Sethole and Others v Dr Kenneth Kaunda District Municipality (JS576/13) [2017] ZALCJHB 484; [2018] 1 BLLR 74 (LC) (21 September 2017)

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[2017] ZALCJHB 484
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Sethole and Others v Dr Kenneth Kaunda District Municipality (JS576/13) [2017] ZALCJHB 484; [2018] 1 BLLR 74 (LC) (21 September 2017)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JS 576 / 13
In
the matter between:
D
M SETHOLE AND 18 OTHERS

Applicants
and
DR
KENNETH KAUNDA DISTRICT
MUNICIPALITY

Respondent
Heard
:
11 and 12 May,
26
and 27 June 2017
Delivered
:
21 September 2017
Summary:
Interpretation of statute – amendment to EEA –
retrospectivity considered – EEA
does not have retrospective
operation
Discrimination
– equal pay dispute – alleged discrimination on unlisted
ground – principles considered and discussed
Discrimination
– differentiation – mere differentiation does not
constitute discrimination – what constitutes
impermissible
differentiation considered – meaning of arbitrary ground
considered – impermissible arbitrary differentiation
not shown
to exist
Discrimination
– equal pay dispute – principles considered – what
must be shown to establish discrimination in
equal pay dispute
discussed
Practice
and procedure – bringing of a case of discrimination based on
unlisted ground – crucial to properly plead and
set out case of
discrimination in pleadings – applicants failing to plead
proper case
Onus
– burden is on complainant replying on an unlisted ground to
establish the existence of discrimination – applicants
failing
to discharge such onus even on their own pleaded case and evidence
presented
Absolution
from the instance – principles stated – applicants failed
to make out a case of impermissible differentiation
or discrimination
on their own version as it stands – absolution from the
instance granted
Costs
– applicants persisting with case despite warnings and it being
clear it had no merit – costs awarded
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
It
seems to me that despite the advent of our democracy and the adoption
of our progressive Constitution, now more than two decades
ago,
discrimination claims, especially in the context of employment law,
are unfortunately still a regular occurrence.  This
leaves one
pondering the question, why is this so?  Is it true that
discrimination is still alive and vibrant in the workplaces
of this
country?  Is it a case that litigants simply do not understand
what a discrimination claim in fact entails?
Or is it just a
new form of ambulance chasing with the view to extort monetary
benefits, considering the fact that such claims
in effect have a
substantial punitive component and no limit on compensation?
[1]
I must confess that I have my concerns that the spate of
discrimination claims seeking money are founded on this latter
consideration.
[2]
But
the above being said, the fact however remains that because of the
nature of the issues and fundamental rights involved in
discrimination claims, a Court should be careful and circumspect in
declining to entertain the claim, especially where it comes
to
deciding issues such as absolution from the instance.
[2]
After all, Courts are the custodians of the right to equality under
the Constitution.
[3]
These
opening remarks then bring me neatly to the case now at hand.
It is a claim by the applicants based on unfair discrimination
as
contemplated by Section 6 of the Employment Equity Act (‘the
EEA’)
[3]
.
At the heart of the case is a complaint about a remuneration
differentiation between the applicants and employees in another
post
at the respondent, with the applicants saying that they perform same
or similar work as these other employees, but are paid
less and
receive lesser benefits.  As far as the applicants are
concerned, this difference in remuneration and benefits is
not
founded on a listed ground in Section 6 of the EEA, but on an
unlisted arbitrary ground, also contemplated by Section 6 of
the
EEA.
[4]
The applicants initially brought their case
by way of motion proceedings in terms of Rule 7 of the Labour Court
Rules, filed in
2013.  This was followed by an application for
default judgment by the applicants, and interlocutory applications
under Rules
23 and 30 by the respondent as well as an answering
affidavit.  At some point, it was agreed that the matter rather
proceed
by way of oral evidence, which meant that a pre-trial had to
be held.  The Court file then also contains a plethora of
directives
relating to the holding of a pre-trial conference, and the
signing and submitting of a pre-trial minute.
[5]
This matter was set down for default before
Lagrange J on 25 October 2016.  The default judgment did not
proceed.  Instead,
the parties held a pre-trial conference, and
filed a pre-trial minute. In terms of this pre-trial minute, all the
aforesaid interlocutory
applications were withdrawn, and I shall have
no further regard to such processes.  It was agreed that the
matter would proceed
to trial.  Lagrange J then ordered, in this
context, that the founding and answering affidavits filed by the
parties would
stand as a statement of case and an answering statement
respectively, and the parties were directed to conduct a
supplementary
pre-trial so as to comply with the directives
prescribed for pre-trial minutes relating to discrimination claims.
Lagrange
J also ordered that the matter be set down for two days, on
trial.
[6]
The supplementary pre-trial minute was only
ultimately filed on 5 May 2017.  In it, the applicants then
listed a number of
individual grounds of alleged discrimination,
which will be dealt with later in this judgment.
[7]
The matter came before me for trial on 11
and 12 May 2017.  At the outset of the proceedings on 11 May
2017, the applicants’
attorney, Mr Vuyizsa Vuza, stated that
the applicants were now longer seeking relief as contemplated by
prayer 1 of the notice
of motion.  This prayer reads: ‘
That
the post of Pollution Control Officer be nullified as it is derived
from the scope of Practice of Environmental Health Practitioners.
’
Mr Vuza made it clear that the applicants were no
longer attacking the legality of the creation of the posts of
Pollution Control
Officer, but that the applicants were saying that
the creation of these posts, and then differentiating between them,
constitutes
discrimination against the applicants as Environmental
Health Practitioners.
[8]
I
then expressed my concerns to Mr Vuza about the fact that the
discrimination case of the applicants was not properly pleaded or

identified, despite the supplementary pre-trial.  I enquired
from Mr Vuza if he could indicate to me what exactly the unlisted

arbitrary ground was that the applicants would rely on in
establishing their claim, especially in the context of the judgment
in
Harksen
v Lane NO and Others.
[4]
I was
informed by Mr Vuza that he could not provide me with a definitive
answer, but that the ground relied on would become ‘apparent’

during evidence. As unsatisfactory as such a mystery ground of
discrimination may be to the proper conducting of a discrimination

case, I nonetheless allowed Mr Vuza to continue to lead the evidence
of his first witness so as to establish where all of this
could
possibly be going.
[9]
One of the applicants, Mirriam Sethole
(‘Sethole’) was then called to testify.  I will deal
fully with her evidence
later in this judgment.  Suffice it to
say, after Sethole had been cross examined and concluded her
evidence, it was still
not apparent to me what the unlisted arbitrary
ground was that the applicants were relying upon.  In short, the
mystery ground
of discrimination did not come to the fore in the
evidence.  I pointed out to Mr Vuza that I remained concerned
that even
after the conclusion of the testimony of Sethole, the
applicants, even on a
prima facie
basis, had made out no case of discrimination.  I then adjourned
the proceedings to 26 June 2017, so as to afford the applicants
an
opportunity to consider their options and whether they in fact should
proceed with the case.
[10]
The trial reconvened on 26 June 2017.
This time, the applicants had been bolstered in the conducting of
their case by counsel
that had now been briefed, being Mr B Sibuyi.
Mr Sibuyi indicated to me that he had been consulted by the
applicants about
the matter, and that he was satisfied that the
matter should proceed.  The applicants then also moved an
application for an
amendment of the statement of claim (former
founding affidavit), together with an application to join two
employees of the respondent
as further respondents to the
proceedings, on the basis that these employees may be affected by the
case the applicants were seeking
to make out.  This further
process had been filed about a week before the resumption of the
trial.
[11]
Counsel for the respondent, Mr D L
Dikolomela, indicated that the respondent did not oppose the
applications for joinder and amendment,
and left it in the hands of
the Court. He indicated that the respondent’s attorneys also
represented the two individual respondents
the applicants sought to
add to the proceedings, and recorded that these respondents waived
their rights to individually participate
in the proceedings, and
would abide by what the respondent would do to oppose the matter.
[12]
I made a proposal to the parties that in
the interest of now concluding this matter, which had been dragging
since 2013, the matter
proceed on the basis of it being assumed that
the amendment and the joinder sought by the applicants as being
granted, and if needs
be, I would address these issues pertinently in
my judgment to follow.  Both parties agreed to this, and the
matter then proceeded
with the applicants calling their next witness,
Mr Wilfred Gaonnwe (‘Gaonnwe’).  At the conclusion
of his testimony,
the applicants then closed their case.
[13]
Mr
Dikolomela
then indicated, after the applicants closed their case, that the
respondent intended to apply for absolution from the
instance on the
basis that the applicants failed to make out even a
prima
facie
case against the respondents in
respect of their discrimination claim.  The application was
opposed by Mr Sibuyi.  Both
parties filed written argument.
It is this absolution from the instance application that now forms
the subject matter of
this judgment.
Principles:
absolution from the instance
[14]
It is
trite that the Labour Court has the power to consider and determine
applications for absolution from the instance.
[5]
The test to be applied in considering an application for absolution
from the instance was described in
Gordon
Lloyd Page and Associates v Rivera and Another
[6]
as follows:
‘
The
test for absolution to be applied by a trial court at the end of a
plaintiff's case was formulated in
Claude
Neon Lights (SA) Ltd v Daniel
1976
(4) SA 403
(A)
at
409G - H in these terms:
'...
(W)hen absolution from the instance is sought at the close of
plaintiff's case, the test to be applied is not whether the evidence

led by plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which a Court,

applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff. (
Gascoyne
v Paul and Hunter
1917 TPD 170
at 173;
Ruto
Flour Mills (Pty) Ltd v Adelson (2)
1958
(4) SA 307
(T)
.)'
This
implies that a plaintiff has to make out a
prima
facie
case - in the sense that there is evidence relating to all the
elements of the claim - to survive absolution because without such

evidence no court could find for the plaintiff (
Marine
and Trade Insurance Co Ltd v Van der Schyff
1972
(1) SA 26
(A)
at
37G - 38A; Schmidt
Bewysreg
4th ed at 91 - 2). As far as inferences from the evidence are
concerned, the inference relied upon by the plaintiff must be a
reasonable one, not the only reasonable one (
Schmidt
at 93)… The court ought not to be concerned with what someone
else might think; it should rather be concerned with its own
judgment
and not that of another 'reasonable' person or court. Having said
this, absolution at the end of a plaintiff's case, in
the ordinary
course of events, will nevertheless be granted sparingly but when the
occasion arises, a court should order it
in the interests of
justice.
’
[15]
In
terms of the
dictum
in
Gordon
Lloyd
referred to
above, I thus need to consider if the applicants have produced
sufficient evidence to at least, on their own case, reasonably

establish the
prima facie
existence of discrimination on an unlisted arbitrary ground.
Therefore, considering the case as pleaded and the evidence
of the
two witnesses for the applicants together with the documentary
evidence, did the applicants do enough to even substantiate
the claim
in the absence of anything presented by the respondent? In
Motaung
v Wits University (School of Education)
[7]
the Court
said the following in this respect:
‘
In
view of the nature of the applicant's claim, it has to be established
whether the applicant has adduced sufficient evidence supporting
the
facts required to back up her claim, and upon which this court might
give judgment against the respondent. …’
[16]
Further,
and when considering an application for absolution from the instance,
it is still evidence that must be considered, and
determined. This
means that the enquiry must entail some measure of evaluation of the
evidence of the applicants up to the point
of the closing of their
case. It would also include a credibility assessment of the testimony
presented so far.  In other
words, the consideration of an
absolution application is not done on the basis of simply accepting
that all the testimony presented
by the applicant is true, without
any consideration or reservation.  In
Bandat
v De Kock and Another
[8]
the Court said:
‘…
The
evidence must still be evaluated and in particular, be compared to
the evidence of the other witnesses for the applicant that
testified
as well as the agreed and accepted documentary evidence, as well as
the pleadings. It must be decided if the applicant's
case is at least
one reasonable inference that can at this stage be drawn from the
evidence properly before the court as a whole
…
’
In
Commercial
Stevedoring Agricultural and Allied Workers Union on behalf of Dube
and Others v Robertson Abattoir
[9]
the Court
followed a similar approach in dealing with an appeal of a judgment
of the Court
a
quo
in granting absolution from the instance in an automatic unfair
dismissal claim, when saying:
‘…
But
that on its own should not detract a court from a proper enquiry,
namely whether there was evidence produced by the appellants
upon
which a court applying its mind reasonably could or might have found
a sufficient credible possibility that an automatically
unfair
dismissal had taken place.
’
[17]
It
must therefore be decided if the applicants’ case at this stage
has at least one reasonable inference that can be drawn
from the
evidence properly before the Court as a whole. In
Nombakuse
v Department of Transport and Public Works: Western Cape Provincial
Government
[10]
the Court held:
‘
In
the case of an inference, the test at the end of the applicant's case
is as follows: the court will refuse the application for
absolution
from the instance unless it is satisfied that no reasonable court
could draw the inference for which the applicant contends.
The court
is not required to weigh up different possible inferences but merely
to determine whether one of the reasonable inferences
is in favour
of the applicant.
’
[18]
In
deciding any absolution application, the issue of who bears the
onus
is also of importance.
[11]
The point is that if the applicants do not bear the
onus
,
then it simply cannot be said that the applicants are required to
make out a
prima
facie
case. Therefore, the consideration of any absolution application is
always inextricably linked with the party who bears the
onus
.
The Court in
Janda
v First National Bank,
[12]
in dealing with an absolution application, said:
The
test to be applied by the court at this stage of the proceedings is
whether there is sufficient evidence upon which a reasonable
person
could find for the applicant or, as it has also been expressed, the
question is whether there is such evidence, assuming
it to be true,
upon which a reasonable court might, not should, give judgment
against the respondent. (See Zeffertt et al
The
SA Law of Evidence
at
164-5 and the authorities referred to.) To answer this question it is
necessary to determine the nature of the onus and where
it lies. As
correctly submitted by Mr
Hulley
,
for the applicant, the incidence of the onus is determined by the law
and that the views of the parties as expressed in the pretrial
minute
are not conclusive thereof…
’
Similarly and in
Black
v John Snow Public Health Group
[13]
the Court
held:
‘…
It
has been said that absolution from the instance can only be granted
if the onus rests on the plaintiff and not on the respondent’
[19]
Can
it be said that the applicants bear the
onus
in this case to establish the existence of discrimination on an
unlisted arbitrary ground?  In my view, certainly so.
The
applicants instituted proceedings in the Labour Court in this matter
in July 2013.  This was prior to the amendments
to
the EEA,
[14]
which came into effect on 1 August 2014.  Where it comes to the
issue of the
onus
,
this is dealt with in Section 11 of the EEA.  Prior to the
amendments, Section 11 of the EEA read:
‘
Whenever
unfair discrimination is alleged in terms of this Act, the employer
against whom the allegation is made must establish
that it is fair.’
[20]
It
has been generally accepted that this text of Section 11 of the EEA
contemplated the application of the principles as set out
in
Harksen.
[15]
The
Harksen
approach entails that it must firstly be established by the
complainant that the differentiation (conduct) in fact amounts to
discrimination, and then secondly, only if this is established, the
duty then shifts to the respondent to show that this discrimination

is fair.
[16]
In short, an applicant has the
onus
to show the existence of discrimination, and once shown the
respondent has the
onus
to show it is fair.
[21]
This
test articulated in
Harksen
has been consistently applied by the Labour Court in deciding
discrimination claims, both when considering automatic unfair
dismissals
cases in terms of Section 187(1)(f) of the LRA
[17]
,
or outright discrimination claims in terms of Sections 10 and 50 of
the EEA.  It follows that the applicant must prove the
existence
of discrimination.
[18]
A few judgments bear specific mention.  Specifically in the
context of an absolution application, the Court in
Nombakuse
[19]
said:
‘
Our
courts have consistently held that, in order for the applicant to
shift the burden of proof to the respondent to prove that
the alleged
discrimination was fair, the applicant must at least establish that
there was discrimination on a listed (or analogous)
ground.’
Similarly
and
Farhana
v Open Learning Systems Education Trust
[20]
the Court
held:
‘…
in
cases involving allegations of discrimination the duty is on the
party making the allegations to show that there was discrimination

and whether the discriminatory practice has impacted on the dignity
of the affected individual.
’
[22]
In
Independent
Municipal and Allied Workers Union and Another v City of Cape
Town
[21]
,
the Court properly summarized the position as follows:
‘
Moreover,
s 11 of the EEA provides that whenever unfair discrimination is
alleged, the employer against whom the allegation is made
must
establish that it is fair. This in effect creates a rebuttable
presumption that once discrimination is shown to exist by the

applicant it is assumed to be unfair and the employer must justify it
-
Jooste
v Score Supermarket Trading (Pty) Ltd (Minister of Labour
Intervening)
1999
(2) SA 1
(CC)
;
(1999)
20 ILJ 525 (CC)
;
and
Hoffmann
v SA Airways
2000
(2) SA 628
(W)
;
(2000)
21 ILJ 891 (W)
.
Once discrimination has been established, the employer will have to
prove that the discrimination was fair …
’
In
specifically dealing with discrimination on an unlisted ground, the
court in
Matjhabeng
Municipality v Mothupi NO and Others
[22]
said:
‘…
a
litigant who founds a cause of action on unfair discrimination based
on an unlisted ground bears the onus to establish the discrimination

and to prove that such discrimination is unfair.
’
[23]
Following the 2014 amendments to the EEA, Section 11 now
reads:
‘
(1)
If unfair discrimination is alleged on a ground listed in section
6(1), the employer against whom the allegation is made must
prove, on
a balance of probabilities, that such discrimination-
(a)
did
not take place as alleged; or
(b)
is
rational and not unfair, or is otherwise justifiable.
(2) If unfair discrimination is
alleged on an arbitrary ground, the complainant must prove, on a
balance of probabilities, that
—
(a)
the
conduct complained of is not rational;
(b)
the
conduct complained of amounts to discrimination ; and
(c)
the
discrimination is unfair.
'
[24]
These amendments however
do not change the issue of where the
onus
lies,
in casu
,
for two reasons.  Firstly, the amendments to Section 11 of the
EEA do not have retrospective application, and the applicable

provisions of the EEA are those which applied at the point when the
applicants referred this dispute to the Labour Court in 2013.

As held in
Bandat
:
[23]
‘…
there
is nothing in the EEA or in the amendment thereof which indicates
that it must be applied retrospectively. As such, the presumption

that must apply is that it is not retrospective and that the existing
procedure prior to the amendment must find application. This

presumption can then only be rebutted if there exists particular
considerations of fairness and equity to do so and if there is
a
clear intention to be gathered from the statute itself that it was
intended to apply to even pending proceedings. I can find
no
indication in the EEA of any intention that the amendment applies to
existing and pending proceedings, already in existence
prior to the
amendment. I can equally find no compelling reasons of equity and
fairness necessitating a departure from the general
principles as
stated. …
’
This
means that the principle that the
onus
is on the applicants to
prove discrimination, as discussed above, remains applicable.
[25]
Secondly, and even if
Section 11 of the EEA after its amendment is considered, there is a
clear distinction, where it comes to the
issue of who bears the
onus
,
between a case of discrimination based on one of the listed grounds
in Section 6(1)
[24]
of the EEA, and a case based on any other unlisted arbitrary ground.
In the case of a claim of discrimination based on a
listed ground, an
allegation of such kind of discrimination by a complainant suffices,
and the
onus
is then on the respondent party to prove it does not exist.  But
in the case of a discrimination claim based on any other
unlisted
arbitrary ground, the
onus
is on the complainant to prove that discrimination based on that
ground exists.  Considering that the applicants’ claim
is
squarely based on such an unlisted arbitrary ground, they would in
any event bear the
onus
to prove the existence of discrimination, in terms of Section 11(2)
of the EEA, as it stands after amendment.
[26]
With the applicants thus bearing the
onus
in respect of their discrimination claim, it is therefore competent
to proceed to decide, in terms of an absolution from the instance

application, whether the applicants have at least made out a
prima
facie
case in this regard and whether
their evidence, as led to the point of closure of their case, can at
least lead to a reasonable
inference that they had been discriminated
against in the context of remuneration disparity. I will now proceed
to set out the
background facts as established by the evidence
properly before me, as a whole, to the point of the applicants
closing their case.
The
relevant background
[27]
The
applicants are all employed as Environmental Health Practitioners
(‘EHP’) by the respondent.  They were all
employed
in terms of the National Health Act
[25]
and all stationed at various offices across the respondent’s
district municipal scope.  Sethole, who testified
for the
applicants, was stationed at Matlosana, whilst Gaonnwe was based at
Potchefstroom.
[28]
The duties of an EHP are fairly broad.
It included water quality monitoring, food control, waste management,
health surveillance
of premises, surveillance and prevention of
communicable diseases during immunization, vector control,
environmental pollution
control, disposal of the dead, and chemical
safety.
[29]
The
respondent also had in its organizational structure the position of
Pollution Control Officer (‘PCO’).  A PCO
is
appointed in terms of the National Environmental Management: Air
Quality Act.
[26]
The duties of a PCO is focussed only on pollution control, with a
number of key performance areas relating specifically to this.
[30]
It was common cause that the respondent
introduced the position of PCO by way of a council resolution in
2008, and then appointed,
in 2009, four incumbents into these
positions.  The fact is that the position of POC was created in
the organizational structure
before Sethole even became employed as
EHP at the respondent.
[31]
When this matter came before Court, the
respondent had 21 EHPs in its employ, each covering a specific
district allocated to them.
As opposed to this, the respondent
at the same time only had 2 POCs in its employ, who both covered all
districts the EHPs also
covered.
[32]
In terms of the respondent’s
organizational structure, PCO positions are graded at a level 5 and
the EHP position is graded
at a level 7.  It is common cause
that level 5 is a higher grade than level 7, and carries with it
higher remuneration and
benefits.
[33]
In order to fill the post of a PCO, an
incumbent would have to have a B Tech degree in the field of
environmental management / health
science, or a 4(four) year BSc
degree.  Minimum experience of 4(four) years’ in
environmental pollution control was
also a requirement.
The post of EHP requires the incumbent for the post to have a
National Diploma in environmental
health (or related qualification),
and to be registered at the Health Professions Council.  On face
value in terms of this,
the PCO positions appear to be a higher level
and more specialized position, to that of an EHP.
[34]
The job descriptions of the two respective
positions also formed part of the undisputed documentary evidence. A
comparison of these
job descriptions show that the EHP position was
far more general and wide ranging to that of PCO, and sets out three
pages worth
of key duties. It was, simply described, a generalist
position which, as defined in the job description itself, had as its
core
responsibility ‘
To
identify, evaluate, monitor and control all factors in the
environment that can potentially affect the health and well-being
of
communities
’
.  As opposed
to this, the job description of PCOs set out only one page of
specific duties all relating only to pollution
control, with the job
description describing the core responsibility of the position as
being ‘
To
manage and co-ordinate Environmental Pollution Control activities
…
’
.  A comparison
of the job descriptions, just on face value, show that only a small
component of the duties of an EHP would
relate to what can be termed
pollution control, with most of these duties being marked ‘as
required’ from time to time,
as opposed to the job description
of the PCO, which stipulated these kind of duties as being ‘ongoing’.
[35]
Accordingly, and on the documentary
evidence as it stands, the positions of PCO and EHP are not the
same.  The level, speciality
and qualification requirements for
the positions are not the same.  The job descriptions show,
despite an overlap in only
a smaller part of the duties of an EHP,
the PCO to be focussed only on pollution control, with detailed
responsibilities in this
regard on an ongoing basis, as opposed to
the general responsibilities of the EHP only as required where it
comes to pollution
control functions.
[36]
In presenting testimony, Sethole conceded
that as far as she could recall, the position of PCO always appeared
in the respondent’s
organogram.  She however took issue
with the fact that a PCO was graded higher than her position of EHP,
because the kind
of pollution control work being allocated to the PCO
was part of her duties as EHP.  She in fact complained that
pollution
control was only one of her many functions, and it was thus
‘unfair’ that her position was being graded lower.
[37]
But faced with the prospect that the
position of PCO in fact existed at all times, with the particular
grade attached to it, and
with its own job description and qualifying
criteria that she did not meet, Sethole then fell back on the
contention that the creation
of the post of PCO by the respondent was
‘illegal’.  It is perhaps important to interpose the
summary of the evidence
of Sethole, at this stage, to reiterate that
at the outset of this matter, the applicants specifically abandoned
seeking any relief
to the effect that the creation of the post of PCO
was unlawful and thus had to be nullified. This being the case,
Sethole’s
evidence that the creation of the post of PCO was
unlawful is simply not acceptable, and smacks of being an
afterthought to try
and explain the unexplainable.
[38]
Under what was in my view effective cross
examination by Mr Dikolomela for the respondent, Sethole conceded
that the respondent
in fact advertised the positions of PCO to be
filled, at the higher grade, and that she could have applied for it
if she wanted.
She said that she decided not to apply for it,
explaining that as far as she was concerned, she was already doing
pollution control
work as part of her duties.  When it was put
to her that some of the other EHPs applied for the PCO positions
(which the documentary
evidence showed did happen), she avoided
answering the question.
[39]
Sethole was asked how the creation of the
positon of PCO could constitute discrimination against her,
considering it was created
before she even started working for the
respondent.  Once again, Sethole avoided answering the question,
but when pressed,
conceded that the creation of the post of PCO was
not discrimination against her.  Sethole also conceded that she
could not
say that when persons were then appointed to the positions
of PCOs, this was done on a discriminatory basis towards her.
[40]
When asked what she then saw as being
discrimination against her, Sithole answered that she considered
herself discriminated against
when she saw what PCOs were earning,
under circumstances where she did not only similar work, but even
more work.  She then
made the concession that she in effect
wanted was for her position to be regraded and that she be
remunerated according to PCOs
received.
[41]
Mr Dikolomela asked Sithole whether part of
her duties included pest control, also referred to as vector control,
and she answered
that this was indeed the case.  It was then
pointed out to her that the respondent also had dedicated vector
pest) control
officers, and Sethole conceded this, stating that these
officers were also doing part of her job.  She was asked why the
appointment
of these vector control officers doing part of her job
could not be seen to be discrimination against her for the same
reason as
the PCOs doing part of her job, and her answer was that she
did not see it as discrimination because vector control officers were

graded lower than her.
[42]
Sithole in the end conceded that her
contention of discrimination was squarely founded on the position of
PCO being graded higher
than her position of EHP, and that there was
a higher remuneration attached to such higher grade, which she
believed was ‘unfair’.
[43]
Again, and in cross examination, and when
faced with difficult questions as to how the creation of the post of
PCO could be seen
to constitute discrimination, Sithole fell back on
the abandoned case that the creation of that post was unlawful and
that she
wanted the Court to nullify the position.  Under
re-examination, Sithole then changed her tune and said she had no
problem
with the post of PCO, but her problem was one of fairness
where it came to comparing the two positions.  Then, and in
virtually
the same breath, she again complains that the position of
PCO is invalid.
[44]
As touched on above, and when the trial
reconvened in June, Gaonnwe was the second witness for the
applicants. His evidence added
very little to the enquiry of
establishing discrimination.  The thrust of his evidence was
that PCOs should be issuing licences
and did not do this, as this was
being done by the EHPs.  He also stated that he was being
discriminated against because he
carried out the same functions as
PCOs but he was graded and earned less.
[45]
Under cross examination, Gaonnwe conceded
that he could have applied for the position of PCO, but he decided
not to do this as ‘a
matter of principle’.  He also
admitted that he did not have the required qualification to be
appointed as PCO.
Goannwe however then added that as far as he
was concerned, the position of PCO was ‘illegal’.
[46]
Mr Dikolomela then explored a pertinent
proposition with Gaonnwe.  He was asked if he wanted the salary
and benefits of a PCO,
and he answered that this was indeed the
case.  It was then put to him that if he said the position was
illegal, he thus wanted
the salary and benefits of an illegal
position, which is surely not permissible.  He could not answer
this proposition.
[47]
It was then explored with Gaonnwe why he
was of the view that the post of PCO was “illegal’.
His answer was that
as far as he was concerned, whenever an employee
fulfilled any of the functions as listed in the scope of work of the
EHP, such
an employee had to be registered with the Health
Practitioners Council.  He stated that part of the functions of
the EHP was
pollution control, so anyone doing pollution control had
to be so registered, and PCOs were not.  He was then also
confronted
with the issue of pest control which was part of the
functions of an EHP, and it was put to him that vector control
officers doing
this function did not have be so registered.  He
could provide no satisfactory answer for this.
[48]
Goannwe ultimately contended that his
complaint was that he was being unfairly treated, because he was
doing the same and even more
work that the PCOs, but was graded and
remunerated less.
[49]
As no further witnesses testified, the
aforesaid is then the crux of the evidence upon which the applicants’
discrimination
claim is based.  I will now turn to deciding
whether this even makes out a
prima
facie
case of discrimination.
Evaluation
[50]
Before
deciding the discrimination case, I am compelled to deal with the
contention that the creation of the post of a PCO was unlawful
and
had to be nullified.  The applicants persisted in arguing this
point when opposing the application for absolution, despite

specifically abandoning it at the start of the trial, and the
respondent agreeing to the same.  They also sought to raise
this
issue again in the belated joinder application filed in June 2017.
It is not permissible to raise an issue for consideration
again in a
trial, where it has been specifically abandoned prior to the trial
commencing, pursuant to an agreement between the
parties.  As
specifically said in
Filta-Matix
(
Pty)
Ltd v Freudenberg and Others
:
[27]
'
…
If
a party elects to limit the ambit of his case, the election is
usually binding …
'
[51]
In
dealing with an agreement to limit issues as contained in a pre-trial
minute, and in
National
Union of Metalworkers of SA and Others v Driveline Technologies (Pty)
Ltd and Another
[28]
,
the Court said:
‘
I
think it is necessary immediately to accept as a point of departure
that, where a litigant is a party to a pre-trial minute reflecting

agreement on certain issues, our courts will generally hold the
parties to that agreement or to those issues. …’
[52]
In
GE
Security (Africa) v Airey and Others,
[29]
the Court was again confronted with a situation where a litigating
party sought to rely on issues outside the ambit of a pre-trial

minute and the Court held:
‘
The
respondents' counsel submitted, relying on the matter of
Shill
v
Milner
1937 AD 101
,
that the issues in the pretrial minute had been broadened because of
a lack of an objection to the questions put to McKenzie…
I
reject this submission for two additional reasons:
21.1     Firstly,
there was never any formal application made to withdraw the
admission.
21.2
Secondly, the appellant's counsel was not obliged to object to
questions which sought to elicit an
answer to a common cause fact
which had been settled and was entitled to remain silent and argue at
the end that the court could
ignore the answer of a witness that was
at variance with what were the agreed facts. A court does not have
the power to go beyond
the agreed common cause facts in the absence
of fraud or the granting of an application to withdraw an
admission….
’
[53]
The
applicants must thus be held to that which they had agreed to when
this trial started.
[30]
It is impermissible to seek to change positions basically half way
though the trial.  I may add that Mr Dikolomela frequently
took
the two witnesses for the applicants to task in cross examination,
where they sought to rely on a contention that the PCO
posts were
illegal, because of this agreement.
[54]
Therefore, the case of the applicants that
the creation of the PCO posts was unlawful and must be nullified is
not open for consideration.
For this reason as well, the
joinder application must be refused.  However, and in any event,
both Sethole and Goannwe in
evidence conceded that the PCO posts were
legitimately created in the respondent’s organizational
structure as far back as
2008, had already been created before they
started working there, and that they could have applied for these
positions when the
same was filled, but elected not to.  It is
also clear from the evidence that these posts were filled in 2009 and
the first
complaint emanating from the applicants about the PCOs only
arose in April 2012.  It can hardly be said, even on the
evidence
as presented by the applicants, that the legitimacy of the
creation and then filling of the PCO posts, in 2008 and 2009
respectively,
was ever really in issue.
[55]
I will therefore proceed to decide this
matter on the basis that the post of a PCO properly formed part of
the respondent’s
organizational structure, was a post that has
been legitimately created in that structure, and that the post had
its own qualifying
provisions, job description and grading level.
[56]
The point of departure in deciding whether
the applicants had made out a
prima
facie
case of discrimination has to be
a consideration of Section 6(1) of the EEA.  Prior to the 2014
amendments to the EEA, the
Section read:
‘
No
person may unfairly discriminate, directly or indirectly, against an
employee, 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 and birth.
’
What
the 2014 amendments to the EEA did was to add the phrase
‘…
or
on any other arbitrary ground
’
to the end of the Section.
[31]
[57]
The
applicants have also argued that Section 6(4)
[32]
of the EEA applied in this case, and that they also relied on that
provision.  Of course, and when this claim was brought
in 2013,
Section 6(4) did not exist.  But in the founding affidavit, it
is clear that the applicant’s claim is articulated
in the form
as one would articulate a claim under Section 6(4).  This
position was reaffirmed by way of the notice of intention
to amend
dated 20 June 2017, which the respondent did not oppose.  I will
therefore accept that reliance on Section 6(4) of
the EEA is part of
the applicants’ case.  That being said, reliance on this
provision
per
se
and as it now stands can however be swiftly disposed of.  As I
have said earlier in this judgment
[33]
,
Section 6(4) came about as a result of the 2014 amendments to the
EEA, and these amendments do not have retrospective effect.
At
risk of repetition, I reiterate that this matter must be decided on
the basis of the EEA as it existed at the time when the
applicants
initiated their claim in the Labour Court in 2013.
[58]
The
above being said, what is in any event clear is that the 2014
amendment to Sections 6(1) and 11 of the EEA, together with the

introduction of Section 6(4), did nothing more than to simply give
written manifestation to the manner in which the Labour Court
had
already been interpreting and applying Sections 6 and 11 of the EEA
prior to amendment, especially in the context of what became
known as
‘equal pay’ disputes.  This was aptly summarized in
Mangena
and Others v Fila SA (Pty) Ltd and Others
[34]
as follows:
‘
The
first question that arises is whether equal pay claims, and in
particular claims for equal pay for work of equal value, are

contemplated by the EEA. Unlike equality legislation in many other
jurisdictions, the EEA does not specifically regulate equal
pay
claims. Section 6 of the Act prohibits unfair discrimination in any
employment policy or practice, on any of the grounds listed
in s 6(1)
or on any analogous ground, if an applicant is able to show that the
ground is based on attributes or characteristics
that have the
potential to impair the fundamental human dignity of persons or to
affect them in a comparably serious manner. …
'Employment
policy or practice' is defined by s 1 of the EEA to include
remuneration, employment benefits and terms and conditions
of
employment. To pay an employee less for performing the same or
similar work on a listed or an analogous ground clearly constitutes

less favourable treatment on a prohibited ground, and any claim for
equal pay for work that is the same or similar falls to be
determined
in terms of the EEA. Similarly, although the EEA makes no specific
mention of claims of equal pay for work of equal
value, the terms of
the prohibition against unfair discrimination established by s 6 are
sufficiently broad to incorporate claims
of this nature. … I
see no reason why the principle of equal pay for work of equal value
should not be extended beyond the
listed ground of sex to other
listed and analogous grounds …
’
In
Duma
v Minister of Correctional Services and Others
[35]
the Court also, in dealing with an equal pay claim under the EEA
prior to amendment, accepted that the reference to ‘
one
or more grounds,
including
…
’
(emphasis
added) in Section 6(1) of the EEA prior to amendment contemplated
unlisted arbitrary grounds.  In my view, it is
clear that the
amendments to the EEA contemplate
inter
alia
the aforesaid considerations.
[59]
Therefore, and similar to the approach that
has been consistently adopted in the Court so far, Section 6(4) still
contemplates the
establishment of differentiation, and then requires
that this differentiation be based on the grounds in Section 6(1),
for it to
be discrimination.  In short, whether one relies on
the amended Section 6(1) and the newly created Section 6(4) of the
EEA,
or the application of Section 6(1) of the EEA prior to the 2014
amendments, the position relating to establishment of differentiation

and then whether that differentiation amounts to discrimination,
remains the same.
[60]
As I have touched on above in the
introduction in this judgment, the applicants in effect sought to
rely on a mystery unlisted arbitrary
ground as the foundation for
their claim of discrimination.  What was pleaded as alleged
grounds of discrimination in the
founding affidavit were that the
duties of PCOs were simply an extract from part of the duties of the
EHPs, that the PCOs were
graded and paid higher that EHPs, that is
was unjustified for the respondent to create the post of PCOs rather
than simply increasing
the number of EHPs, and that the respondent
must prove and justify the difference between the functions of the
two posts of EHP
and PCO.
[61]
The pre-trial that followed did not assist
much.  In terms of the pre-trial minute, the disputed issues
where it came to discrimination
was that the positions of PCO and EHP
were the same in terms of scope of work, that the two positions
should be graded the same
based on their operational output, and that
the two positions should be paid the same and receive the same
benefits.
[62]
In the supplementary pre-trial minute it is
said by the applicants that the grounds of direct discrimination
against them are: (1)
that the post of PCO was created despite their
‘protestation’; (2) the position of PCO was a duplication
of the role
of EHPs and might render the role of the applicants
redundant; (3) the position of PCOs was created at a grade higher
that EHPs;
(4) the PCOs do not possess the skill and know how to
discharge their function; (5) the role of PCO militates against
‘legal
and policy directive and trajectory’; (6) the
respondent pays the PCOs salaries and benefits higher than EHPs for
the same
amount of work; (7) the positions of PCOs are not justified
by the Air Quality Act and not in line with the National Health Act;

and (8) PCOs are not registered with the Health Professions Council.
[63]
It is clear that all of these alleged
grounds of discrimination, as pleaded in the founding affidavit and
pre-trial minutes, provide
no particularity of any kind which could
inform even the most generous reader what exactly the arbitrary
ground would be, considering
the test for unlisted arbitrary grounds
set out in
Harksen
(which I will discuss later).
[64]
The
approach of the applicants in prosecuting their case thus bedevilled
this matter from the outset.  The Labour Court has
been
consistently saying that complainant parties must properly identify
the unlisted arbitrary ground relied on, up front, and
in the
pleadings.
[36]
In
National
Union of Metalworkers of SA and Others v Gabriels (Pty) Ltd
[37]
the Court held:
‘
What
is therefore required, is that a complainant must clearly identify
the ground relied upon and illustrate that it shares the
common trend
of listed grounds, namely that 'it is based on attributes or
characteristics which have the potential to impair the
fundamental
dignity of persons as human beings, or to affect them adversely in a
comparable manner …
’
And
in
Fila
SA
[38]
the Court held as follows specifically in the context of the
differentiation claim:
‘
This
court has repeatedly made it clear that it is not sufficient for a
claimant to point to a differential in remuneration and
claim baldly
that the difference may be ascribed to race. …
’
[65]
In the absence of proper pleading of the
unlisted ground, I was then promised a revelation of the unlisted
arbitrary ground once
the evidence was in.  But I still remain
uninformed, despite the evidence led, considering the testimony
summarised above.
In presenting argument opposing the
application for absolution, Mr Sibuyi for the applicants argued that
the evidence in fact revealed
the following, in summary, as the
unlisted arbitrary grounds:
65.1    The scope of
work of PCOs fall under the scope of work legislatively allocated to
EHPs;
65.2    Insofar as it
is contended that the establishment of PCO positions was done in
terms of the Air Quality Act,
this was fallacious for a number of
reasons, including (1) the Act was promulgated in 2004 and the
respondent only created the
positions in 2009; (2) the PCOs were
still not fulfilling licencing functions as required which indicated
an intention to disadvantage
the EHP by taking part of their core
functions away; (3) the Act does not envisage a post of PCO; (4) the
appointment of PCOs prejudice
EHPs from possibly being trained and
becoming Environmental Management Inspectors under this Act; (5)
there is no environmental
planning subject needed for pollution
control in B Tech which was designated to be a requirement for the
PCO position; (6) ‘tampering’
with the scope of work of
EHPs was unjustified as they never failed to execute their pollution
control functions; and (7) any one
fulfilling work under the scope of
work of EHPs must be registered with the Health Professions Council;
65.3    Employing PCOs
who are not even registered with the Health Professions Council to do
the work of registered
EHOs and then paying then a higher salary is
‘totally unfair’;
65.4    The conduct of
the respondent in this case showed a ‘naked preference’
that served no legitimate
governmental purpose, and the establishment
of the PCO posts were irrational.
[66]
How the above case, even if taken on face
value, can serve to establish the existence of unfair discrimination
against the applicants,
boggles the mind.  It is simply not
unfair discrimination based on an unlisted arbitrary ground as
contemplated by the EEA.
What the applicants simply seem unable
to comprehend is that an enquiry into whether differentiation
constitutes unfair discrimination
is a three level enquiry.  As
will be discussed hereunder, all the applicants did was to seek to
prove the first of the three
levels of this enquiry, being the
existence of impermissible differentiation, and then stopped on the
assumption that unfair discrimination
automatically follows
impermissible differentiation being shown to exist.  As I will
now elaborate on, this approach is simply
wrong.
[67]
The
three level enquiry seeking to establish whether differentiation
constitutes unfair discrimination starts off by determining
whether
the differentiation that exists is of the kind that could give raise
to a case of discrimination.  In short, and even
if there is
differentiation, it does not mean that such differentiation
per
se
would violate the right to equality.  This was specifically
contemplated by the judgment of the Constitutional Court in
Prinsloo
v Van der Linde and Another
[39]
,
where the Court said:
‘
If
each and every differentiation made in terms of the law amounted to
unequal treatment that had to be justified by means of resort
to
section 33, or else constituted discrimination which had to be shown
not to be unfair, the courts could be called upon to review
the
justifiability or fairness of just about the whole legislative
programme and almost all executive conduct. … The courts
would
be compelled to review the reasonableness or the fairness of every
classification of rights, duties, privileges, immunities,
benefits or
disadvantages flowing from any law. Accordingly, it is necessary to
identify the criteria that separate legitimate
differentiation from
differentiation that has crossed the border of constitutional
impermissibility and is unequal or discriminatory
“in the
constitutional sense”
’
[68]
The
Court in
Prinsloo
then proceeded to identify those criteria which would separate
legitimate differentiation from that which could be seen to be
impermissible or possibly discriminatory, as follows:
[40]
‘…
It
is convenient, for descriptive purposes, to refer to the
differentiation presently under discussion as “mere
differentiation”.
In regard to mere differentiation the
constitutional state is expected to act in a rational manner. It
should not regulate in an
arbitrary manner or manifest “naked
preferences” that serve no legitimate governmental purpose, for
that would be inconsistent
with the rule of law and the fundamental
premises of the constitutional state. The purpose of this aspect of
equality is, therefore,
to ensure that the state is bound to function
in a rational manner. …
’
[69]
In my view, what the Court did in
Prinsloo
was to make it clear that only specific kinds of differentiation
would be impermissible.  This would be differentiation that
is
irrational, or arbitrary, or based on what the Court called a ‘naked
preference’, or served no legitimate purpose.

Differentiation that cannot be shown to fall within one of these
categories would be permissible differentiation, the discrimination

enquiry would be at an end there and then, and the discrimination
claim must fail.
[70]
However,
and once it is found that the differentiation is indeed
impermissible, on one of the grounds set out in
Prinsloo
,
then the second and third stage of the enquiry is embarked upon,
namely deciding whether such differentiation can be seen to be

discrimination, and if so, whether that discrimination is unfair.
The Court in
Prinsloo
described this as ‘the further element’, which could take
two different forms (specified or unlisted grounds) of unfair

discrimination.
[41]
In
Mbana
v Shepstone & Wylie
[42]
the Constitutional Court specifically dealt with an unfair
discrimination claim based on differentiation, and which concerned
the application of a policy of an employer to a particular employee
said to amount to differentiating against that employee on an
unfair
discriminatory basis.  The Court dealt with that enquiry at
hand, specifically in the context of the
dictum
in
Prinsloo
set out above, as follows:
[43]
‘
The
first step is to establish whether the respondent's policy
differentiates between people. The second step entails establishing

whether that differentiation amounts to discrimination. The third
step involves determining whether the discrimination is unfair.
…
It
must be noted, however, that once an allegation of unfair
discrimination based on any of the listed grounds in s 6 of the EEA

is made, s 11 of the EEA places the burden of proof on the employer
to prove that such discrimination did not take place or that
it is
justified. Where discrimination is alleged on an arbitrary ground,
the burden is on the complainant to prove that the conduct
complained
of is not rational, that it amounts to discrimination and that the
discrimination is unfair.
’
What
is clear from the aforesaid is that the rationality or not of the
conduct complained of, is an enquiry distinct from that of
whether
such conduct constitutes discrimination.
[71]
The
2014 amendments to Section 11(2) of the EEA therefore also does
nothing more than give proper legislative effect to the above

principles, where it comes to unlisted arbitrary grounds, in that it
reflects the three stage enquiry, namely whether the conduct
is
rational, and then whether the conduct is discrimination, and lastly,
whether the discrimination is unfair. This was recognized
in
Pioneer
Foods (Pty) Ltd v Workers Against Regression and Others
[44]
where the Court held:
‘…
But
in relation to alleged discrimination on an unlisted ground, s 11(2)
obliges the complainant to prove that the conduct complained
of 'is
not rational'; and that it 'amounts to discrimination'; and that the
discrimination is 'unfair'. Unless the complainant
proves that the
conduct complained of 'is not rational' that is the end of the
matter. In this respect s 11(2)
(a)
mirrors the approach adopted by the Constitutional Court in para 25
of
Prinsloo
.
It is only if the differentiation is arbitrary or manifests 'naked
preferences' that serve no legitimate purpose that one even
moves on
to consider whether there has been 'discrimination' and, if so,
whether the discrimination was unfair.
’
[72]
So
therefore, and whether one applies the approach in
Prinsloo
or the text of Section 11(2) of the EEA as amended, the enquiry
remains the same.  In my view, the case argued by the applicants

that the conduct of the respondent in differentiating between the
PCOs and EHPs is irrational, unlawful and constitutes a ‘naked

preference’ can only serve to establish the existence of the
kind of impermissible differentiation that could give rise to
a
possible case of discrimination, as the first stage in the three
stage enquiry.  What the applicants do not comprehend that
all
these contentions, even if true, do not establish the ‘further
element’ of discrimination.  In simple terms,
the phrase
‘arbitrary’ in the context of the unlisted grounds in
terms of Section 6(1) of the EEA is not a synonym
for ‘irrationality’
or even ‘unlawful’.  They are different concepts.
Something may therefore be irrational
or unlawful, but would not be
discrimination, without also establishing the ‘further element’
as per
Prinsloo
.
As held in
Chizunza
v MTN (Pty) Ltd and Others
:
[45]
‘
It
is, however, trite law that although the existence of a
differentiation is a precondition for discrimination, the mere fact
that there is a differentiation or an arbitrary treatment of an
individual, one could not equate a mere differentiation with
discrimination
… Discrimination has a decidedly negative or
pejorative connotation. A differentiation only becomes discrimination
once
a differentiation takes place for an unacceptable reason. These
unacceptable reasons are all listed in s 6(1) of the EEA …
’
As
a result, and at best, the applicants have proven impermissible
differentiation, but not discrimination, on the evidence that
they
have advanced.
[73]
I
must further say that I have my doubts as to whether this case of the
applicants concerning impermissible differentiation has
merit on the
facts, in any event.  The fact is that ultimately, the actual
creation and grading of the PCO posts in the organisational
structure
of the respondent was properly arrived at, lawful, and remained in
reality unchallenged. The attempts by the two witnesses
for the
applicants to fall back on challenging the legality and rationality
of the creation of the PCO posts, was nothing else
but an
afterthought due to their difficulty in dealing with very proficient
cross examination illustrating the
lacunae
in their case, especially considering the abandonment of this
challenge at the outset of this case.
[46]
[74]
Both
witnesses conceded in the end that they had no difficulty with the
creation of the PCO posts.  Finally, the simple fact
is that
even if the creation of the PCO posts are tainted by illegality, this
decision by the respondent stands until set aside,
[47]
which is relief the applicants decided not to pursue.
[48]
[75]
There is however another important obstacle
to the applicants’ differentiation case founded on an
allegation of illegality.
As stated above, the nub of the
applicants’ argument was that the Air Quality Act did not
provide for the position of PCO,
and the respondent acted
irrationally in creating this post where the functions of a PCO were
adequately fulfilled by the EHPs.
But the consequential relief
the applicants want is to be graded and remunerated at the same level
(grade) as PCOs.  What
this means is that the applicants want to
benefit, using a differentiation claim based on unfair
discrimination, for what they
themselves say is an illegal / unlawful
position.  In simple terms, the applicants want to be graded and
remunerated on the
basis of comparing their positions to a position
they contend should not exist in the first place because it is
unlawful and irrational.
The proposition is untenable.
What is considered to be unlawful surely cannot be legitimately used
as a comparator to elevate
the applicants’ positions,
remuneration and grading.
[76]
But perhaps the most telling illustration
of the opportunistic nature of the applicants’ argument can be
found when one considers
the issue of vector control (pest control).
As stated above, it clear that vector control is, just the same as
pollution
control, part of the specifically listed duties of an EHP.
But then, just the same as is the case with a PCO, there are pest

control officers who just fulfil the function of vector control.
The applicants however do not complain about these pest
control posts
as being unlawful, irrational, eroding their responsibilities and
duties, or having to be registered with the Health
Professions
Council.  The simple reason for this is that the pest control
posts are graded lower than EHPs.  This was
properly explored by
Mr Dikolomela for the respondent in cross examining Sethole and
Gaonnwe, and they could provide no satisfactory
answer for this
obvious difficulty.  This serves to cement my view that the
dispute is not the about legality or rationality
of the creation of
the position of a PCO and the duties fulfilled in terms thereof, but
it is about its grading as opposed to and
compared to the grading of
the position of EHP.
[77]
On the evidence as it stands, it is
undoubtedly so that the functions fulfilled by the PCOs are similar
to the pollution control
functions of the applicants as EHPs.
But what such a singular comparison ignores is that the EHP functions
of pollution control
are a much smaller part of the duties of that
position and was a general duty only to be fulfilled as required,
whilst the PCO
position has specific duties relating to pollution
control on an ongoing basis.  It is also true that the PCO
positions are
graded at a higher level and thus carry a higher
salary, but it is clear that the PCO position is a specialized one,
requiring
a degree of speciality and higher qualification.  EHPs
have to be registered with the Medical Practitioners Council, whilst

PCOs do not, indicating a different kind of core scope in duty, which
is actually recognized in the core duty description in the
two
respective job descriptions.  Finally, EHPs have a smaller
region (area) of responsibility than PCOs.
[78]
Thus,
and considering the actual evidence about the two positions as led by
the applicants, as it stands, this evidence is simply
insufficient to
enable me to conduct a proper comparison between the two positions in
order to decide whether there is impermissible
differentiation, on
the facts.  The kind of evidence that needs to be led can be
gathered from considering what is contained
in the Code of Good
Practice on Equal Pay/Remuneration for Work of Equal Value
[49]
,
which provides, in clause 5.4 thereof, certain objective criteria to
be used when comparing positions in the context of an equal
pay
claim.
[79]
These
criteria
[50]
are t
he responsibility
demanded of the work (including responsibility for people, finances
and material), the skills, qualifications,
learning and experience
required to perform the work, the formal or informal, physical,
mental and emotional effort required to
perform the work, and the
assessment of actual working conditions which may include an
assessment of the physical environment,
psychological conditions,
time when and geographic location where the work is performed.
Further in terms of this Code, the weighting
attached to each of
these criteria may vary depending on the sector, employer and the job
concerned.  Clause 7.3 of the Code
provides that it is not
unfair discrimination if the difference is fair and rational and is
based on any one or a combination of
the individuals' respective
seniority or length of service, the individuals' respective
qualifications, ability, competence or
potential above the minimum
acceptable levels required for the performance of the job, the
individuals' respective performance,
quantity or quality of work
(provided that there is consistent application of a performance
evaluation system), whether the employee
is permanent or temporary in
a position, and the existence of a shortage of relevant skill in a
particular job classification.
None of these kind of particulars have
been provided by the applicants, in evidence.
[80]
Of comparable
application to the matter
in
casu
, the Court in
Fila
SA
[51]
held:
‘…
there
is simply no evidence before the court to establish the relative
value that should be accorded to the work that I have found
was
performed by Shabalala and McMullin respectively. Mr Maluleke
appeared to suggest in argument that this was a self-evident
matter,
and that the court could take a view on the facts as to the relative
value of the respective jobs. … But this court
has no
expertise in job grading or the allocation of relative value to
particular occupations or functions. An applicant claiming
equal pay
for work of equal value must lay a proper factual foundation that
would enable the court to make an assessment, as best
it can, on what
value should be attributed to the work in question and the tasks
associated with it. This factual foundation, as
I have indicated
above, might include factors such as skill, effort, responsibility
and the like. In the present case, in the absence
of sufficient
evidence to establish even remotely that the work performed by
Shabalala and McMullin was of equal value, the basis
for the
applicant's alternative claim is simply non-existent.
’
[81]
In my view, the applicants followed the
same kind of approach the Court was critical of in
Fila
SA
.  There simply does not exist
sufficient evidence to conduct a proper comparison for the purposes
of establishing whether
there is impermissible differentiation. I may
add that from the undisputed correspondence forming part of the
documentary evidence,
it is clear that the respondent acknowledged
the similarities between the pollution control functions of the PCOs
and EHPs, but
explained that the position of PCO was a more
specialized position focussing only on one discipline, and that
considering the scope
of the responsibilities of EHPs, they could not
give pollution control the attention it deserved.  This is an
explanation
that makes sense.  It follows that the applicants
have failed to even satisfy the first level of the enquiry discussed
above.
On this basis alone, the applicants’ claim is
bound to fail.
[82]
But
even if I am wrong in this regard, and even should one accept the
existence of impermissible differentiation, the second level
of the
enquiry must still be conducted, which is to establish whether
discrimination exists.  As said, this is an enquiry
distinct and
separate from the enquiry into impermissible differentiation.
What could therefore be seen to be discrimination
in the case where
impermissible differentiation is found to exist?  Of course, if
a complainant relies on a listed ground
such as found in Section 6 of
the EEA, the answer is obvious.  But in the case of an alleged
unlisted arbitrary ground, answering
the question is far more
difficult.  In the case of an ‘arbitrary ground’ as
a basis for a differentiation discrimination
claim in terms of the
EEA, the Constitutional Court in
Mbana
[52]
held that it contemplated differentiation between ‘people’.
That being the case, the differentiation must, in
order to constitute
discrimination based an unlisted ground, and as said in
Harksen
[53]
,
be:
‘…
based
on attributes and characteristics which have the potential to impair
fundamental human dignity of persons as human beings
or to affect
them adversely in a comparable serious manner …
’
[83]
The
Constitutional Court recently in
AB
and Another v Minister of Social Development (Centre for Child Law as
amicus curiae)
[54]
specifically applied the above
dictum
in
Harksen
as follows:
‘
In
this case, it is argued that the discrimination is based on
infertility and the genetic link requirement. These grounds are not

specified in section 9(3) of the Constitution. The differentiation
will amount to discrimination if the impugned provision authorises

unequal treatment of people based on certain attributes and
characteristics attaching to them …’
[84]
The
aforesaid dictum in
Harksen
has also been consistently applied in the Labour Court.  In
Pioneer
Foods
,
[55]
the Court said:
‘
In
short, if the differentiation is not on a specified ground, then
whether or not there is discrimination will depend upon whether,

objectively, the ground is based on attributes and characteristics
which have the potential to impair the fundamental human dignity
of
persons as human beings or to affect them in a comparably serious
manner …’
[85]
Accordingly,
discrimination contemplated in this context means that it has to be
shown that
dignitas
or right of equality of the complainant as a person, or that person’s
personal attributes and characteristics, have been
impaired or
prejudiced.  To describe it simply, the arbitrariness must be
something akin or related to the kind of listed
grounds in Section
6(1) of the EEA.  As said in
Stojce
v University of KwaZulu-Natal and Another
:
[56]
‘
The
Constitutional Court and the Labour Court have considered unlisted
grounds as acts of discrimination if they are analogous to
the listed
grounds …
’
[86]
Further
examples of the kind of ‘arbitrary ground’ not
specifically listed which would be seen to be discrimination,
can be
found in
New
Way Motor and Diesel Engineering (Pty) Ltd v Marsland
[57]
which concerned mental illness based on depression and
Smith
v Kit Kat Group (Pty) Ltd
[58]
which concerned a physical disfigurement as a result of attempted
suicide.
[87]
The
difficulty in establishing discrimination
in
casu
is exacerbated by the fact that the applicants, as I have touched on
above, failed to with sufficient particularity identify and
plead
what the ground is that is relied upon.  Therefore, how is it
possible to decide in what respect the human dignity or
right of
equality of the applicants has been prejudiced or impaired?  In
Ntai
[59]
the Court held:
‘
The
applicants, in alleging 'arbitrary' discrimination, failed to
identify the specific (unlisted) ground upon which they alleged
that
they have been discriminated against. In the event, the applicants
failed to cross the very first hurdle to establish discrimination
on
an unlisted ground. In other words, in the absence of an identified
unlisted ground it is impossible to determine whether the
ground that
is relied upon is comparable to the listed grounds (such as race) in
that it is based upon 'attributes and characteristics
which have the
potential to impair the fundamental human dignity of the applicants
as human beings'. In the result, the applicants
have also failed to
show (in terms of their burden of proof) that the differentiation in
pay in casu amounted to 'discrimination'
…
’
[88]
The
Court in
City
of Cape Town
[60]
articulated a very useful basis of deciding whether an ‘arbitrary
ground’ could be seen to constitute discrimination,
where the
Court said:
'
…
The impact of
the discrimination complained of on the complainant is generally the
determining factor regarding the unfairness of
alleged
discrimination. Factors which must be taken into account include: the
position of the complainants in society and whether
they have
suffered in the past from patterns of disadvantage; the nature of the
provision or power and the purpose sought to be
achieved by it; the
extent to which the discrimination has affected the rights or
interests of complainants and whether it has
led to an impairment of
their fundamental human dignity or constitutes an impairment of a
comparably serious nature.
'
Similarly,
and in
Stojce
[61]
the following guidance was given:
‘
The
test is that the differentiation must impair the fundamental dignity
of people as human beings because of attributes or characteristics

attached to them. Not every attribute or characteristic qualifies for
protection against discrimination. Smokers, thugs, rapists,
hunters
of endangered wildlife and millionaires, as a class, do not qualify
for protection. What distinguishes these groups from
those who
deserve protection? The element of injustice arising from oppression,
exploitation, marginalization, powerlessness, cultural
imperialism,
violence and harm endured by particular groups or the worth and value
of their attributes are qualifying characteristics
that distinguish
differentiation from unfair discrimination …
An
employee who relies on an unlisted ground as being discriminatory
must establish the difference, show that it defines a group
or a
class of persons and that the difference is worthy of protection. To
warrant protection, the applicant must show that the
conduct
complained of impacts on him as a class or group of vulnerable
persons, such as persons with disabilities or family responsibility,

or that the conduct is inherently pejorative as a racist or sexist
utterance might be
.’
[89]
The
fundamental difficulty with the applicants’ case is that they
have simply dismally failed to prove any of the above considerations

where it comes to establishing an arbitrary ground.  They have
failed to identify and plead the actual basis of the ground
relied
on.  They have not shown, even if the testimony and documentary
evidence is taken as it stands, how their fundamental
human dignity
or
persona
has been impaired or prejudiced.  There is virtually no proper
evidence of the impact the alleged discrimination would have
on
them.  What the applicants have done, as I dealt with above, is
to simply equate their complaint of irrational and unlawful
behaviour
by the respondent in creating and then grading the PCO posts (being
the differentiation) as being discrimination, which,
as illustrated,
it is not.  As said in
Mothoa
v SA Police Service and Others
[62]
:
‘…
Although
s 6 of the Employment Equity Act does not provide a closed list of
grounds, that in my view is not licence to bring in
all and
everything that appears to be different from the other.
’
On
this basis alone, the applicants have failed to establish even a
prima facie
case of discrimination on an arbitrary ground,
should the existence of impermissible differentiation be accepted to
exist.
[90]
The above being said, and even if the
evidence as it now exists is considered to try and extract an
arbitrary ground from it, and
thus resolve the mystery ground the
applicants relied upon, this extraction equally must fail.  What
the evidence in my view
shows is that the applicants’ claim has
little to do with the kind of arbitrariness as required.  The
gravamen of the
complaint of the applicants is that they are not
happy with the grading of their EHP positions by the respondent, if
considered
as against the grading of the PCO positions.  They
say, in essence, that it is ‘unfair’ to grade them lower,
and
thus pay them lower, than the PCOs, considering that they do the
same and even more work.  This is evident not only from what
I
have discussed above, but from all the documents accompanying the
founding affidavit, in which it is made clear that the issue
is about
the differential treatment of employees concerning salaries and
benefits,
per se
.
I simply cannot see how this makes out any case of an arbitrary
ground.  It has nothing to with the kind of characteristics
I
have discussed above.  The case of the applicants is in reality
a grading dispute, which may be an unfair labour practice,
but is
certainly not a case of discrimination.
[91]
If it
can be said that the conduct of the respondent is open to criticism
because of the manner in which it considered and then
applied the
applicable legislation concerning the two posts at stake, it can
hardly be said that the respondent decided to create
the PCO post
merely at its own whim and without reason.  The respondent
always behaved transparently, and motivated the creation
of the PCO
post on the basis that it believed that the Air Quality Act provided
for and required it.  Even if these views
may turn out to be
wrong, there is no suggestion that these actions were
mala
fide
.
In my view, the actions of the respondent cannot be seen to be
capricious or arbitrary behaviour.  In
Ntai
[63]
the Court said:
‘
It
also needs to be pointed out that, in any event, on the facts which
presented themselves in casu (discussed fully above), it
can, in all
probability, be accepted that the respondent, in paying the
comparators more than the applicants, did not act in an
arbitrary
fashion, that is to say, the evidence did not show that the
respondent acted in a capricious manner or proceeded merely
from
will, not based upon reason or principle. …
’
The
same conclusion is in my view apposite
in casu
.
[92]
Considering
all of the above, it is my view that the applicants have in any event
failed to satisfy the second level of the enquiry.
They have,
on their own evidence presented to this point and when closing their
case, failed to make out any case of discrimination
on an unlisted
arbitrary ground as contemplated by Section 6(1) of the EEA.  As
said in
Gabriels
:
[64]
‘
It
is clear from the above, and on a reading of the applicants'
statement of case, as amplified, that the applicants have not
ascribed
the differential treatment in question to any ground
analogous to the listed grounds in s 6(1) of the EEA. The applicants
have
failed to allege that the reason for the differentiation is some
characteristic that impacts upon their human dignity. They do no
more
than attempt to describe the difference in pay as being
'disproportional, irrational, arbitrary and capricious', and
'arbitrary,
capricious and irrational actions/practices of the
respondent'.
The
applicants have, accordingly, failed to make the minimum sufficient
allegations to sustain a claim of unfair discrimination…
’
[93]
I
mention in conclusion that in circumstances comparable to the matter
in
casu
,
the Court in the two judgments of
Nombakuse
and
Nelson
Mandela Bay Municipality
upheld applications for absolution from the instance.
[65]
The same outcome must now follow.  The respondent’s
application for absolution from the instance thus succeeds.
Conclusion
[94]
For all the reasons set out
above, I conclude that the applicants have failed to provide
sufficient evidence to even establish a
prima
facie
case that they had been
discriminated against.  In this respect, the applicants have
failed to make out a
prima facie
case both on the basis that impermissible differentiation exists, and
that any differentiation that may exist is founded on an
unlisted
arbitrary ground as contemplated by Section 6(1) of the EEA.
The application for absolution from the instance is
accordingly
granted.
[95]
This
then only leaves the issue of costs.  I accept that there is
still an employment relationship between the parties.
However,
and despite this, it is my view that a costs order against the
applicants is nonetheless justified.  I say this for
a number of
reasons.  Firstly, and being legally represented throughout, it
should have been obvious that a proper discrimination
case had not
been formulated and brought to Court.  In particular, in relying
on a mystery arbitrary ground to be extracted
from the evidence once
led, is an entirely unsatisfactory scenario.  As referred to
above, I specially warned the applicants,
after the first witness had
concluded her testimony, that their discrimination case faced serious
challenges, and they should reconsider
their position.  I also
consider that when giving testimony, the two witnesses for the
applicants sought to fall back on aspects
of their case specifically
abandoned, when they had difficulty in answering pertinent cross
examination.  In my view, the
applicants’ conduct bordered
on pure opportunism to extract a re-grading of their positions and
thus a pay increase from
the respondent.  It must also be
remembered that the respondent is a public service entity, and thus
the legal costs to defend
this case had to come from an already
depleted public purse.  As the Court said in
Motaung
v Wits University (School of Education)
[66]
in granting costs when upholding an absolution application:
‘…
The
old adage that the judicial process is not there for the taking is
even more apposite in this case. It is in this regard that

considerations of law and fairness dictate that an adverse costs
order should follow the result. …
’
All
said, I have a wide discretion under Section 162 of the LRA where it
comes to the issue of costs.  I conclude by exercising
this
discretion in favour of making a costs award against the applicants.
Order
[96]
For all of the reasons as set out above, I
make the following order:
1.
The respondent’s application for
absolution from the instance succeeds.
2.
Absolution from the instance is granted
in respect of all of the claims as contained in the applicants’
statement of claim.
3.
The applicants’ joinder
application is refused.
4.
The applicants shall pay the
respondent’s costs, jointly and severally, the one paying the
other to be absolved.
_____________________
S Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicants:

Advocate W Sibuyi and Mr V Vuza
Instructed
by:

Tshabalala Vuza Tabane Attorneys
For the
Respondent:

Advocate T L Dikolomela
Instructed
by:

Morathi and Mataka Attorneys
[1]
See Section 50(2) of the EEA;
SA
Airways (Pty) Ltd v Jansen van Vuuren and Another
(2014)
35
ILJ
2774 (LAC)
at
paras 78 – 80;
Smith
v Kit Kat Group (Pty) Ltd
(2017) 38 ILJ 483 (LC) at paras 73 – 74.
[2]
See the warning dispensed in
Commercial
Stevedoring Agricultural and Allied Workers Union on behalf of Dube
and Others v Robertson Abattoir
(2017)
38 ILJ 121 (LAC) at paras 23 – 24.
[3]
Act 55 of 1998.
[4]
1998 (1) SA 300
(CC).
[5]
See
Janda
v First National Ba
nk
(2006) 27
ILJ
2627 (LC) at para 4;
Joubert
v Legal Aid South Africa
(2011) 32
ILJ
1921 (LC) at para 5;
Wallis
v Thorpe and Another
(2010) 31
ILJ
1254 (LC) at para 9;
Sihlali
v SA Broadcasting Corporation Ltd
(2010) 31
ILJ
1477 (LC) at para 4;
Bandat
v De Kock and Another
(2015)
36 ILJ 979 (LC) at para 4;
Mangena
and Others v Fila SA (Pty) Ltd and Others
(2010) 31 ILJ 662 (LC) at para 4.
[6]
2001 (1) SA 88
(SCA) at para 2.  See also
Robertson
Abattoir
(
supra
)
at para 17.
[7]
(2014) 35
ILJ
1329 (LC) at para 13.
[8]
(2015) 36 ILJ 979
(LC) at para 7.  Compare the evaluation of the evidence in
Du
Plessis v AMIC Trading (Pty) Ltd t/a Toys ’R US and Others
[2017] JOL 37944
(LC) at paras 26 – 39, conducted by the Court
in deciding to ultimately grant absolution from the instance (at
para 40
of the judgment).
[9]
(2017) 38 ILJ 121
(LAC) at para 24
[10]
(2013) 34
ILJ
671 (LC) at para 23.
[11]
See
Robertson
Abattoir
(
supra
)
at para 16;
Bandat
(
supra
)
at para 8;
Mouton
v Boy Burger (Edms) Bpk
(2011)
32
ILJ
2703 (LC) at 2709A-B;
Bedderson
v Sparrow Schools Education Trust
(2010) 31
ILJ
1325 (LC) at para 20
;
Schmahmann v Concept Communications Natal (Pty) Ltd
(1997)
18
ILJ
1333
(LC)
at 1337H-1338C;
Rockliffe
v Mincom (Pty) Ltd
(2007)
28
ILJ
2041
(LC)
at para 20.
[12]
(2006) 27
ILJ
2627 (LC) at para 5.
[13]
(2010) 31 ILJ 1152
(LC) at para 35.
[14]
EEA Amendment Act
47
of 2013.
[15]
(
supra
)
at paras 43 – 46.  These principles will be elaborated on
further, later in this judgment.
[16]
See
Department
of Correctional Services and Another v Police and Prisons Civil
Rights Union and Others
(2013)
34
ILJ
1375 (SCA) at para 21;
University
of South Africa v Reynhardt
(2010) 31
ILJ
2368 (LAC) at para 21.
[17]
Section 187(1)(f)
of the LRA provides that a dismissal based on the same grounds as
listed in Section 6(1) of the EEA is an automatic
unfair dismissal.
[18]
See
Biggar
v City of Johannesburg (Emergency Management Services)
(2017) 38 ILJ 1806
(LC) at para 34;
Duma
v Minister of Correctional Services and Others
(2016) 37 ILJ 1135 (LC) at para 21; SA Airways (
supra
)
at para 36;
SA
Municipal Workers Union and Another v Nelson Mandela Bay
Municipality
(2016) 37 ILJ 1203 (LC) at para 26;
Co-operative
Workers Association and Another v Petroleum Oil and Gas Co-operative
of SA and Others
(2007)
28
ILJ
627 (LC) at para 34.
[19]
Nombakuse
(
supra
)
at para 29.
[20]
(2011) 32
ILJ
2128 (LC) at para 24.
[21]
(2005) 26 ILJ 1404
(LC) at para 79.
[22]
(2011) 32 ILJ 2154
(LC) at para 40
[23]
(
supra
)
at para 14.  See also the analyses of the judgments relating to
the issue of the retrospectivity of a statute in paras
11 – 13
of the judgment in
Bandat
.
See also
Nelson
Mandela Bay Municipality
(
supra
)
at para 24;
Duma
v Minister of Correctional Services and Others
(2016)
37 ILJ 1135 (LC) at paras 22 – 23.
[24]
These listed grounds are set out
later in this judgment.
[25]
Act 61 of 2003.
[26]
Act 39 of 2004.
[27]
[1997] ZASCA 110
;
1998 (1) SA 606
(SCA) at 614B-D.
[28]
(2000) 21 ILJ 142
(LAC) at para 83.  See also
Shoredits
Construction (Pty) Ltd v Pienaar NO and Others
[1995] 4 BLLR 32
(LAC) at 34C-F.
[29]
(2011) 32 ILJ 2078
(LAC) at para 21.
[30]
See
Zondo
and Others v St Martin’s School
(2015)
36 ILJ 1386 (LC) at para 10;
ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman No and Others
(2013) 34 ILJ 2347 (LC) at para 67.
Lowies
v University of Johannesburg
(2013)
34 ILJ 3232 (LC) at para 29;
Chemical
Energy Paper Printing Wood and Allied Workers Union and Others v CTP
Ltd and Another
(2013) 34 ILJ 1966 (LC) at para 105.
[31]
The amended
Section 6(1) now reads, in full, as follows:
:
‘No person may unfairly discriminate, directly or indirectly,
against an employee, 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,
birth or
on any other arbitrary ground.’
[32]
Section 6(4)
reads:
“
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.’
[33]
See para 24 (
supra
).
[34]
(2010) 31 ILJ 662
(LC) at para 5.  See also
Louw
v Golden Arrow Bus Services (Pty) Ltd
(2000)
21 ILJ 188 (LC)
at
196F.
[35]
(2016) 37 ILJ 1135
(LC) at paras 20 – 21 and 23.
[36]
See
Ntai
(
supra
)
at para 73;
Public
Servants Association of South Africa v Minister: Department of Home
Affairs and Others
[2013] 3 BLLR 237
(LAC) at para 55.
[37]
(2002) 23 ILJ 2088
(LC) at para 19.
[38]
(
supra
)
at para 7.
[39]
1997 (3) SA 1012
(CC) at para 17.
[40]
Id at para 25.
[41]
See paras 26 and 27 of the judgment.
[42]
(2015) 36 ILJ 1805
(CC).
[43]
Id at paras 26 – 27.
[44]
(2016) 37 ILJ 2872
(LC) at para 35.
[45]
(2008) 29 ILJ 2919
(LC) at para 17.
[46]
Compare
Ekhamanzi
Springs (Pty) Ltd v Mnomiya
(2014)
35 ILJ 2388 (LAC) at para 19.
[47]
See
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004
(6) SA 222
(SCA) at para 26;
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
t/a Eye and Lazer Institute
2014
(3) SA 481
(CC) at para 103;
Manok
Family Trust v Blue Horison Investments 10 (Pty) Ltd and Others
2014 (5) SA 503
(SCA) at para 17;
Camps
Bay Ratepayers' and Residents' Association and Another v Harrison
and Another
2011 (4) SA 42
(CC) at para
62;
Seale v Van Rooyen NO and Others; Provincial Government, North West
Province v Van Rooyen NO and Others
2008
(4) SA 43
(SCA)
at
para 14;
Maluti-A-Phofung
Local Municipality v Rural Maintenance (Pty) Ltd and Another
(2016) 37 ILJ 128 (LAC) at para 17.
[48]
I therefore see no need to consider
or decide the applicants’ arguments about what the Air Quality
Act and the National
Health Act requires or prescribes.
Suffice it to say, and after having read both these statutes, I am
in any event not
convinced that a PCO post cannot be created under
the auspices of the Air Quality Act, and that pollution control can
only be
done under the National Health Act.
[49]
As promulgated by
way of
GN
448
in
GG
38837 of 1 June 2015, in terms of Section 54 of the EEA.
[50]
See sub clauses 5.4.1 – 5.4.4.
[51]
(
supra
)
at para 15.
[52]
(
supra
)
at para 26.
[53]
(
supra
)
at para 53.
[54]
2017 (3) BCLR 267
(CC) at paras 297 – 298.
[55]
(
supra
)
at para 55.  See also
City
of Cape Town
(
supra
)
at para 81;
Fila
SA
(
supra
)
at para 5.
[56]
(2006) 27 ILJ 2696
(LC) 25.  See also
Gabriels
(
supra
)
at para 18.
[57]
(2009) 30 ILJ 2875
(LAC) at para 23.
[58]
(2017) 38 ILJ 483
(LC) at para 54.
[59]
(
supra
)
at para 72.
[60]
(
supra
)
at para 82.
[61]
(
supra
)
at para 26 – 27.
[62]
(2007) 28 ILJ 2019
(LC) at para 18.
[63]
(
supra
)
at para 74.  See also
Pioneer
Foods
(
supra
)
at paras 63-64.
[64]
(
supra
)
at paras 22-23.
[65]
Both judgments are referred to
earlier in this judgment.
[66]
(2014) 35 ILJ
1329 (LC) at para 36.  See also See also
Wallis
v Thorpe and Another
(2010) 31 ILJ 1254 (LC) at para 16.