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[2019] ZALCJHB 187
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Maqavana v Massbuild (Pty) Ltd and Others (JR393/18) [2019] ZALCJHB 187 (3 April 2019)
the
labour court of South Africa, JOHANNESBURG
Reportable
case
no:
JR
393/18
In
the matter between:
PHATHUXOLO PATRICK
MAQAVANA
Applicant
and
MASSBUILD
(PTY) LTD
First
Respondent
MASSMART
HOLDINGS LIMITED
Second Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION Third
Respondent
COMMISSIONER
J NKOPANE
Fourth Respondent
Heard
:
27 March 2019
Delivered
:
03 April 2019
Summary:
A jurisdictional review – commissioner declined jurisdiction
on the strength of
res judicata
principle. Are
grounds of unfair discrimination separate and distinct causes of
actions – if so does resolution of one ground
leave room for
another separate determination of the others. Held (1) The
application for review is dismissed. (2) Each party to
pay its own
costs.
JUDGMENT
MOSHOANA, J
Introduction
[1]
Before me is a simple yet complicated jurisdictional review. The
question
that should obtain is whether the commissioner was correct
or incorrect in declining jurisdiction? However an interesting
question
that emerges in this matter is whether grounds of unfair
discrimination constitute separate and distinct causes of action,
such
that determination of one ground does not bring to the fore
res
judicata
, when the undetermined ground is raised. The impugned
decision in this matter is one where the commissioner refused to
assume jurisdiction
on application of the principle of
res
judicata
in the circumstances where only the ground of race was
“determined” and the applicant was seeking to rely on an
arbitrary
ground the second time around. The application is opposed
by the first and second respondents.
Background
facts
[2]
Given the test of review applicable to this
type of reviews, it is apposite to give a detailed account of the
objective facts as
they obtained before the commissioner.
[3]
The applicant, Patrick Mqavana (Mqavana)
was appointed as a merchandise controller by Massmart. He earned an
amount of R12 500
per month. He was at some point informed that
Ms Melles, a merchandise controller as well, was earning an amount of
R16 500
per month. He was aggrieved by this revelation and
lodged a grievance internally. He was given various reasons why he
was not on
the same salary scale with Melles.
[4]
Dissatisfied
with the explanations and reasons offered, he, on 15 November 2016,
referred a dispute to the Commission for Conciliation,
Mediation and
Arbitration (CCMA) alleging unfair discrimination within the
contemplation of section 6 of the Employment Equity
Act
[1]
(EEA). Owing to the fact that the dispute was not resolved through
conciliation, Mqavana requested resolution of the dispute through
arbitration. A senior commissioner was appointed to resolve the
dispute. Arbitration was conducted over a period of about three
days.
At the conclusion of the evidence stage, an arbitration award was
issued. It is important at this stage to record the issue
to have
been determined at arbitration. The senior commissioner recorded it
thus, in his award:
“
ISSUES
TO BE DETERMINED
9
The applicant’s complaint is one of
unfair discrimination
,
in that he did not receive equal pay for work of equal value when
compared with colleagues or former colleagues.
10
At the time of the commencement of these proceedings the applicant’s
case appeared
to be unfair discrimination
on an arbitrary ground
.
On the second day it became apparent that the applicant was alleging
discrimination
based on race
.” [My own underlining and
emphasis]
[5]
Before dismissing the claim of Mqavana, the
senior commissioner recorded thus:
38
In summary, I am satisfied that the respondent has shown on a balance
of probabilities
that
no
discrimination took place
.
It has shown a rational, legitimate, fair and/or genuine reason for
the disparity, which is not discriminatory.
[2]
That is the end of the inquiry. [My own underlining and emphasis]
[6]
The
award was published on 31 August 2017. It was not subjected to any
form of challenge by Mqavana. However, on 20 November 2017,
Mqavana
made another referral. Mqavana was constrained to seek condonation
for the late referral
[3]
. In
opposing the condonation, the respondent raised a jurisdictional
point of
res
judicata
.
The jurisdictional point was enrolled for argument on 10 January
2018.
[7]
On 18 January 2018, Commissioner Nkopane,
the fourth respondent before me, issued a ruling upholding the point
of jurisdiction and
declined jurisdiction without entertaining the
condonation application. On 06 March 2018, Mqavana launched the
present review application.
Grounds of review
[8]
Mqavana raised nine grounds of review,
which may be summarised thus:
8.1
Failure
to consider the condonation application – late referral of the
dispute.
[4]
8.2
Misconstrued the nature and cause of action
of the first dispute – equal pay for work of equal value
based
on race
.
8.3
Misconstrued the nature and cause of action
of the present dispute by finding that both relate to equal pay for
work of equal value.
8.4
Applied an incorrect test for
res
judicata
.
8.5
Failed to examine whether the grounds of,
or causes of action in the first and the present dispute are the
same.
8.6
Erred in finding that the “pay-slip
issue” was decided upon.
8.7
Materially incorrectly characterized the
first dispute.
8.8
Erred in part-applying the
res
judicata
principle.
8.9
Erred in finding that the applicant had
options to pursue the present dispute on appeal.
Evaluation
[9]
For the purposes of this judgment it is
unnecessary to consider each of the grounds set out above. Suffice to
mention that the ground
of not considering the condonation
application first was not pursued with any vigour before me. In these
types of reviews, the
issue remains whether on the objective facts,
Nkopane had the necessary jurisdiction or not.
[10]
Thirty
five years ago, the Court in
Pinetown
Town Council v President of the Industrial Court and others
[5]
said the following, which still holds true to this day:
“
[w]here
the jurisdiction of a tribunal is dependent on the existence of a
particular state of affairs, it cannot give itself jurisdiction
by
incorrectly finding that the conditions precedent to jurisdiction
known as
jurisdictional
facts which must objectively exist before tribunal has power to
act.”
[6]
[11]
Section 6 of the EEA prohibits unfair
discrimination. In other words employers are statutorily prohibited
to discriminate unfairly.
Before a referral can be made to the CCMA,
there must be a dispute concerning unfair discrimination. If there is
no dispute, then
the CCMA has no powers to attempt to resolve. Proper
reading of section 10(2) suggest that the dispute must be about an
act or
omission that allegedly constitutes unfair discrimination. It
is not about any act or omission but one that allegedly constitutes
unfair discrimination. Therefore, existence of a dispute of unfair
discrimination is a jurisdictional fact that must objectively
exist
before an attempt to resolve takes place. The power to attempt
resolution on the part of the CCMA emanates from section 10(5)
of the
EEA.
[12]
Primarily,
a dispute that has been resolved ceases to exist, unless the process
that resolved it is challenged. Section 10(8) provides
that a person
affected by an award pursuant to a dispute contemplated in subsection
(6) may appeal to the Labour Court. Absent
an appeal, the dispute is
finally
[7]
resolved.
[13]
Perusal
of the ruling of Nkopane reveals that she did not find any
exceptional circumstances to depart from the principle of
res
judicata
.
On this, she was fortified by the decision of the Constitutional
Court. Simply put,
res
judicata
means that a matter is already judged
[8]
.
Then the question I must turn to now is whether the dispute
justiciable in terms of EEA was judged or not?
Has the dispute been
judged or resolved?
[14]
Before
dealing with this question, it must be stated upfront that, in my
view, there is only one dispute that can be resolved by
the CCMA
under Chapter II of the EEA. The Chapter prohibits unfair
discrimination. Under this Chapter, parties can quibble about
whether
unfair discrimination happened or not
[9]
.
[15]
In
order to answer the question, regard must be had to the principle of
res
judicata
as applied by the commissioner in this matter and its purpose. In
Royal
Sechaba Holdings (Pty) Ltd v Coote and Another
[10]
,
the Supreme Court of Appeal said the following:
“
[11]
The requisites of a valid defence of
res
judicata
in Roman-Dutch law were that
the matter adjudicated upon must have been for the
same
cause
, between the
same
parties
and that the
same
thing
must have been demanded.”
[16]
At footnote 1 of the judgment, Theron JA, writing
for the majority, simplified the principle thus:
“
Simply
stated the requirements are
aedem
persona
(same person),
aedem
causa pretendi
(same cause) and
aedem
res
(same right).”
[17]
Absent
any of the three requirements, the defence cannot be validly
invoked.
[11]
With regard to
the purpose of the principle, Brand JA in
Prinsloo
NO and others v Goldex 15 (Pty) Ltd and another
[12]
said the following:
“
[23]…That
purpose, so it has been stated,
is
to prevent the repetition of lawsuits between the same parties, the
harassment of a defendant by a multiplicity of actions and
the
possibility of conflicting decisions by different courts on the same
issue.”
[13]
[18]
It
is important to also consider and determine what was finally decided
upon in
casu
.
Whether the decision maker was right or wrong is beside the
point.
[14]
With regard to the
matter before me, what applies is the
res
judicata
and
not the attenuated defence of
issue
estoppel
.
I do not agree with Boda SC, appearing for Mqavana, when he submitted
that what obtained in this regard was not a classical
res
judicata
defence but the attenuated defence of
issue
estoppel
[15]
.
[19]
The dispute between the parties is not that one of
the requirements is lacking thus relaxation of the principle is
required. The
applicant’s case is that one of the requirements
is lacking thus the principle does not find application. The
applicant contends
that it is not the same cause of action involved.
Before I conclude whether the dispute has been judged, I turn to the
following
relevant question.
What is a cause of
action?
[20]
The
concept was defined by Lord Esher, MR in
Read
v Brown
[16]
to be:
“
Every
fact which would be necessary for the plaintiff to prove
if
traversed
, in order to support his
right to judgment of the court
. It does
not comprise every piece of evidence which is necessary to prove each
fact
, but every fact which is material
to be proved to entitle a plaintiff to succeed in his claim.
[21]
A
cause of action can mean that particular act on the part of the
defendant which gives the plaintiff his or her cause of complaint.
Elsewhere the concept was seen as ordinarily used to describe the
factual basis, the set of material facts that begets the plaintiff’s
legal right of action.
[17]
[22]
Mqavana begot a legal right of action from the
provisions of the EEA. As pointed out above, the EEA, flowing from
the Constitution
of the Republic of South Africa, prohibits unfair
discrimination. The right that Mqavana has is that of not being
unfairly discriminated
against. His complaint is and can only be that
he should not be unfairly discriminated upon. In other words a fact
that Mqavana
must prove to obtain a relief under the EEA is that he
has been unfairly discriminated upon.
[23]
Returning to the question, on the objective facts,
the dispute of unfair discrimination has been judged upon by the
senior commissioner,
it being the same cause of action in the second
referral.
Are grounds (listed
and unlisted-arbitrary) separate and distinct causes of action?
[24]
One argument, passionately pursued with sufficient
force was, that each of the grounds mentioned in section 6 of the EEA
constitute
a separate and distinct cause of action. I cannot agree.
The grounds are the fulcrum upon which a claim of discrimination must
rotate. In other words, they (grounds) complete, as it were, a cause
of action. It ought to be remembered that discrimination on
its own
is not an actionable cause. It becomes an actionable cause once the
element of unfairness is present. The grounds are enablers
of this
element of unfairness. Therefore, the listed grounds refer to the
basis on which the differentiation is made, not to the
reason or
purpose of the differentiation.
[25]
Ordinarily, a discrimination based on any of the
listed grounds is presumably unfair unless it can be shown to be
fair. However,
if it is based on unlisted grounds – arbitrary
grounds – unfairness need to be proven. To demonstrate that
grounds
are not causes of action, section 6 of the EEA reads in
parts: “
on one or more grounds
”.
This suggests that a party can rely on two or all the grounds to
prove unfairness. If the argument of Mqavana is accepted,
it would
mean that such a party would be relying on multiple and different
causes of action if reliance is placed on two or more
of the grounds.
That is untenable.
[26]
In
Louw
v Golden Arrow Bus Services (Pty) Ltd
[18]
,
this Court noted that in applying the former item 2(1)(a) of Schedule
7 of the LRA, discrimination on a particular ground means
that the
ground is the reason for the disparate treatment complained of. The
mere existence of disparate treatment of people of,
for an example,
different race is not discrimination on the ground of race unless the
difference in race is the reason for the
disparate treatment.
[27]
Reverting
to the definition of a cause of action, “grounds”
constitute piece of evidence necessary to prove the cause
of action –
unfair discrimination. Put differently, in the absence of any of the
grounds listed or unlisted differentiation
lacks a legal basis to
constitute an actionable claim.
[19]
There can never be a legal claim of unfair discrimination if the
grounds are not alleged to any form of differentiation. Therefore,
a
ground is not a separate and distinct cause of action. To suggest
that the first claim was based on race thus a different cause
of
action is to stretch the concept of cause of action beyond what the
concept actually means.
[28]
The dispute referred was one of alleged unfair
discrimination. What begets a relief is the unfair discrimination and
not unfair
race discrimination or unfair social belief discrimination
for an example. Section 50 (2) of the EEA provides thus:
‘
(2)
If the Labour Court decides that an employee has been
unfairly
discriminated
[20]
against,
the Court may make any appropriate order that is just and equitable
in the circumstances…”
[29]
The argument must thus fail. It lacks legal
cogency by any means whatsoever. Applicant’s counsel did not
provide the Court
with any authority in support of the argument. The
Court could not find any authority that supports the argument.
[30]
The
applicant submitted that
Ndudula
and others v Metrorail – Prasa (Western Cape)
[21]
was wrongly decided, when it held thus:
“
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
Hasken
.
The
constitutional distinction between listed and unlisted grounds
affects only the burden of proof and nothing else…
[22]
[31]
I
am unable to agree that
Ndudula
was wrongly decided. In fact the underlined portion correctly
reflects the provisions of section 11 of the EEA. I fully agree with
the
Ndudula
judgment. The criticism of the judgment was based on four
reasons, all of which lacks merit. The first being that the finding
is not in line with the definition of a cause of action. I have
already dealt with the issue of a cause of action above. I am not
persuaded that the finding does not fit the cause of action as
submitted. In this regard, the
facta
probanda
is the unfair discrimination and the
facta
probantia
is the ground. The second reason is that section 11 affects also the
facta
probanda
and not the burden of proof only. I disagree. The f
acta
probanda
occurs
in section 6 and it is the prohibited unfair discrimination and the
facta
probantia
also occurs in section 6 being any of the listed or unlisted grounds.
The third reason is that the findings are inconsistent with
previous
judgments of this Court. I fail to see how. The judgment is
consistent with what was said in all those judgments relied
upon.
[23]
The last reason being that
Ndudula
relegates a component of a cause of action to
facta
probantia
and such is inconsistent with the authorities. Again, for the same
reasons as set out above, I am unable to agree.
[32]
Reliance
was placed on the decision of the Labour Appeal Court (LAC) in
SABC
Ltd v CCMA and others
[24]
.
To
my mind this decision is not of assistance to Maqavana’s case.
There, the LAC was dealing with the need to seek condonation.
The LAC
held that where the alleged discrimination is ongoing, condonation is
not necessary, as the alleged unfair labour practice,
as it was then,
had no end date. On the contrary, the issue in
casu
is whether Mqavana was entitled to have the same dispute heard again.
It cannot be said that since the payment on a lower scale
continues
on a monthly basis, then there may be continuing different causes of
actions each month.
[33]
To conclude, in my judgment, listed or unlisted
grounds do not constitute separate but distinct actionable causes of
action but
are pieces of evidence to aid the alleged unfairness of
the differentiation in order for same to transform into an actionable
cause
of action – unfair discrimination.
Is the jurisdictional
ruling reviewable?
[34]
A simple answer to this question is that where a
dispute is
res judicata
,
the CCMA lacks power to resolve such a dispute.
Res
judicata
is a bar to a rehearing of a
dispute if all the requirements of the principle are present. This
principle is a necessary one for
reasons that rule of law and legal
certainty will be compromised if the finality of a dispute is in
doubt and can be revisited
in a substantive way. The administration
of justice will be adversely affected if parties are free to
continuously approach courts
on multiple occasions in the same
matter. The ratio underlying the principle is that the law requires a
party with a single cause
of action, like Mqavana’s unfair
discrimination complaint, to claim in one and the same action
whatever remedies the law
accords him upon such cause.
[35]
On the objective facts – the arbitration
award dealt with the alleged discrimination – I am unable to
find fault in
the conclusion that the principle of
res
judicata
was applicable, thus the
jurisdiction of the CCMA was ousted. It is incorrect to even suggest
that the so-called pay-slips issue
is a distinct and separate cause
of action. The complaint of Mqavana was and remained that of equal
pay for work of equal value,
a specific aspect of workplace
discrimination.
[36]
In any event there is a slew of authorities that
an arbitrary ground is not a self-standing ground as, in order to
succeed using
it, it must share commonality with any of the listed
grounds. As recorded by the senior commissioner, initially, Mqavana
relied
on an arbitrary ground. In order to succeed Mqavana had to
link the arbitrary ground with one or more of the listed grounds. He
chose race. Race can be the only ground to which Mqavana could link
his equal pay for work of equal value claim, if regard is had
to his
comparators. The ruling that the CCMA lacked jurisdiction is correct
and is being upheld by this court.
[37]
In the results I make the following order:
Order
1.
The
application for review is hereby dismissed.
2.
Each
party to pay its own costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
.
Appearances:
For the
Applicant:
Advocate F Boda SC,
with M Sibanda and H Drake.
Instructed
by: Cheadle
Thompson & Haysom Inc, Braamfontein.
For
the Respondents: Mr D
Masher of ENSafrica, Sandton.
[1]
55
of 1998.
[2]
It is important to note that in instances where arbitrary grounds
are alleged, the complainant must prove that the conduct complained
of is irrational and amounts to discrimination that is unfair.
[3]
It is unclear to me why the Mqavana was seeking condonation. On his
own version, he discovered the real reason of the disparity
on 23-24
August 2017. Section 10(2) of the EEA provides that any party to a
dispute may refer the dispute in writing to the CCMA
within six
months after the act or omission that allegedly constitutes unfair
discrimination. Therefore, if the payslips disparity
constituted a
separate act or omission amounting to unfair discrimination, then
condonation was not required. However, it is
clear that Mqavana was
relying on the same unfair discrimination which formed the subject
matter of the arbitration award.
[4]
Mqavana refers to this as the true jurisdictional fact, without
which the matter is not properly before the Commissioner.
[5]
1984 (3) SA 173 (N)
[6]
This judgment was quoted with approval by the Labour Appeal Court in
the matter of
Shell
Energy (Pty) Ltd v NBCCI and others
Case number JA42/10
[2012] ZALAC 39
(12 December 2012)
[7]
Section 143(1) of the LRA provides that an arbitration award issued
by a commissioner is final and binding.
[8]
It is important to emphasize that clause 4.2 of the Code of Good
Practice on Employment of Persons issued in terms of section
54 of
the EEA provides that the principle of equal pay/remuneration for
work of equal value addresses a
specific
aspect of workplace discrimination
and
the undervaluing of work on the basis of listed or on any other
arbitrary ground in terms of section 6(1) of the Act.
[9]
Section 11(1) (a) speaks of such discrimination did not take place
as alleged. Section 11(2) (c) ultimately gravitates the conduct
complained of to a discrimination that is unfair.
[10]
2014 (3) All SA 431 (SCA).
[11]
Voet,
Commentarius
ad Pandectas
44.2.3
translated in Bertram v Wood
1893 (10) SC 177
– under no other
circumstances is the exception allowed than where the concluded
litigation is again commenced between
the same parties, in regard to
the same thing, and for the same cause of action, so much so, that
if one of these requisites
is wanting the exception fails.
[12]
2015 (5) SA 297 (SCA).
[13]
See also
Fidelity
Guards Holdings (Pty) Ltd v PTWU and others
(1999) 20 ILJ 82 (LAC).
[14]
See:
G
Liviero and Son Building (Pty) Ltd v Sundowner Property Development
(Pty) Ltd
(2012) 2 All SA 43 (SCA).
[15]
With regard to the concept issue estoppel
see
Hyprop Investments Ltd and others v NSC Carriers and Forwarding CC
and others
2014 (2) All SA 26 (SCA).
[16]
22 QBD 131.
[17]
See:
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A) and
Duet
and Magnum Financial Services CC (in liquidation) v Koster
2010 (4) All SA 154 (SCA).
[18]
(1998) 19 ILJ 1173 (LC).
[19]
See:
Sethole
and others v Dr Kenneth Kaunda District Municipality
[2018]
1 BLLR 74 (LC).
[20]
Most importantly, reference is not made of the grounds. Therefore,
the remedy is for unfair discrimination and not on each of
the
specified grounds.
[21]
(
2017)
7 BLLR 706 (LC).
[22]
The underlined portion is the one submitted to be wrong. The
submission being that the classification also affects the cause
of
action.
[23]
Mothoa
v SAPS and others
(2007) 28 ILJ 2019 (LC);
Aarons
v University of Stellenbosch
(2003) 24 ILJ 1123 (LC) and
NUMSA
v Gabriels (Pty) Ltd
(2002) 24 ILJ 1123 (LC)
[24]
Case JA36/07 dated 18 November 2009.