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[2017] ZALCCT 12
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Ndudula and Others v Metrorail PRASA (Western Cape) (C1012/2015) [2017] ZALCCT 12; [2017] 7 BLLR 706 (LC); (2017) 38 ILJ 2565 (LC) (30 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: C1012/2015
In
the matter between:
S
NDUDULA & 17
OTHERS
APPLICANT
and
METRORAIL
– PRASA (WESTERN
CAPE)
RESPONDENT
Heard:
28 February 2017
Delivered:
30 March 2017
Summary:
Employment Equity Act 55 of 1998
–
section 6(1)
– interpretation of phrase “… or any
other arbitrary ground” – new grounds or analogous or
unlisted
grounds
Unfair Discrimination – wages
– error in remuneration of newly appointed employees –
error corrected – whether
unfair discrimination
Discrimination
– listed and analogous grounds – relevant for burden of
proof – need to plead ground for unfair
discrimination “…
on any other arbitrary ground”
JUDGMENT
COETZEE
AJ
Introduction
[1]
The applicants are all section managers
employed by the respondent.
[2]
The parties exchanged pleadings in the form
of a statement of case and a statement of defence; agreed to and
submitted a pre-trial
minute followed by an agreed statement of the
relevant facts.
[3]
The facts therefore were not in dispute.
The
background
[4]
The respondent with effect from 1 January
2014 promoted and appointed two more employees as section managers.
The applicants were
aggrieved because these two newly appointed
section managers were appointed on a higher salary or scale of
remuneration than that
of the applicants.
[5]
The applicants lodged three group
grievances on 1 December 2014, 9 December 2014 and 27
January 2015. The grievances were
not resolved and the applicants
referred the matter to the CCMA on 5 August 2015.
[6]
The respondent on 17 August 2015 by letter
informed the two section managers that their salaries had been
reviewed and that they
had been appointed at an incorrect scale (the
correction). They were further informed that their salaries were to
be reduced to
the correct scale effective from 1 September 2015.
[7]
The parties further agreed as follows:
“
This
correction was implemented on the basis that the amount by which they
had been overpaid would not be recovered from them, which
decision
was based on the fact that a precedent had been set when, in similar
circumstances, employees, with the assistance of
legal advisers
negotiated a settlement on such basis with the respondent.”
[8]
The applicants pleaded their discrimination
case as follows:
“
The
Individual Applicants are performing the same work as the two newly
appointed Section Managers and despite having longer years’
of
service, they are being paid substantially less than the newly
appointed section managers. The individual Applicants have been
and
are being discriminated against regarding the different terms and
conditions of employment for a reason unknown to them. Whatever
the
reason are (sic) as may be advanced by the Respondent, the different
treatment of employees who performs (sic) the same work
and there
being no other justifiable reasons for such differentiation amounts
to an act of direct discrimination or alternatively
to indirect
discrimination. Newly appointed employees are enjoying more
substantial terms and conditions of employment for no other
reason
(s) than that they are newly employed employees.”
[1]
[9]
The applicants formulated the relief they
sought as based on their cause of action as follows:
“
The
individual Applicants are seeking an order that the Respondent must
remunerate them and provide to them the same terms and conditions
of
employment as the two newly appointed Section Managers retrospective
to January 2014, as well as an order that all Section Managers
must
be remunerated on the same basis. Alternatively the individual
Applicants are seeking an order that they be paid the difference
in
remuneration for the same period that the two newly appointed Section
Managers were paid such a higher remuneration package.
In the
alternative, the individual Applicants are seeking compensation in an
amount to be determined by the Court for having been
discriminated
against. The individual Applicants also seek an order that the
Respondent must pay the individual applicant's legal
costs.”
[2]
[10]
During oral argument the applicants limited
the relief they seek to payment of a lump sum as compensation to each
of them. They
pursued with their claim for a cost order in their
favour.
[11]
The
respondent admitted that it appointed the two section managers at a
higher salary scale. The respondent denied that the facts
and
circumstances pleaded by the applicants, amount to unfair
discrimination as contemplated by the
Employment Equity Act.
>
[3]
[12]
The respondent’s defence became
evident in the pre-trial conference. The pre-trial conference minute
records that the applicants
were advised that a mistake had been made
in the salary scale at which the two section managers were appointed.
The pre-trial minute
contains no reference to the correction.
[13]
According to the applicants they were
advised of the correction only during January 2017. They submit that
this should be taken
into account for purposes of a cost order.
Having been advised of the correction only shortly before the
hearing, they resolved
to pursue relief only in the form of
compensation, coupled with a cost order.
[14]
Having regard to the pleadings and the
agreed facts, it is common cause between the parties that the two
section managers were appointed
by mistake on the higher scale and
that approximately 20 months later with effect from 1 September 2015
the error had been corrected
and the remuneration paid to them
adjusted downwards.
[15]
The factual position that is common cause
between the parties, thus is that two section managers were
appointed, in error, on a
higher scale than that enjoyed by the
applicants; the error was corrected with effect from 1 September 2015
and the additional
remuneration that the two received while on the
higher scale was not refunded to the respondent by them because of an
earlier precedent
that the respondent felt to be binding on it.
The
cause of action
[16]
The applicants did not in their statement
of case or in oral argument rely on any listed ground in
section 6(1)
of the EEA.
[17]
The applicants also did not plead or argue
reliance on any ground analogous to the listed grounds.
[18]
They submitted that their case falls
squarely within the ambit of
section 6(1)
of the EEA and more
particularly on “…
or on any
other arbitrary ground
”.
[19]
Their case is that because reliance is
placed on this part of
section 6
, it is not necessary to specify
a specific ground as the conduct of the respondent inherently
constituted arbitrariness. If the
case for the applicants is
understood correctly the alternative argument advanced on their
behalf is that they have in fact identified
and pleaded the ground
for discrimination upon which they rely and that ground is that the
conduct of the respondent was arbitrary.
The
EEA
[20]
It is necessary to examine the provisions
of the EEA dealing with the prohibition against direct or indirect
unfair discrimination
before dealing with the submissions of the
parties in more detail. The following are the relevant provisions of
the EEA:
1.1.
Section 6(1)
of the EEA provides 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, ethnical social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscious,
belief, political opinion, culture, language, birth
or
on any other arbitrary ground.
[4]
”
(Emphasis added.)
1.2.
The grounds listed in
section 6(1)
are
referred to as the “listed grounds”.
1.3.
The newly enacted
section 6(4)
added the
following provision to
section 6:
“
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.”
1.4.
The onus to prove discrimination
generally is dealt with in
section 11
that provides as follows:
“
(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.” (Emphasis added.)
[21]
As regards onus, the applicants rightly
conceded that the onus rests with them having regard to
section 11(2)
to prove the existence of the alleged discrimination and that such
discrimination is unfair.
[22]
It is significant that the amendment to
section 6(1)
upon which the applicants rely was only introduced
during August 2014 while the offensive appointment had already
occurred during
April 2014.
[23]
The respondent, however, did not place in
dispute the application of the amended
section 6(1)
or
section 6(4).
Both parties argued their cases on the basis that the amended
section
6(1)
applied.
[24]
It is not necessary to make a finding in
this regard (whether the amendment had retrospective effect) and for
purposes of this judgment
it is assumed that the amended section
applied from August 2014 for the duration of the period during which
the two newly appointed
section managers enjoyed the higher income.
The
submissions of the applicants
[25]
The applicants argue that there was
differentiation and such wage differentiation was arbitrary and
simply because it was arbitrary
it constituted unfair discrimination.
[26]
They argue that it was not necessary to
plead any specific arbitrary ground. During oral argument the
submission was made, that
as pleaded, the ground was identified and
formulated with sufficient clarity. The applicants’ argument in
its heads of argument
is captured as follows:
“
It
is respectfully submitted that the Respondent’s behaviour in
allowing newly appointed employees,
albeit
due to a promotion from train drivers to Section Managers,
constitutes wage discrimination on an arbitrary ground. This is
especially
so given the manner in which the Respondent dealt with the
grievances and the inadequate outcomes to the grievances”
[27]
In support of this submission the
applicants further submit that before the amendment that introduced
“...
or on any other arbitrary
ground
” (and at the same time
introduced
section 6(4))
, the legal position in any event was that
unfair discrimination could occur in respect of a listed ground or
any ground analogous
to the listed grounds. For that reason, there
was no need to introduce the addition to
section 6(1)
catering
for a ground analogous to the listed grounds. That was already
catered for and covered by the section. The purpose could
only have
been to add a further category of grounds or introduce something new
as grounds upon which an employer could unfairly
discriminate against
an employee.
[28]
Their submission, therefore, is that after
the amendment there are three categories of grounds constituting
unfair discrimination.
Those categories are discrimination: on a
listed ground; on a ground analogous to a listed ground; and thirdly
on any other arbitrary
ground.
[29]
The applicants submit that similarly it was
not necessary merely to add
section 6(4)
to restate the legal
position pertaining to claims of wage discrimination.
[30]
They submit that prior to the amendment it
had been possible to rely upon unfair wage discrimination on a listed
ground or any ground
analogous to the listed grounds. The amendment
of these two subsections could only have been to introduce a new
ground or grounds
upon which employees could rely for a claim that
the employer unfairly discriminated against them.
[31]
For that reason it was necessary to
introduce
section 6(4)
with a reference to
section 6(1)
so as to
include the reference to
any other
arbitrary ground
to broaden the scope
of direct or indirect wage discrimination.
[32]
The
applicants for their legal argument rely on part of the judgment in
Pioneer
Foods (Pty) Ltd v Workers Against Regression and Others
[5]
where reference is made to a discussion by Du Toit:
[6]
“
The
reintroduction of the prohibition of discrimination on ‘arbitrary’
grounds cannot be understood as merely reiterating
the existence of
unlisted grounds, which would render it redundant. To avoid
redundancy, ‘arbitrary’ must add something
to the meaning
of ‘unfair discrimination’. Giving it the meaning
ascribed to it by Landman J in
Kadiaka
[7]
– that is, ‘capricious’ or for no good reason –
would broaden the scope of the prohibition of discrimination
from
grounds that undermine human dignity to include grounds that are
merely irrational without confining it to the latter.
”
[33]
Notably, the applicants did not believe or
plead that the respondent acted “capriciously” or for “no
good reason”.
[34]
The Court in
Kadiaka
referred to the view of Du Toit without adopting the argument. This
view is not part of the reasoning for the finding in
Pioneer
Foods
.
[35]
The applicants further rely upon the
Court’s reference in
Pioneer Foods
to the other authorities mentioned in the
Pioneer
Foods
decision. They are analysed below
to the extent that they are relevant.
The
case for the respondent
[36]
The respondent submits that
section 6(4)
provides unambiguously that it is only a differentiation that is
directly or indirectly based on any one or more of the grounds
listed
in
section 6(1)
that is considered to be unfair discrimination in
terms of that particular section.
[37]
Inherent in this argument is the contention
that
section 6(1)
has two components; firstly, unfair discrimination
on the basis of listed grounds, and, a second part that refers to
other grounds.
The argument goes that—
“…
any
one or more of the grounds listed in subsection (1) refers to
grounds
,
that is the listed grounds and unlisted grounds only in so far as
they are analogous to the listed grounds as incorporated by
“…
any
other arbitrary ground
”.
The argument is that “…
any
other arbitrary ground
”
is not in itself a ground but refers to any unlisted grounds
analogous to the listed grounds.”
[38]
The respondent further submits that the
question is straightforward and it is: have the applicants pleaded
reliance, directly or
indirectly, on one or more of the grounds
listed in
section 6(1)?
The respondent submits that clearly they did
not plead any of the specific grounds mentioned in
section 6(1)
or a ground analogous to the listed grounds and have to rely on the
reference to “…
any other
arbitrary ground
” as the actual
ground for discrimination.
[39]
The respondent submits that in this case
the alleged differentiation must be linked to a listed ground or
analogous ground and that
it is required of the applicants to plead
and identify such ground.
[40]
Once the applicants rely upon an arbitrary
ground which is not a listed ground but an analogous one (or an
arbitrary one in the
third category – which it does not concede
exists) it is still incumbent upon the applicants to state and plead
the “
arbitrary
”
ground. “
Arbitrary ground
”
still requires the ground alleged to be arbitrary to be formulated
and pleaded. “
Arbitrary
”
in itself is not a ground.
[41]
The crux of the respondent’s argument
is that “…
any other
arbitrary ground
” is nothing more
than clarifying the legal position as it was prior to the
introduction of the amendment.
[42]
According to the respondent an arbitrary
ground is nothing more and nothing less than a ground analogous to a
listed ground in respect
whereof applicants must comply with
section
11(2)
by proving that the conduct complained of “
is
not rational
”; and that it
“
amounts to discrimination
”;
and that the discrimination is “
unfair
”.
[43]
In response to this argument, applicants in
oral argument conceded that if it is the case that it must be pleaded
then the error
on the part of the respondent constitutes such a
ground that is arbitrary. That, however, according to the respondent,
is not how
and what the applicants pleaded. They did not plead that
“
error
”
constitutes an arbitrary ground as contemplated in
section 6(1).
[44]
The
respondent, amongst others, relies upon
National
Union of Metalworkers of SA and Others v Gabriels Pty Ltd
[8]
for the submission that applicants have not in their statement of
case identified the ground upon which they rely and that as a
result
of this failure alone their case should fail:
“
Where
the differential treatment is not based on a listed ground, it is not
sufficient merely to allege that the employment policy
or practice in
question is arbitrary;
the
complainant must allege and prove that the policy and practice is
based on an analogous ground to the listed ground.
What
is therefore required, is that a complainant must clearly identify
the grounds relied upon and illustrated 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
.”
[45]
It is
pointed out in
Gabriels
that a failure to link an alleged differentiation to any of the
section 6(1)
listed or analogous grounds, is likely to result in
incorrectly equating mere differentiation with unfair
discrimination.
[9]
The submission is that even if a third category had been created the
principle still applied that the ground itself had to be pleaded.
[46]
The respondent further submits that the
following passages from
Gabriels
can be applied almost
verbatim
to
this matter:
“
It
is clear from the above, and on a reading of the applicants’
statement of case, as amplified, that the applicants have
not
described the differential treatment in question to any ground
analogous to the listed grounds in
section 6(1)
of the EEA. The
applicants have failed to allege that the reason for the
differentiation is some characteristic that impacts upon
the human
dignity. They do no more than an 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,
or direct
unfair discrimination, within the meaning of section
6(1)
of the
EEA.”
[10]
[47]
The respondent would be correct in its
submission if the addition to
section 6(1)
has not created a
third category of grounds disassociated from the listed grounds and
those analogous to the listed grounds. If
no such third category had
been created, then the above dictum would apply.
Analysis:
An interpretation of the EEA
[48]
The parties rely upon an interpretation of
section 6(1)
and
section 6(4)
for their submissions. They have
not relied upon any direct authority, and I could not find any
either, on whether the reference
to
an
arbitrary ground
in
section 6(1)
is a
reference to a new category of grounds over and above the listed
grounds and the grounds analogous to the listed grounds.
[49]
It is necessary first to deal with the
approach to the interpretation of a statute before an attempt is made
to actually interpret
section 6(1)
and
section 6(4).
The
approach to interpretation
[50]
The modern day approach to interpretation
was restated by the Supreme Court of Appeal (the SCA) in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
as follows:
“
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever
the nature of the document, consideration must be given to the
language used in the light of the ordinary rules of grammar
and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material known to
those
responsible for its production.
Where more than one meaning is possible each possibility must be
weighed in light of all these factors. The process is objective
not
subjective. A sensible meaning is to be preferred to one that leads
to insensible or un-businesslike results or undermines
the apparent
purpose of the document. Judges must be alert to, and guard against,
the temptation to substitute what he regards
as reasonable, sensible
or businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is
to cross the divide between
interpretation and legislation. In a contractual context it is to
make a contract for the parties rather
than the one they in fact
made. The “inevitable point of departure is the language of the
provision itself” read in
context and having regard to the
purpose of the provision and the background to the preparation and
production of the document.”
[11]
(Emphasis
added.)
[51]
In
Bothma-Batho
Transport (Edms) v S Bothma & Seun (Edms) Bpk
[12]
with reference to the traditional “golden rule” approach
to interpretation,
[13]
the SCA held:
“
That
summary is no longer consistent with the approach to interpretation
now adopted by South African courts in relation to contracts
or other
documents, such as statutory instruments or patents.
Whilst
the starting point remains the words of the document, which are the
only relevant medium through which the parties have expressed
their
contractual intentions, the process of interpretation does not stop
at a perceived literal meaning of those words, but considers
them in
the light of all relevant and admissible context, including the
circumstances in which the document came into being. The
formal
distinction between permissible background and surrounding
circumstances, never very clear, has fallen away. Interpretation
is
no longer a process that occurs in stages but is “essentially
one unitary exercise”
.
Accordingly it is no longer helpful to refer to the earlier
approach.” (Footnotes omitted and e
mphasis
added.)
Interpreting
section 6
having regard to the language of the EEA and that of the
specific provision
[52]
The phrase “
or
any other arbitrary ground
” lends
itself, read in isolation, to the two possible interpretations
accorded thereto by the parties. It is conceivable
that this phrase
may mean that “
any other arbitrary
ground
” is limited to a ground
analogous to the listed grounds only. It is also conceivable that it
creates a new category of grounds
as contended for by the applicants.
[53]
The amended and more comprehensive
section
11
of the EEA now distinguishes between listed and arbitrary grounds
in respect of the burden of proof. Notably it does not distinguish
between listed grounds, grounds analogous to the listed grounds and
in addition to any other arbitrary ground.
[54]
This
distinction between a
listed
ground
and an
arbitrary
ground
points to the legislature dealing with only two categories of
grounds. The first category is the listed grounds. All other
grounds
recognised in law are for purposes of this section arbitrary in
nature. Those are the grounds analogous to the listed grounds
as
contemplated in
Harksen
v Lane NO & Others
.
[14]
Otherwise one would have expected the drafters of the statute to make
provision for the burden of proof in respect of three categories
of
grounds.
Having
regard to the statutory context of
section 6
[55]
Section 6(1)
of the EEA prior to the
amendment loosely mirrored section 9(3) of the Constitution. It
is necessary to quote section 9 of
the Constitution in full:
“
Equality
9(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote
the achievement of equality, legislative and
other measures designed to protect or advance persons, or categories
of persons, disadvantaged
by unfair discrimination may be taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one
or more grounds, including race, gender, sex,
pregnancy, parietal status, ethnic or social origin, colour, sexual
orientation,
age, disability, religion, conscience, belief, culture,
language and birth.
(4)
No person may unfairly discriminate directly or indirectly against
anyone on one or
more grounds in terms of subsection (three).
National legislation must be enacted to prevent or prohibit unfair
discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection (3)
is unfair unless
it is established that the discrimination is fair.”
[56]
The Labour Court in
Gabriels
commented as follows on the similarity between the provisions of the
Constitution and section 6 of the EEA:
“
Because
of the similarity between section 6(1) of the EEA and section 9(3)
of the Constitution, guidance can be sought from
the decisions handed
down by the Constitutional Court in determining when differentiation
which is not based on any of the grounds
listed in section 6(1), will
amount to discrimination.”
[15]
[57]
A further reason why regard may be had to
the judgments dealing with the Constitution is the provision in
section 3 of the EEA stating
that:
“
This
act must be interpreted—
(a)
in compliance with the Constitution;
(b)
so as to give effect to its purpose.”
[58]
At
the same time the Constitution states that when interpreting any
legislation, and when developing the common law or customary
law,
every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.
[16]
[59]
The
Court in
Gabriels
,
[17]
with approval, quoted the following test from
Harksen
[18]
where
the Constitutional Court established a two pronged test for
determining whether differentiation between people or categories
of
people amounted to unfair discrimination:
“
(i)
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 has been discrimination will depend upon
whether, objectively,
the grounds are based on attributes and characteristics which have
the ability to impair the fundamental
human dignity of persons as
human beings or to affect them adversely in a comparably serious
manner.
(ii)
If the differentiation amounts to “discrimination” does
it amount to “unfair discrimination”? If it
has been
found to be on a specified ground, then unfairness will be presumed.
If on an unspecified ground, unfairness will have
to be established
by the complainant. The test of unfairness focuses primarily on the
impact of the discrimination on the complainant
and others in his
situation.”
[60]
The
Court went on to say that it is clear from the
Harksen
decision that the discrimination in the constitutional sense, takes
on a pejorative meaning, which must be established by any complainant
relying on an unspecified ground.
[19]
[61]
The following passage in gives content to
the kind of ground that will have to be linked to the differential
treatment by the complainant,
in order to succeed in establishing
that the discrimination has taken place:
“
What
the specified grounds have in common is that they have been used (or
misused) in the past (both in South Africa and elsewhere)
to
categorise, marginalise and often oppress persons who have had, who
have been associated with, these attributes or characteristics.
These
grounds have the potential, when manipulated, to demean persons in
their inherent humanity and dignity. There is often a
complex
relationship between these grounds, attributes or characteristics, in
some to the associational life of humans, in some
to the
intellectual, expressive and religious dimensions of humanity and in
some cases to a combination of one or more of these
features. The
temptation to force them into neatly self-contained categories should
be resisted. Section 8 (2) seeks to prevent
the unequal treatment of
people based on such criteria which may, amongst other things, result
in the construction of patterns
of disadvantage such as has occurred
only too visibly in our history.”
[20]
[62]
There is yet a further reason why section 6
of the EEA should be interpreted against the backdrop and in the
context of the Constitution.
The EEA is the legislation contemplated
in section 9 of the Constitution. It gives effect to section 9.
[63]
The interpretation of section 9 of the
Constitution by the Constitutional Court and other courts throw light
on not only section
9 but also on the interpretation of section 6 of
the EEA.
[64]
Section
9(1) deals with all differentiations. Sections 9(3) and 9(4) deal
with a specific form of differentiation, namely unfair
discrimination. In this way, two forms of differentiation are
distinguished, namely, as formulated in
Prinsloo
v Van der Linde
:
[21]
“
The
idea of differentiation (to employ a neutral descriptive term) seems
to lie at the heart of equality jurisprudence in general
and of the
section 8 right or rights in particular. Taking as comprehensive a
view as possible of the way equality is treated in
section 8, we
would suggest that it deals with differentiation in basically two
ways: differentiation which does not involve unfair
discrimination
and differentiation which does involve unfair discrimination.”
[65]
The reference to section 8 is to the
interim Constitution which was the equivalent of section 9 of the
Constitution now regulating
equality.
[66]
The
distinction between differentiation which does not involve unfair
discrimination and differentiation which does involve unfair
discrimination is not a distinction between two completely separate
things. It simply is a distinction between a component of a
general
category of differentiation and the rest of the general category.
Differentiation that does not amount to unfair discrimination
constitutes a residual and not a distinctive category.
[22]
[67]
The
Constitutional Court in interpreting the equality provision
elaborated that unfair discrimination is mere differentiation with
the addition “
of
a further element
”.
[23]
The “
further
element
”
involves the impact of the differentiation. Mere differentiation has
less serious consequences than unfair discrimination
as a form of
differentiation and thus different tests must be applied to determine
whether the differentiation is justifiable in
order to give effect to
the principle that the “
more
substantial the inroad to fundamental rights, the more persuasive the
grounds of justification must be
”.
[24]
[68]
Nobody may unfairly discriminate against
anyone else on one or more of the grounds listed in section 9(3). In
this context, logically
the word “
grounds
”
refers to the distinguishing features on the basis of which a
distinction or differentiation is made. In section 9(3) the
word
“
grounds
”
does not refer to the reasons or purposes of a differentiation but
the distinguishing features on the basis of which the
differentiation
is made.
[69]
Also in the absence of a definition in the
Constitution of “
unfair
discrimination
” the
Constitutional Court held that unfair discrimination is
differentiation that violates human dignity or differentiation
with
similar serious consequences. In
Prinsloo
the Court held that:
“
Where
discrimination results in treating persons differently in a way which
impairs their fundamental dignity as human beings, it
will clearly be
a breach of section 8(2). Other forms of differentiation, which in
some other way affect persons adversely in a
comparably serious
manner, may well constitute a breach of section 8(2) as well.
”
[25]
[70]
In
Harksen
[26]
the Court in dealing with the listed and unlisted grounds in more
detail said the following:
“
It
is also unnecessary for purposes of the present case, save that I
would caution against any narrow definition of these terms.
What the
specified grounds have in common is that they have been used (or
misused) in the past (both in South Africa and elsewhere)
to
categorise, marginalise and often oppress persons who have had, or
who have been associated with, these attributes or characteristics.
These grounds have the potential, when manipulated, to demean persons
in their inherent humanity and dignity. There is often a
complex
relationship between these grounds. In some cases, they relate to
immutable biological attributes or characteristics, in
some to the
associational life of humans, in some to the intellectual, expressive
and religious dimensions of humanity and in some
cases to a
combination of one or more of these features. The temptation to force
them into neatly self-contained categories should
be resisted.
Section 8(2) seeks to prevent the unequal treatment of people based
on such criteria which may, amongst other things,
result in the
construction of patterns of disadvantage such as has occurred only
too visibly in our history.”
[71]
It needs to be said that it is obvious that
the Constitution merely creates a presumption of unfair
discrimination when the differentiation
is based on a listed ground.
[72]
"A
discriminator can rebut the presumption by proving that in the
particular case, the differentiation has not had the effect
of
impairing human dignity or a similar effect.
[27]
In the case of unlisted grounds the complainant must prove both that
differentiation on the unlisted ground (a) has the potential
to
impair human dignity or has a similar adverse effect
[28]
which the Constitutional Court then in
Harksen
calls “
discrimination
”
and must further (b) prove that it indeed had such consequences which
would then constitute “
unfair
discrimination
”.
[29]
[73]
The
crux of the test for unfair discrimination is the impairment of human
dignity or an adverse effect in a comparably similar manner,
not the
classification of the ground as listed or unlisted as is evident from
the quotation from
Harksen
.
[30]
The constitutional distinction between listed and unlisted grounds
affects only the burden of proof and nothing else.
[31]
Differentiation on both a listed and analogous ground amounts to
unfair discrimination only if the differentiation has indeed
affected
human dignity or has had an adverse effect in a similar serious
consequence
.
[32]
[74]
This means that the test for unfair
discrimination is the same for differentiation on both listed and
unlisted grounds. That being
the case unfair discrimination on listed
and unlisted grounds, respectively, are not different forms of unfair
discrimination.
The Constitution does not render differentiation on a
listed ground automatically unfair.
[75]
Rautenbach
and Fourie correctly point out that section 9(5) of the Constitution
clearly implies that the presumption that a differentiation
on a
listed ground as unfair discrimination may be rebutted and in the
case of differentiation on an analogous ground, once established
by
the victim, may similarly be rebutted or may be shown as not
unfair.
[33]
[76]
The conclusion to this reasoning is that
unfair discrimination may occur on a listed or unlisted ground. The
common factor is that
the differentiation must affect human dignity
or must have a similar serious consequence. The distinction between
listed grounds
and analogous grounds is one that finds application
only with regard to the burden of proof, both in the Constitution and
in section
6.
[77]
A
further principle is that
all
differentiations
(including unfair discrimination) may not be “
arbitrary
”
in the sense that they do not serve a legitimate purpose as
contemplated in
Prinsloo
:
[34]
“
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.”
(Emphasis added and footnotes omitted.)
[78]
In this context “
rationality
”
relates not to the wisdom or reasonableness of the average employer
or the soundness of differentiations in general but
to the relation
between the differentiation and the legitimate purpose. This basic
requirement of rationality means also that arbitrariness
is and must
be common to unfair discrimination. Unfair discrimination on the
other hand may be permissible if it is not arbitrary
and has a
legitimate purpose. Such a legitimate purpose does not immediately
spring to mind. Such a legitimate purpose can possibly
be the case
when the purpose of the differentiation involves the protection of
the human dignity of others or the protection of
other rights, the
limitation of which automatically involves the disparagement of human
dignity.
[79]
The
Constitutional Court also in
Mhlongo
v S; Nkosi v S
[35]
emphasised that any differentiation (and not only unfair
discrimination) must be evaluated in terms of section 9(1) to ensure
that it is rational, that is, it cannot be arbitrary:
“
The
differentiation must be evaluated in terms of s 9(1) of the
Constitution. This Court has held that a distinction made in the
law
will contravene s 9(1) if it is irrational. The purpose of this is to
ensure that the state functions in a rational manner,
in order to
enhance the coherence and integrity of the law. This is essential to
the rule of law — the fundamental premise
of the constitutional
state.
It
must be ascertained whether the differentiation complained of is
rationally connected to the achievement of a legitimate government
purpose, as opposed to being arbitrary or capricious.”
[36]
(Footnotes omitted.)
[80]
The inescapable conclusion is that the
Constitution requires that any and all differentiation may not be
arbitrary but must be rationally
connected to a legitimate purpose.
In the case of differentiation that constitutes unfair discrimination
the underlying basis is
that it is arbitrary and in addition it
impacts upon human dignity (and has no legitimate purpose).
Or
any other arbitrary ground
[81]
Parliament’s reasons for adding this
phrase to section 6(1) are not clear. This section, prior to its
amendment, listed the
grounds as being included — meaning that
it was not a closed list. The same argument is valid in respect of
section 9(3)
of the Constitution where the word “
including
”
is used to indicate that the listed grounds are not a closed list.
[82]
The
courts in the majority of cases in which section 6(1) was applied
dealt with listed grounds. There are however various matters
that
served before courts on unlisted grounds such as citizenship,
[37]
HIV status,
[38]
medical condition
[39]
and others.
[83]
Where the courts considered claims based on
unlisted grounds, they referred thereto as unlisted or analogous
grounds. Since the
word “
including
”
in both section 6(1) of the EEA and section 9(3) of the Constitution
have been interpreted to cover unlisted grounds, it
wasn’t
necessary to pass the amendment to clarify that discrimination is not
only permitted on the grounds listed in section
6(1) but also on any
other arbitrary ground. The explanatory memorandum provided this
reasoning, that section 6(1) does not only
cover unlisted grounds but
also other arbitrary grounds, as one reason for the introduction of
“
any other arbitrary ground
”.
[84]
The
second reason proffered in the explanatory memorandum is to bring
section 6(1) in line with the formulation in section 187(1)(f)
of the Labour Relations Act.
[40]
This section provides that a dismissal is automatically unfair:
“
.
. .
if
the reason for the dismissal is—
.
. .
(f)
that the employer unfairly discriminated against an employee,
directly or indirectly,
on any arbitrary ground, including, but not
limited to race, gender, sex, ethnic or social origin, colour, sexual
orientation,
age, disability, religion, conscience, belief, political
opinion, culture, language, marital status or family responsibility.”
[85]
The amended section 6(1) is not, as far as
its formal formulation is concerned, identical with section 187(1)(f)
as the latter section
employs a general description followed by
examples of what the general description of “
arbitrary
grounds
” includes in contrast to
the amended section 6 that sets the various listed grounds and added
“
or on any other arbitrary ground
”
as an incidence of the general description.
[86]
The
contention of Du Toit
[41]
seems correct that because the courts have held that the test for an
arbitrary ground which is not listed in section 187(1)(f)
is the
same as the test for an analogous ground in section 9(3) of the
Constitution, “arbitrary ground” in section 187(1)(f)
must be considered to have the same meaning as an unlisted ground in
section 9(3) of the Constitution and in section 6 of
the EEA
before its amendment.
[87]
When
the amended section 6(1) is interpreted contextually with the amended
section 11(2), “arbitrary ground” in the
phrase “on
any other arbitrary ground” refers to an unlisted ground. The
Labour Appeal Court in considering an alleged
automatically unfair
dismissal based on section 187(1)(f) in
New
Way Motor & Diesel Engineering (Pty) Ltd v Marsland
[42]
held that “arbitrary ground” in section 187(1)(f) must be
considered to have the same meaning as an unlisted ground
in
section 9(3) of the Constitution and in section 6 of the EEA
before its amendment:
“
It
is not strictly necessary to decide whether the concept of
“disability” as set out as a ground in section 187(1)(f)
describes the condition suffered by respondent. The uncontested
evidence of the respondent supported by a letter from his
psychiatrist
does support such a conclusion in that he had suffered
from depression. The description of depression is also set out in his
statement
of case. Depression is a form of mental illness (see
Diagnostic
and Statistical Manual of Mental Disorders IV
).
But, even were his condition not to be considered a form of
disability as set out in section 187(1)(f), unquestionably the
discrimination
suffered by respondent as a result of his “mental
health problem” had, in the words of Stein AJ, “the
potential
to impair the fundamental dignity of that person as a human
being or to affect him in a comparably serious manner.”
Expressed
differently, the question can be posed thus: did the conduct of the
appellant impair the dignity of the respondent; that
is, did the
conduct of the appellant objectively analysed on the ground of the
characteristics of the respondent, in this case
depression, have the
potential to impair the fundamental human dignity of respondent? See
for the source of this approach,
Harksen
v Lane NO
[1997] ZACC 12
;
1997 (11) BCLR 1489
(CC);
Hoffmann
v South African Airways
[2000] ZACC 17
;
2001 (1) SA 1
(CC).
In
my view, the question must be answered affirmatively. The conduct of
appellant clearly constituted an egregious attack on the
dignity of
respondent and accordingly falls within the grounds set out in
section 187(1)(f) of the Act.”
[43]
[88]
When
Parliament intended to bring section 187(1)(f) of the LRA and
section 11 of the EEA in line, it must have done so having
regard to the interpretation of section 187(1)(f) in
New
Way Motor & Diesel Engineering (Pty) Ltd v Marsland
[44]
.
[89]
The
applicants have, as pointed out earlier, submitted that the insertion
of this phrase in section 6(1) introduced a new approach
and that
there are now three sets of grounds upon which unfair discrimination
can take place. This interpretation is favoured by
Du Toit.
[45]
This approach is not favoured by Le Roux.
[46]
[90]
Du
Toit argues that in order to promote the purpose of the EEA to
eliminate unfair discrimination and to avoid redundancy, “
arbitrary
”
in the amended section 6 “
must
add something to the meaning of “unfair discrimination
”.
[47]
[91]
He
argues that, therefore , the amended section 6(1) should be read to
place “
an
additional remedy at workers’ disposal
.”
[48]
He submits that the meaning to be attached to “
arbitrary
”
is the meaning which the Labour Court ascribed to “
arbitrary
”
in
Kadiaka
[49]
where it stated that an arbitrary ground is a ground which is
“
capricious
or proceeding merely from will and not based on reason or principle
”.
This, in his view, “
would
broaden the scope of the prohibition of unfair discrimination from
grounds that undermine human dignity to grounds that are
merely
irrational
”
[50]
[92]
In
evaluating this proposition, it must be kept in mind that the word
“
ground
”
is used in section 9 of the Constitution as a synonym for a
“
differentiating
criterion
”.
A complainant in equality litigation must be able to indicate on
which ground the differentiation took place regardless
of whether the
ground is listed or unlisted. This is also the case with
differentiation on an arbitrary ground.
[51]
[93]
Thus, contrary to what Du Toit argues, an
“
arbitrary
”
ground can only be described as any differentiating criterion
(ground) which forms the basis of a differentiation which
is not
rationally linked to a legitimate purpose.
[94]
The statement in
Kadiaka
that an “arbitrary ground” is a ground which is
“
capricious or proceeding merely
from will and is not based on reason or principle
”
does not describe or identify a ground of differentiation in the
sense of a distinguishing feature, characteristic or circumstance
on
which a differentiation is based. The statement merely describes the
absence of a legitimate (rational) purpose for the differentiation,
or if there is such a purpose, the fact that the differentiation is
not capable of contributing anything towards the achievement
of the
legitimate purpose.
[95]
The
full extract from what Landman J in
Kadiaka
said is:
[52]
“
What
then are arbitrary grounds? An arbitrary ground is a ground which is
capricious or proceeding merely from the will and not
based on reason
or principle. See
L
Baxter Administrative Law at 521-2
relying
on
Beckingham
v Boksburg Licensing Court
1931 TPD 280
at 282
).
In
my view, without attempting to be exhaustive, unfair discrimination
on an arbitrary ground takes place where the discrimination
is for no
reason or is purposeless. But even if there is a reason, the
discrimination may be arbitrary if the reason is not a commercial
reason of sufficient magnitude that it outweighs the rights of the
job-seeker and is not morally offensive. The discrimination
must be
balanced against societal values,
particularly
(as emphasised repeatedly by the Constitutional Court)
the
dignity of the complainant
and a society based on equality and the absence of discrimination.”
(Emphasis added.)
[96]
Rautenbach
and Fourie
[53]
commented on the dictum of Landman J as follows:
“
However,
taking into account that Landman J said all this within the context
of unfair discrimination, because labour legislation
refers only to
unfair discrimination, nothing that he said really deviates from the
constitutional framework for the application
of the right to
equality. He repeated the framework in broad terms: all
differentiations
including,
in this instance, alleged cases of unfair discrimination,
must be rationally related to a legitimate purpose; even if a
rational relationship exists, in instances where a differentiation
causes a violation of human dignity (unfair discrimination) stricter
requirements in terms of the factors referred to in the general
limitation must be met before it can be said that the differentiation
is justified.
”
(Emphasis in
original.)
[97]
Rautenbach’s comment with respect,
correctly places Landman J’s finding in perspective within
the constitutional
framework.
[98]
If in following
Kadiaka,
the insertion of “
or any other
arbitrary ground
” simply means
that differentiation in labour relations that allegedly constitutes
unfair discrimination on any listed or
unlisted ground is
impermissible if it does not serve a legitimate purpose, regardless
of whether the disparagement of human dignity
or a similar
consequence is involved, then no new form of unfair discrimination
has been created that has not existed all along
in terms of the
provisions of section 9(1) of the Constitution.
[99]
Thus the only purpose which the phrase
“
arbitrary ground
”
in section 187(1)(f) of the LRA and section 6 of the EEA could
serve is to mean that differentiation in labour law
constitutes
unfair discrimination on any listed or unlisted ground if it does not
serve a legitimate purpose (that would serve
as justification).
[100]
The fact that section 11(1) distinguishes
only between alleged unfair discrimination on a “
ground
listed in section 6(1)
” and
“
alleged discrimination on an
arbitrary ground
” and no
provision is made for a third category of unfair discrimination also
points to the conclusion that it is most unlikely
that Parliament
intended to create three categories of unfair discrimination in
section 6 without then also mentioning it in section 11.
[101]
All of this leads to the conclusion that
the purpose of adding “
or any
other arbitrary ground
” to
section 6 was not to create a third category of unfair discrimination
as contended for by the applicants in this matter.
[102]
The purpose of the legislator by inserting
“
or any other arbitrary ground
”
serves no other purpose than being synonymous with “
one
or more ground
” or being
synonymous with “
unlisted
grounds
”.
[103]
The
contention of Le Roux
[54]
that because the courts have held that the test for an arbitrary
ground which is not listed in section 187(1)(f) is the same as
a test
for an analogous ground in section 9(3) of the Constitution,
“
arbitrary
ground
”
in section 187(1)(f) must be considered to have the same meaning as
an unlisted ground in section 9(3) of the Constitution
and in
section 6 of the EEA before its amendment, makes sense. When the
amended section 6(1) is interpreted contextually with the
amended
section 11(2), “
arbitrary
ground
”
in the phrase “
on
any other arbitrary ground
”
refers to an unlisted ground also called unspecified grounds or
grounds analogous to the listed grounds.
[104]
In the approach to an interpretation of a
statute, regard must also be had to what material the producer of the
amendment knew when
it affected the amendment.
[105]
The applicants within this context argued
that Parliament knew about the decisions such as
Harksen
and consequently would not have
introduced the amendment unless it wished to change the existing law.
[106]
In the same vein it is safe to assume that
Parliament also knew of the decisions interpreting the equality
clause in the Constitution
and linking the interpretation of the
equality clause 2 with the interpretation of section 6 of the EEA.
[107]
Parliament would have known that
arbitrary
in the equality clause and in section 6 of the EEA affects all sorts
and forms of differentiation and that unfair discrimination
as a form
of differentiation requires the added requirement that it affects
human dignity. The purpose of the amendment therefore
was to bring
the EEA in line with the legal position as it pertains to the
constitutional context of the EEA.
[108]
When applying the principles underlying the
interpretation of a statute, it leads to the conclusion that
Parliament did not purport
to introduce a third category of grounds
upon which an employee could challenge the conduct of an employer.
The effect of the amendment
simply is that discrimination on any
arbitrary ground affecting human dignity constitutes unfair
discrimination. In the event of
the listed grounds discrimination is
presumed and any other arbitrary ground that affects human dignity
requires that the complainant
must define the ground and has the
burden of proof.
The
applicant’s case
[109]
The applicants failed to plead or rely upon
a listed or any other arbitrary ground. They did not plead any ground
upon which the
employer allegedly discriminated against them.
[110]
To the extent that they in oral argument
relied upon “
error
”
as an unlisted ground or a ground analogous to the listed grounds
they have failed to plead such a ground.
[111]
The applicants are not excused from having
to plead the arbitrary ground upon which they relied, whether listed
or unlisted or on
their version a third category of grounds.
[112]
It is in any event difficult to understand
how an error as such that is subsequently corrected or rectified, and
thereby extinguished,
can constitute such a ground.
[113]
The case of the applicants as pleaded
cannot succeed.
[114]
The applicants argued in favour of a cost
order. Their main contention was that the respondent only late during
January 2017 informed
them of the fact that the error had been
corrected. For that reason, they would be entitled to a cost order.
[115]
It is clear that the information about the
correction of the error did not deter the applicants from pursuing
their case. The only
effect it had on the applicants was in respect
of the relief that they pursued.
[116]
This case turned upon an interpretation of
the amended provisions of the EEA. There is no direct binding
authority on the interpretation
of the changes to section 6 and
section 11 of the EEA.
[117]
In view of the fact that this case turned
on an interpretation of the law and having regard to the other
relevant considerations
it is just and equitable that no cost order
is made.
Order
[118]
I make the following order:
1.
The application is dismissed.
2.
There is no order as to costs.
______________
Coetzee AJ
Acting
judge of the Labour Court
Appearances
For
the Applicants:
C de Kock
Instructed
by:
Carelse Kahn Attorneys
For
the Respondent:
C Joubert SC and D Nyathi
Instructed
by:
Werksmans Attorneys
[1]
Para 13 of
the statement of case.
[2]
Para 15 of
the statement of case.
[3]
55 of 1998
(as amended). (EEA).
[4]
The
highlighted portion (own emphasis) was added by the Employment
Equity Amendment Act 47 of 2013 (GN 37238 NN 16, 17 August
2014)
which came into force on 1 August 2014 by means of Employment Equity
Amendment Act, 2013: Commencement, GN 37871 NN 50,
25 July 2014.
[5]
Pioneer
Foods Pty Ltd v Workers Against Regression and Others
[2016] 9 BLLR 942
(LC); (2016) 37 ILJ 2872 (LC) at para 60.
(Pioneer
Foods)
[6]
Du Toit et
al,
Labour
Relations Law: A Comprehensive Guide
6
ed (LexisNexis, Durban 2015) at 683.
[7]
Kadiaka
v Amalgamated Beverage Industries
(1999) 20
ILJ 373 (LC) at para 43.
(Kadiaka)
[8]
(2002) 23
ILJ 2088 (LC) at paras 18-9.
(Gabriels)
[9]
Id at para
14.
[10]
Id at paras
22-3.
[11]
2012 (4) SA
593
(SCA) at para 18.
[12]
2014 (2) SA
494
(SCA) at para 12.
[13]
Espoused in
Coopers
& Lybrand and Others v Bryant
1995
(3) SA 761 (A).
[14]
1997 (11)
BCLR 1489
(CC). (
Harksen
)
[15]
Gabriels
above
n 8 at para 8.
[16]
See section 39(2) of the Constitution.
[17]
Gabriels
above n 8 at para 9.
[18]
Harksen
above n 14 at para 45.
[19]
Garbriels
above n 8 at para 10.
[20]
Harksen
above n 14 at para 49.
[21]
1997 6 BCLR
759
(CC),
1997 (3) SA 1012
(CC) at para 23.
(Prinsloo)
[22]
See
Rautenbach and Fourie. “
The
Constitution and recent amendments to the definition of unfair
discrimination and the burden of proof in unfair discrimination
disputes in the Employment Equity Act”
2016 TSAR 110
at 111.
[23]
Prinsloo
above
n 21 at para 24.
[24]
S v
Bhulwana, S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC) at para 18.
[25]
Prinsloo
above n 21 at para 33.
Again,
the reference to section 8(2) in the judgment is a reference to the
equality provision which appears in the Constitution
as section 9.
[26]
Harkson
above no 14 at para 49.
[27]
Rautenbach
and Fourie above n 22 at 113.
[28]
Id at para 46.
[29]
Id at para
51-2 where the Court held that—
“
In order to
determine whether the discriminatory provision has impacted on
complainants unfairly, various factors must be considered.
These
would include:
(a)
the position of the complainants in society and whether they have
suffered in the
past from patterns of disadvantage, whether the
discrimination in the case under consideration is on a specified
ground or not;
(b)
the nature of the provision or power and the purpose sought to be
achieved by it.
If its purpose is manifestly not directed, in the
first instance, at impairing the complainants in the manner
indicated above,
but is aimed at achieving a worthy and important
societal goal, such as, for example, the furthering of equality for
all, this
purpose may, depending on the facts of the particular
case, have a significant bearing on the question whether
complainants have
in fact suffered the impairment in question. In
Hugo
, for example, the purpose of the Presidential Act was to
benefit three groups of prisoners, namely, disabled prisoners, young
people and mothers of young children, as an act of mercy. The fact
that all these groups were regarded as being particularly vulnerable
in our society, and that in the case of the disabled and the young
mothers, they belonged to groups who had been victims of
discrimination in the past, weighed with the Court in concluding
that the discrimination was not unfair;
(c)
with due regard to (a) and (b) above, and any other relevant
factors, 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.
These factors,
assessed objectively, will assist in giving “precision and
elaboration” to the constitutional test
of unfairness. They do
not constitute a closed list. Others may emerge as our equality
jurisprudence continues to develop. In
any event it is the
cumulative effect of these factors that must be examined and in
respect of which a determination must be
made as to whether the
discrimination is unfair.
If the discrimination is held to be
unfair then the provision in question will be in violation of
section 8(2).” (Footnotes
omitted.)
[30]
Rautenbach
and Fourie above n 22 at 113.
[31]
Id.
[32]
Id.
[33]
Rautenbach
and Fourie above n 22 at 113.
[34]
Prinsloo
above no 21 at para 25.
[35]
[2015] ZACC
19; 2015 (2) SACR 323 (CC); 2015 (8) BCLR 887 (CC).
[36]
Id at paras 34-5.
[37]
Larbi-Odam
v Member of the Executive Council for Education (North-West
Province
)
1998 (1) SA 745 (CC).
[38]
Hoffman
v SAA
2000
11 BCLR 1211 (CC).
[39]
Imatu v
City of Cape Town
2005
11 BLLR 1084 (LC).
[40]
Act 66 of
1995 as amended. (LRA)
[41]
Du Toit
“Protection against unfair discrimination: Cleaning up the
Act?” (2014) 35 ILJ 2623.
[42]
[2009] 12
BLLR 1181 (LAC).
[43]
Id at paras 24-6.
[44]
2009 12
BLLR 1181 (LAC)
[45]
Du Toit
above n 41.
[46]
Le Roux
“The Employment Equity Act: New amendments set problems and
posers” (2014) 24
Contemporary
Labour Law
1.
[47]
Du Toit
above n 41 at 2627.
[48]
Id at 2628.
[49]
Kadiaka
above n 7
at para 42.
[50]
Du Toit
above n 41 at 2627.
[51]
Ntai v
SA Breweries
2001 ILJ 472 (LC).
[52]
Kadiaka
above n 7 at paras 43-4.
[53]
Above n 22
at 121.
[54]
Le Roux
above n 45.