
characteristics which have the potential to impair
the fundamental
dignity of the applicants as human beings (see
Ntai v South
African Breweries Ltd
[2001] 2 BLLR 186
(LC). See also
Mangena
v Fila South Africa (Pty) Ltd
[2009] 12 BLLR 1224
(LC)).
[7] In other words, a litigant
claiming unfair discrimination on an unidentified, arbitrary ground
must clearly identify the ground
relied upon and secondly, shares
characteristics with those specified grounds listed in s 6 (1). The
applicants have done neither
in the statement of case in the terms it
was filed. They did not identify the arbiter ground on which they
rely, let alone that
this ground shares characteristics with the
specified grounds. Nor does the proposed amendment address the
objection raised by
the respondent. The amendment does not identify
the ground on which the alleged discrimination is funded, nor does it
do any more
than contained that the respondent has displayed and
‘unjustified bias’. This does no more than describe
respondent’s
conduct; it does not establish or sit out the
ground on which the conduct is allegedly based. The specified grounds
listed in s
6 all relate to aspects of the complainant in a
discrimination suit, they do not relate to the conduct of the party
leached to
be engaging in discrimination. Even if one were to accept
that unjustified bias amounts to a ground of discrimination, the
respondents
fail to suggest how this is akin to any of the specified
grounds.
[8] None of the above principles all
conclusions were seriously disputed by the applicant’s
representative. The applicants
claim, in essence, is that the
respondent is not entitled to have the statement of claim struck out
or dismissed at this stage.
[9] The Rules of this court to do not
make any specific reference to the circumstances in which a claim may
be dismissed or a statement
of case the subject of a motion to strike
out. This Court has followed the practice established by the Uniform
Rules, in terms
of which a party is required to file an application
for leave to amend where a notice of amendment is the subject of an
objection.
[10]
It would seem to me that the equitable order in the circumstances,
rather than close the door the court to the applicants
at this
point, is to require the applicants, in the face of an objection to
the notice of intention to amend filed on 8 November
2016, to file an
application for leave to amend the statement of case. I appreciate
that there may be a significant degree of overlap
between the issues
raised in the present application and those raised in any application
to amend. However, the nature of the proceedings
is different and the
relevant factors to which the court would necessarily have to give
consideration are different. Finally, in
relation to costs, it seems
to me for the purposes of the discretion afforded the court in terms
of s 162 that the cost of the
present application or to be reserved.
For the above reasons, make the
following order:
1.
The
respondents in the application to strike out a granted leave to file
an application to amend their statement of case.
2.
The
application to amend must be filed within 14 calendar days of the
date of this order, failing which the applicant is granted
leave to
re-enrol the application to strike out/dismiss on the same papers,
supplemented as necessary.
3.
The
costs of the application to strike out on reserved
_____________________
Van Niekerk J
Judge
of the Labour Court
APPEARANCES
APPLICANTS:
Adv E Masombuka, Instructed by MGM Attorneys
RESPONDENT:
Adv C Orr, instructed by Bowman Gilfillan Inc.