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[2017] ZALCJHB 112
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Biggar v City of Johannesburg (Emergency Management Services) (JS232/09) [2017] ZALCJHB 112 (31 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JS232/09
In the matter between:
VICTOR
BIGGAR
Applicant
and
CITY OF JOHANNESBURG
(EMERGENCY
MANAGEMENT SERVICES)
Respondent
Heard:
18 November 2015
Delivered:
31 March 2017
JUDGMENT: APPLICATION
FOR LEAVE TO APPEAL
Nkutha-Nkontwana
AJ
Introduction
[1]
The respondent
seeks
leave to appeal against
the whole judgment I handed down on 13 December 2016. In that
judgment, I found that the respondent unfairly
discriminated against
the applicant. I accordingly ordered the respondent to pay the
applicant an amount equivalent to 12 months
and the costs of suit.
[2]
The application is
opposed by the applicant who in turn sought indulgence for the later
filing of his written submissions. The condonation
application is not
opposed and I note that there is no prejudice to be suffered by the
respondent as a result of the delay. I am
also satisfied with the
explanation furnished for the delay which I find to be detailed and
reasonable. As such,
I
do not deem it necessary to consider the prospects of success.
In these circumstances,
condonation is granted.
Grounds
of leave to
appeal
[3]
There are several
grounds of appeal to the Labour Appeal Court upon which the
application is hinged and I do not intend repeating
them in this
judgment. The whole application is, however, encapsulated by
paragraph 68 of the respondent’s written submissions
which
states that:
“
The
interests of justice have not been served by the manner in which the
court approached the evidence and applied the standard
of proof.
This raises important legal questions…”
Test applicable in an
application for leave to appeal
[4]
In
National
Union of Metalworkers of South Africa and Others v Columbus
Stainless,
[1]
Van
Niekerk J contextualised the test applicable in an application of
this nature
and
stated the following:
“
[2]
The test to be applied is that referred to in
s 17
of the
Superior
Courts Act, 10 of 2013
.
Section 17(1)
provides:
Leve to appeal may only be granted
where judge or judges concerned are of the opinion that –
(a)(i)
the appeal would have reasonable prospect of success, or
(ii)
there is some compelling reason why the
appeal should be heard, including conflicting judgements on the
matter under consideration;
(b)
The decision sought on the appeal does not fall within the
ambit
of
section 16(2)(a)
; and
(c)
Where the decision sought to be appealed
does not dispose of all the issues in the case, the appeal would lead
to a just and prompt
resolution of the real issues between the
parties.
[3] The traditional formulation of the
test that is applicable in an application such as the present
requires the court to determine
whether there is a reasonable
prospect that another court may come to a different conclusion to
that reached in the judgement that
is sought to be taken on appeal.
The use of the word ‘would’ in
s17(1)(a)(i)
is indicative
of a raining of the threshold since previously, all that was required
to demonstrate that there was a reasonable
prospect that another
court
might
come to a different conclusion (see
Daantiie
Community and Others v Crocodile Valley Citrus Company (Pty) Ltd and
another
(75/2008)
[2015] ZALCC 7
(28 July 2015). Further, this is
not a test to be applied lightly – the Labour Appeal Court has
recently has an accession
to observe that this court ought to be
cautious when leave to appeal is granted…as should the Labour
Appeal Court when petitions
are granted. The statutory imperative of
expeditious resolution of labour disputes necessarily requires that
appeals be limited
to those matters in which there is a reasonable
prospect that the factual matrix could receive a different treatment
or where that
a is some legitimate dispute on the law (See the
judgement by Davis JA in
Martin & East (Pty) Ltd v NUM
(2014) 35 ILJ 2399 9LAC, and also
Kruger v S
2014
(1) SACR 369
(SCA) and the ruling by Steenkamp J in
Oasys Innovations (Pty) ltd
v Henninh & another
(C 536/15, 6 November 2015).”
[5]
I fully concur with Van
Niekerk J.
Analysis
[6]
Since the incidents of
discrimination complained of by the applicant took place prior to 1
August 2014, the date in which
the amendments to section 11 of
the Employment Equity Act (“EEA”) came into effect,
the issue of the onus was
determined in terms of the pre-amended
Section 11 of the EEA which provides that:
“
Whenever
unfair discrimination is alleged in terms of this Act, the employer
against whom the allegation is made must establish
that it is fair.”
[7]
In
IMATU
v City of Cape Town,
[2]
Murphy AJ, as was then, expansively dealt with the tenets relating to
unfair discrimination on the ground of disability. He then
emphatically adopted the following test as laid down in
Harksen
v Lane NO:
[3]
“
The
first enquiry is whether the provision differentiates between people
or categories of people. If so, does the differentiation
bear a
rational connection to a legitimate governmental purpose? If it does
not, then there is a violation of the guarantee of
equality. Even if
it does bear a rational connection, it might nevertheless amount to
discrimination. The second leg of the enquiry
asks whether the
differentiation amounts to unfair discrimination. This requires a
two-staged analysis. Firstly, does the differentiation
amount to
“discrimination”? If it is on a specified ground, then
discrimination will have been established. If it is
not on a
specified ground, then whether or not there was discrimination would
depend upon whether, objectively, the ground was
based on attributes
and characteristics which had the potential to impair the fundamental
human dignity of persons as human beings
or to affect them adversely
in a comparably serious manner. Secondly, if the differentiation
amounted to “discrimination”,
did it amount to “unfair
discrimination”? If it is found to have been on a specified
ground, unfairness will be presumed
under the Bill of Rights by
virtue of the provisions of section 9(5) of the Constitution, which
transfers the onus to prove unfairness
to the complainant who alleges
discrimination on analogous grounds.
As
I read section 11 of the EEA, no similar transfer of onus arises
under the EEA. In other words, whether the ground is specified
or not
the onus remains on the respondent throughout to prove fairness once
discrimination is shown
.”
(Emphasis added)
[8]
Turning to the matter
at hand, the applicant
adduced
sufficient evidence to back up his claim
that
he had indeed been a victim of racial harassment perpetrated by his
white colleagues. He also managed to show that the respondent
was
aware of the racial abuse suffered by him and his family but failed
to act decisively and reasonably to eradicate same.
[9]
The respondent, on the
other hand, closed its case without leading any evidence despite the
fact that it had an evidentiary duty
to rebut the applicant’s
prima facie
evidence of discrimination and the onus to prove the fairness of the
discrimination.
[10]
I agree with the
applicant’s attorney’s submission that since the
applicant’s version was unchallenged, it had
to stand. The
respondent has always been legally represented and as such ought to
have been better advised of its burden of proof
and consequences of
failure to lead evidence.
[11]
Having considered all
the grounds of leave to appeal, I am not persuaded that the applicant
has made out a case that another court
might reasonably arrive at a
decision different to the one reached by this court.
[12]
In the premises, the
application for leave to appeal stands to be dismissed.
Order
[13]
The
application for leave to appeal is accordingly dismissed with costs.
_____________________
Nkutha-Nkontwana
AJ
Judge
of the Labour Court of South Africa
[1]
JS 529/14,
16 May 2016, a ruling in an application for leave to appeal the
court’s reported judgement cited as
National
Union of Metalworkers of South Africa and Others v Columbus
Stainless (JS529/14)
[2016] ZALCJHB 344 (30 March 2016).
[2]
[2005] 11 BLLR 1084 (LC).
[3]
1998 (1)
(SA) 300 (CC) paras 78 - 81.