Ramaila v Minister of Justice and Correctional Services and Others (C479/2017) [2019] ZALCCT 4 (28 February 2019)

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[2019] ZALCCT 4
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Ramaila v Minister of Justice and Correctional Services and Others (C479/2017) [2019] ZALCCT 4 (28 February 2019)

the
labour court of South Africa
held
at cape town
Case
Number: C479/2017
Reportable
Of
interest to other judges
In
the matter between
SEKHOSHE
DAYS RAMAILA
Applicant
and
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
First
Respondent
MINISTER
OF PUBLIC SERVICE
AND
ADMINISTRATION
Second
Respondent
DIRECTOR-GENERAL:
JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Third
Respondent
DEMOCRATIC
NURSING ORGANISATION OF
SOUTH
AFRICA
Fourth
Respondent
HEALTH
AND OTHER SERVICE
PERSONNEL
TRADE UNION OF SOUTH AFRICA
Fifth

Respondent
NATIONAL
PROFESSIONAL TEACHERS’
ASSOCIATION
OF SOUTH AFRICA
Sixth
Respondent
NATIONAL
EDUCATION, HEALTH AND ALLIED
WORKERS’
UNION
Seventh Respondent
POLICE
AND PRISONS CIVIL RIGHTS UNION
Eighth

Respondent
PUBLIC
SERVANTS ASSOCIATION
Ninth
Respondent
SOUTH
AFRICAN DEMOCRATIC TEACHERS UNION
Tenth Respondent
SOUTH
AFRICAN POLICE UNION
Eleventh Respondent
Heard
:
10-11 May 2018; 15-16 October 2018; 6-8 February 2019.
Delivered
:
28 February 2019.
Summary:
Discrimination: Pay progression – Employment Equity Act s 6.
Review – Promotion of Administrative
Justice Act – PSCBC
Resolution 1 of 2012. New entrants to public service entitled to pay
progression only after 24 months
as opposed to 12 months. Relevant
provision discriminatory in terms of EEA; reviewed and set aside in
terms of PAJA.
judgment
STEENKAMP
J
:
Introduction
[1]
The
applicant, Mr Sekhoshe Days Ramaila, is a senior state law adviser.
He was appointed from outside the public service when he
was in
private practice as an attorney. In terms of a provision of a
Resolution of the Public Service Co-ordinating Bargaining
Council
(PSCBC), he was entitled to pay progression only after 24 months, as
opposed to his colleagues who started in the same
job at the same
time, but who had been appointed from within the public service, who
qualified for pay progression after 12 months.
He argues that the
differentiation amounts to unfair discrimination in terms of the
Employment Equity Act
[1]
; and he
seeks to have the relevant resolution – as administrative
action, being deemed to be a Ministerial determination
-- reviewed
and set aside in terms of the Promotion of Administrative Justice
Act.
[2]
Background facts
[2]
Much of the evidence before the Court was common cause. Mr Ramaila
testified and argued
on his own behalf. The respondents called two
witnesses, viz Messrs Zamokwakhe Khuzwayo and Anthony Canham.
[3]
The Applicant was appointed as a State Law Adviser (at grade LP7-LP8)
in the Department
of Justice and Constitutional Development (DoJ) in
terms of a written contract of employment and commenced work on the
2
nd
of March 2015 in the Office of the Chief State Law
Adviser, Cape Town. He was appointed together with five other State
Law Advisers,
namely Mr Kgaogelo Lekoloane (previous employer:
National Prosecuting Authority (“NPA”); Ms Lucinda le
Roux (previous
employer: the NPA); Ms Inge Ontong (previous employer:
South African Police Services); Ms Veuonia Grootboom (previous
employer:
Judicial Inspectorate for Correctional Services); and Mrs
Refilwe Mhlwatika (previous employer: Provincial Treasury: Northern
Cape).
[4]
The Applicant and Ms Inge Ontong, Ms Veounia Grootboom and Ms Refilwe
Mhlwatika were placed
on twelve months’ probation whereas Mr
Kgaogelo Lekoloane and Ms Lucinda le Roux were not placed on
probation since they
had apparently already completed their probation
while they were at the NPA.
[5]
The contract of employment signed by the Applicant has the same terms
as those signed by
the other State Law Advisers. The material terms
of the Applicant’s employment are set out in the contract of
employment
and Annexure A attached thereto. The contract of
employment states, amongst other things, the following:
22.1
that his employment is subject to the conditions of appointment as
stipulated in Annexure
A (clause 1.2.2);
22.2
that he would be expected to sign a Performance Agreement with clear
and specific deliverables
(clause 1.3);
22.3
that the general conditions of service and benefits specified in
Annexure A will be as
stipulated and provided for in terms of the
Public Service Act, 1994 (“the Act”) and the Public
Service Regulations,
2001 (“the Regulations”).
[6]
Annexure A attached to the Contract of Employment states, amongst
other things, the following:
23.1
public servants entering the state, regardless of their different
backgrounds, skills and
experience need to be orientated around a
common programme to understand and implement the agenda of the state
(clause 3.1.11);
23.2
a Compulsory Induction Programme (the “CIP”) is
applicable with effect from
01 November 2012 to, amongst others, the
following employees: employees appointed on salary levels 1 to 14 in
a production, supervisory,
managerial, Occupation Specific
Dispensation and non OSD post in the Public Service with effect from
1 July 2012 (clause 3.1.11(a));
23.3
the CIP is a one year programme and an employee has twenty-four
months from the date of
being appointed to the Public Service to
successfully complete the CIP;
23.4
only upon successful completion of the CIP will an employee qualify
for an annual pay progression
commencing with effect from 1 April of
the new cycle (clause 3.1.11); and
23.5
the probation period of an employee shall not be confirmed unless an
employee has successfully
completed at least one of the CIP (clause
3.1.11).
[7]
The Applicant signed a Performance Agreement in accordance with the
provisions of the Contract
of Employment.  The Performance
Agreements that the Applicant and the other State Law Advisers signed
are the same in all
respects and contain the same Key Results Areas
(KRAs), namely:
24.1
KRA 1: Scrutiny and drafting of laws;
24.2
KRA 2: Drafting of preliminary opinions for Cabinet, amendments for
Parliamentary Committees when required
and attending Parliamentary
Committees when required;
24.3
KRA 3: Drafting of legal opinions and vetting of international
agreements and accompanying legal opinion;
and
24.4
KRA 4: Executive administrative functions.
[8]
During
November 2015, the DoJ arranged for the Applicant to attend an
induction programme from 19 to 20 November 2015 required for
the
purpose of confirmation of probation. The Applicant and Mss Inge
Ontong and Veounia Grootboom attended the induction programme

together with other officials from various components of the DoJ. Ms
Mhlwatika did not attend as she had already resigned from
the DoJ at
that time. The first and third respondents
[3]
initially admitted in their pleadings that this was the compulsory
induction programme (CIP) referred to in the annexure to the
contract
of employment; halfway through the trial they amended their pleadings
and withdrew this concession.
[9]
Subsequent to the attendance of the induction programme and
completion of the 12 months’
probation period, the DoJ issued
the Applicant with a confirmation letter dated 25 November 2015 and
also confirmed the applicant’s
probation and his employment as
permanent. To this effect, the DoJ sent the Applicant an email dated
02 August 2016 advising of
the confirmation of his probation and the
fact that his date of receipt of salary will be changed from the end
of the month to
the 15
th
of the month.
[10]
In addition to the fact that the Applicant signed a Contract of
Employment and Performance Agreement with
the same terms as the other
State Law Advisers, the job requirements that the Applicant and the
other State Law Advisers had to
meet in order to qualify for the
appointment as State Law Advisers were also the same. They all wrote
the same competence assessment
test and underwent an interview
process. They all had the same salary scale attendant to their posts
as State Law Advisers and
they all started at the same minimum notch
of their salary scale as reflected in the job advertisement.
[11]
Besides the orientation regarding the functioning of the Office of
the Chief State Law Adviser and the job
the Applicant would be doing
as a State Law Adviser, he had only two sets of training which were
as follows:
28.1
A five day workshop on the interpretation of statutes conducted by
the Justice College
where he was promised a certificate of attendance
which he has not received to date; and
28.2
a four day workshop on the interpretation
of statutes at the
University of Cape Town where he received a certificate of
attendance,
[12]
These workshops took place in 2015 during which time the Applicant
was still on probation. He attended these
workshops together with the
other State Law Advisers.
[13]
Of the State Law Advisers appointed at the same time as the
Applicant, only the Applicant and Mss Veounia
Grootboom and Lucinda
le Roux are still occupying their positions as State Law Advisers.
The rest have since resigned from their
posts in the Office of the
Chief State Law Adviser.
Performance
assessment for the financial year 2015/2016
[14]
Following the performance assessment for the financial year starting
from 01 April 2015 and ending on 31
March 2016, the Applicant
achieved an overall annual rating of 100% which was confirmed by a
letter from the DoJ dated 16 February
2017 and signed by the Human
Resource Director, Mr Motshweni. It states:
“
OUTCOME
OF PERFORMANCE ASSESSMENT FOR FINANCIAL YEAR: 1 APRIL 2015 TO 31
MARCH 2016
During the moderation
process on your performance for the abovementioned assessment period,
you achieved an overall annual rating
of 100%. Please note that the
Department could not process any payments in respect of the
Performance Management Policy as a result
of the following: 24 months
on the salary level not completed (new appointee to Public Service)”
.
[15]
Ms Veounia Grootboom and Ms Lucinda le Roux achieved the same
performance assessment outcome (i.e. an overall
annual rating of
100%) in respect of the financial year 2015/2016. However, Mss
Veounia Grootboom and Lucinda le Roux were awarded
an annual pay
progression for the financial year 2015/2016 whereas the Applicant
was not.
The
differentiated pay progression policy (PSCBC Resolution 9 of 2001 and
PSCBC Resolution 1 of 2012 and the Policies)
PSCBC Resolution 9 of
2001
[16]
The starting point leading to this anomaly is the “Agreement on
improvement in conditions of service
of public service employees for
the period 2001/2002, 2002/2003 and 2003/2004 and other matters of
mutual interest” (PSCBC
Resolution 9 of 2001), a collective
agreement that was concluded in the Public Sector Coordinating
Bargaining Council in 2001.
Clause 4 of PSCBC Resolution 9 of 2001
deals with pay progression and states:
“
4. PAY PROGRESSION
4.1
The employer shall pay the R850 (eight hundred and fifty rand) as

an   once off and final payment in terms of Resolution 7 of
2000.
4.2
The work on the new pay progression model for the Public Service
is
referred back to the pay progression task team established by
Council.
4.3
The Sector shall align the PSCBC framework to their sectoral skills

and competency requirements.
4.4
The new sectoral dispensation on the pay progression system shall
be
implemented on 1 April 2002.
4.5
The employer shall allocate 1% of the wage bill for increments

effected in terms of the pay progression system.
4.6
Payments in terms of the pay progression system shall be effected
for
the first time on 1 July 2002 and thereafter on 1 July each year.
4.7
Those employees who benefit from the pay progression system
will
receive the benefit in addition to the increases referred to in
Clause 3 above.”.
[17]
The effect of PSCBC Resolution 9 of 2001 is that the duration for the
eligibility for annual pay progression
in respect of all employees in
the public service was 12 months. Accordingly, PSCBC Resolution 9 of
2001 did not differentiate
between employees in the public service
with regard to the employment environment from which the employees
came before being appointed
into a post in the public service.
PSCBC Resolution 1 of
2012
[18]
The position ushered in by PSCBC Resolution 9 of 2001 prevailed until
2012 when the “Agreement on salary
adjustments and improvements
on conditions of service in the public service for the period
2012/13-2014/15” (PSCBC Resolution
1 of 2012) was concluded in
the Public Sector Coordinating Bargaining Council. Clause 4 of PSCBC
Resolution 1 of 2012 deals with
pay progression and states as
follows:
“
4. PAY PROGRESSION
4.1
Parties agree to amend clause 4.6 of PSCBC Resolution 9 of 2001
in
order to develop and professionalise the public service.
4.2
The qualifying period for first time participants will be
extended
from 12 to 24 months. The amendment will take effect from 1 July
2012.
4.3
Upon completion of the 24 months period, an eligible first time

participant will qualify for pay progression annually.”
[19]
It is apparent from clause 4.1 of the PSCBC Resolution 1 of 2012 –
and indeed common cause from the
evidence before Court -- that the
words “in order to develop and professionalise the public
service” depict the object
sought to be achieved by the
extension of the duration for the eligibility for pay progression
from 12 months to 24 months in respect
of the employees referred to
in clause 4.2 as “first time participants”.
Incentive Policy
Framework
[20]
Subsequent
to the conclusion of PSCBC Resolution 1 of 2012, the Minister for
Public Service and Administration
[4]
formulated an Incentive Policy Framework for Employees on Salary
Levels 1 to 12 and those covered by Occupation Specific Dispensation

(the “Incentive Policy Framework”) which was communicated
under a cover letter dated 04 October 2012.
[21]
It is apparent from paragraphs 1 to 8 of the cover letter dated 04
October 2012 that the Incentive Policy
Framework elucidates and
supplements the amendments in clauses 4.1 to 4.3 of the PSCBC
Resolution 1 of 2012 regarding pay progression.
In terms of clause 1
(scope of applicability) of the Incentive Policy Framework, State Law
Advisers are covered by such Incentive
Policy Framework. Clause 4 of
the Incentive Policy Framework defines the words “pay
progression”, “pay progression
cycle” and “First
time participants” as follows:
“
4.2
‘Pay progression’ means progression to a higher notch

within the same salary level or scale, limited to the awarding of 3
notches per pay progression cycle for non-OSD employees and
the
number of notches provided for in the respective OSD for OSD
employees.
4.3

‘Pay progression cycle’ means a continuous period
of 24
months running from 1 April to 31 March of the year following the
next year, for first time participants and 12 months, running
from 1
April to 31 March of the next year, for employees other than first
time participants.
4.4

‘First time participants’ means a new appointee
to the
Public Service in a production or supervisory or managerial OSD or
non-OSD post. … It includes employees who have
previously
resigned from the public service and who are re-appointed in the
public service”.
[22]
Part A of the Incentive Policy Framework deals with pay progression
and states as follows:
“
PART
A – PAY (NOTCH) PROGRESSION
5.
Employees are eligible for pay progression, effective from 1 July of
a year.
6.
With effect from 1 July 2012, the qualifying period for pay
progression for First (1st) time [
sic
] participants, is
twenty-four (24) months....
7.
The pay progression cycle for employees other than 1st time
participants is twelve (12) months…. [
sic
]
8.
The pay progression cycle for first time participants does not affect
employees’ probation periods.
9.
Pay progression is not automatic, but based on actual service in a
particular salary level for the respective periods as
determined in
terms of this policy and based on the achievement of at least a
satisfactory performance rating for the said period
in line with
departmental specific performance management systems.
10.
Pay progression shall not be effected automatically by PERSAL/PERSOL.
11.
Pay progression is awarded to qualifying employees in addition to
possible annual cost-of-living adjustments.
12.
..
13.
The following Accelerated Pay Progression provisions apply with
effect from 01 July 2012:
13.1
Non-OSD employees on salary levels 1 to 12:
13.1.1
Accelerated pay progression by the awarding of
13.1.1.1
One (1) notch to eligible employee with satisfactory performance
rating.
13.1.1.2
Two (2) notches for employees with above average assessments, limited
to 10% of eligible employees with
the stipulated assessment.
13.1.1.3
Maximum of three (3) notches for employees with excellent performance
assessments, limited to 5% of eligible
employees with the stipulated
assessment.
13.2
OSD Employees. As contained in respective OSDs.”
[23]
Paragraphs 7 and 13.1.1 of the Incentive Policy Framework were
amended. The amendments were communicated
by the DPSA under cover
letter dated 03 November 2012 to which the Incentive Policy Framework
incorporating the amendments was
attached. However, it is not clear
what was exactly amended in paragraph 13.1.1.
Performance Policy
[24]
In 2014, the DoJ approved and signed the Performance Management
Policy dated 21 May 2014 and circulated it
within the DoJ via
Circular 052 of 2014. Part C of the Performance Management Policy
states that the Performance Management Policy
is authorised,
influenced, affected and bound by, amongst others, the following
legislative framework: the Constitution, the Labour
Relations Act,
the relevant Collective Agreements of the PSCBC and GPSSBC, the
GPSSBC Resolution 1 of 2008 and the Ministerial
Determinations of
2008.
[25]
The Performance Management Policy applies within the DoJ and the
performance of employees (including the
Applicant and Ms Veounia
Grootboom and Ms Lucinda le Roux) in the DoJ is assessed according to
the stipulations of this Policy.
[26]
Clause 6.3(ii) and 6.4(ii) of the Performance Management Policy state
that newly appointed employees in the
public service are eligible for
pay progression after serving a continuous period of 24 months:
“
6
RECOGNITION OF PERFORMANCE
6.1 …
6.2 …
6.3 Performance Bonuses
(Merit Award)
(i)  An employee
shall be considered for a performance bonus on completion of 12
months’ continuous service on the same
salary level at the end
of March.
(ii) A newly appointed
employee in the public service shall be eligible for the pay
progression after serving a continuous period
of 24 months.
(iii) ………..
…………
..
6.4 Pay Progression
(i)  Only employees
who have completed a 12 month service on the same salary notch at the
end of March will qualify for a pay
progression provided that the
employee was assessed and found fully effective.
(ii) Newly appointed
employees in the Public Service to a post as from 01 July 2012
onwards shall qualify for a pay progression
only after 24 months of
unbroken service.
(iii) ...”
Similarity between
clauses 6.3(ii) and 6.4(ii) of the Performance Policy and clause 6 of
the Incentive Policy Framework
[27]
Insofar as the provisions of clause 6.3(ii) and 6.4(ii) of the
Performance Policy state that a newly appointed
employee in the
public service is eligible for pay progression only after serving a
continuous period of 24 months, they mirror
clause 6 of the Incentive
Policy Framework.
Differentiation of first
time participants by the Incentive Policy Framework and the
Performance Management Policy
[28]
PSCBC Resolution 1 of 2012, the Incentive Policy Framework and the
Performance Management Policy differentiate
between new appointees to
the public service and other employees with regard to the duration
for the eligibility for pay progression.
New appointees to the public
service are required to serve a period of 24 months before they
qualify for annual pay progression
whereas the other employees
qualify for annual pay progression after only 12 months.
Reasons for and the
object sought to be achieved by the differential treatment regarding
the duration for the eligibility for pay
progression
[29]
In terms of clause 4.1 of the PSCBC Resolution 1 of 2012 and
paragraph 2 of the cover letter dated 04 October
2012 to the
Incentive Policy Framework the purpose for and/or the object sought
to be achieved by the extension of the duration
for eligibility for
pay progression from 12 to 24 months in respect of new appointees to
the public service and its resultant differentiation
is “to
develop and professionalise the public service”.
[30]
Furthermore, paragraph 4 of the cover letter dated 04 October 2012
(referred to above) further states what
seems to be the motivation
for the extension contained in clause 4.2 of the PSCBC Resolution 1
of 2012 by stating the following:
“
The
extension of the pay progression period will enhance or ensure proper
in-service training of new appointees. The probation period
however
remains unchanged in terms of the current prescripts”.
[31]
From the pleadings and the evidence the parties led before the Court,
the factual background regarding PSCBC
Resolution 9 of 2001, PSCBC
Resolution 1 of 2012, the Incentive Policy Framework and the
Performance Management Policy is not in
dispute. It is against this
policy framework that the Court must deal with the facts from which
the dispute arose.
The
reason the Applicant did not receive annual pay progression
[32]
The reason the Applicant did not receive annual pay progression
despite obtaining a performance assessment
outcome overall annual
rating of 100% is that, in terms of the Performance Management Policy
and the Incentive Policy Framework—
(a)
the Applicant is a “new appointee to the Public Service”;
and
(b)
he had not yet completed 24 months but only 12 months’ service
at the time of the
outcome of the performance assessment for the
financial year in question
i.e.
Financial Year: 1 April
2015 to 31 March 2016.
[33]
The Applicant was denied annual pay progression despite the fact that
he and Ms Veounia Grootboom and Ms
Lucinda le Roux—
33.1   had
achieved the same performance assessment outcome for the financial
year 2015/2016;
33.2   had to
meet the same job requirements in order to be appointed into their
posts as State Law Advisers;
33.3   are all
placed on twelve months’ probation (with the exception of those
who had already done the probation
in their previous jobs in the
Public Service);
33.4   have
signed performance agreements with the same KRAs;
33.5   were
appointed at the same salary scale and had to start at the same
minimum notch of their salary scale; and
33.6   are
doing the same work and work of equal value.
Effect
of differentiation
[34]
The effect of the differentiation regarding the duration for the
eligibility for pay progression is that,
in consequence of the
Applicant having been denied annual pay progression and the other
State Law Advisers having been awarded
annual pay progression—
34.1   the
salaries of the other State Law Advisers have increased;
34.2   due to
the increase, the other State Law Advisers earn more than the
Applicant and there is thus pay disparity;
34.3   the pay
disparity will persist
ad infinitum
due to the fact that, by
the time the Applicant receives his first pay progression, the other
State Law Advisers will be receiving
their second pay progression;
34.4   the
Applicant is underpaid in relation to the other State Law Advisers
and is suffering damages in the amount that
he would have received
from the pay progression.
34.5   the
Applicant’s achievement of performance assessment outcome
overall annual rating of 100% for the financial
year 2015/2016 counts
for naught insofar as the awarding of annual pay progression as an
incentive for fully effective performance
is concerned, because any
annual pay progression the applicant may receive will be based on the
performance assessment outcome
for the financial year 01 April 2016
to 31 March 2017 going forward.
The
lodging of a complaint
[35]
The Applicant wrote to the DoJ and the DPSA on 07 and 10 March 2017
respectively to complain about the differentiation
regarding the
duration for the eligibility for pay progression which had led to the
Applicant not being awarded annual pay progression
for the financial
year 2015/2016.
[36]
On 09 March 2017, the DoJ responded to the Applicant’s
complaint by way of an email, the essence of
which is that—
36.1   the
Incentive Policy Framework is a directive (“the Directive”)
from the Second Respondent and that
the DoJ is required to comply
with it;
36.2   by
implementing the two year period applicable to first time
participants with regard to pay progression, the DoJ
is simply
complying with the Directive which it cannot change or deviate from;
and
36.3    the
DoJ cannot unilaterally change the PSCBC Resolution 1 of 2012 without
the concurrence of the Minister
of Public Service and Administration.
[37]
However, the DPSA did not provide any substantive response to the
Applicant’s complainant save to refer
the Applicant back to the
DoJ through an email dated 22 March 2017.
[38]
Seeing that the complaint was not resolved nor a proper and
comprehensive response provided, the Applicant
submitted a dispute
referral form for unfair discrimination to the Commission for
Conciliation, Mediation and Arbitration (the
CCMA). It was set down
for conciliation on 09 May 2017. The DoJ did not attend the
conciliation process and only DPSA did. Conciliation
failed and a
certificate of non-resolution was issued. The applicant then referred
the dispute to the Labour Court.
The
Applicant’s case
[39]
The Applicant’s case is that the differentiation with regard to
the duration for
the eligibility for pay progression is not rational
and that it amounts to unfair discrimination on an arbitrary ground
against
the Applicant as a new appointee to the public service.
[40]
The Applicant also contends that the provisions of PSCBC Resolution 1
of 2012 which introduced the differentiation
with regard to the
duration for the eligibility for annual pay progression are deemed to
constitute a determination made by the
Minister and that to the
extent that that is so, the determination constitutes administrative
action which is capable of review
and setting aside in terms of PAJA.
[41]
The
Respondents
[5]
deny that the
differentiation is irrational and unfairly discriminates against the
Applicant on arbitrary grounds.
Onus
of proof
[42]
In terms of section 11(2)(a), (b) and (c) of the EEA, the Applicant
bears the onus of proof. The parties
also agreed to this as common
cause in the pre-trial conference minute. Section 11(2) of the
Employment Equity Act reads as follows:
“
11  Burden
of proof
(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.
”. (own underlining)
[43]
In this case, the applicant bases his claim of unfair discrimination
on an arbitrary ground. He alleges that
the “ground” of
differentiation between first time entrants and other employees in
the public service is not rational
and that it amounts to unfair
discrimination.[44]    Section 6 of the EEA provides:
“
Prohibition
of unfair discrimination
(1)
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.
...
(4)
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.”
[45]
Section 11 then deals with the burden of proof.
[46]
The
question of onus in terms of s 11 of the EEA is commented on in
Labour
Law through the Cases
:
[6]
“
No definitive
meaning has thus far been given to the words ‘alleged’
and ‘allegation’, used to describe
the evidentiary burden
placed on the applicant in bringing a claim of unfair discrimination.
An unsupported allegation of unfair
discrimination clearly cannot
succeed. Even if the burden of proving fairness rest on the employer,
it has been held that an employee
should provide sufficient evidence
in support of her/his claim ‘to cast doubt on’ the
employer’s explanation
or ‘to show that there is a more
likely reason than that of the employer”.
[47]
As this
Court recently commented in
Sasol
[7]
this
summary is consistent with the jurisprudence both before and after
the amendment of section 11 which took effect in August
2014. In
Janda v
First National Bank
[8]
-- a case dealing with an
alleged automatically unfair dismissal in terms of s 187(1)(f) of the
LRA  – the court held:
‘
As
stated earlier, there is a single issue with the burden on the
employer. This essential point is obscured if one speaks of “the

employee must prove” or a “shifting” of the onus or
a duty “to establish a prima facie case that the reason
for the
dismissal was an automatically unfair one” (For example Dupper
et al
Essential Employment Discrimination Law
at page 130).
The evidentiary burden placed upon an employee creates the need for
there to be sufficient evidence to cast doubt
on the reason for the
dismissal put forward by the employer or, to put it differently, to
show that there is a more likely reason
than that of the employer. A
failure to present such evidence creates the risk of the employee
losing his or her case. The essential
question however remains, after
the court has heard all the evidence, whether the employer upon whom
the onus rests of proving
the issue, has discharged it. (
Zeffertt
(supra)
at page 132 to 134.)”
[48]
And in
Kroukam
v SA Airlink (Pty) Ltd
[9]
Davis JA held:
“
In
my view, section 187 imposes an evidential burden upon the employee
to produce evidence which is sufficient to raise a credible

possibility that an automatically unfair dismissal has taken place.
It then behoves the employer to prove to the contrary, that
is to
produce evidence to show that the reason for the dismissal did not
fall within the circumstance envisaged in s 187 for constituting
an
automatically unfair dismissal.”
[49]
More
recently, after the amendment of s 11, the court held in
Sethole
& others v Dr Kenneth Kaunda District Municipality
[10]
:
…
[E]ven 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) 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.”
[50]
In
Sasol
(supra)
this Court expressed the opinion that the position in terms of the
amended section 11 must be that set out by the learned authors
in
Labour
Relations Law: A Comprehensive Guide
[11]
:
“
Section 11(1),
like its predecessor, states that the respondent employer must
disprove the unfair discrimination ‘alleged’
by an
employee in order to avoid liability. The term ‘alleged’
has not been consistently interpreted by the courts.
It must be
presumed to mean something less than making out a
prima facie
case, as would be required in the ordinary course when the burden of
proof is not reversed. However, the weight of authority indicates

that it means more than an unsupported contention or mere accusation.
At the very least, as in the case of automatically unfair
dismissal,
it is suggested that the employee must produce ‘sufficient
evidence to cast doubt on the reason’ put forward
by the
employer for its action; that is to say, If the employee succeeds in
discharging this evidential burden, ‘[i]t then
behoves the
employer to prove the contrary’.”
[51]
If this interpretation is correct, the “first stage” of
the inquiry in
Harksen
has been significantly altered and the
earlier case law remains applicable largely in repect of alleged
unfair discrimination on
unlisted grounds, as in the case before me.
Legal
issues
[52]
The parties did not agree to the framing of the legal questions the
Court is required to deal with in the
pre-trial minute. The Applicant
submits that there are two sets of questions before the Court. I
agree.
[53]
The first set of questions is informed by the provisions of section
11(2) of the Employment Equity Act while
the second set of questions
relates to the issue of whether the provisions of the PSCBC
Resolutions, the Incentive Policy Framework
and the Performance
Management Policy constitutes administrative action, and whether they
are reviewable and capable of being set
aside in terms of PAJA.
[54]
The first set of questions is thus:
54.1   Is the
differentiation against first time participants with regard to the
duration for eligibility for annual pay
progression rational?
54.2   Does the
differentiation against first time participants with regard to the
duration for eligibility for annual
pay progression amount to
discrimination?
54.3   If the
differentiation amounts to discrimination, is it unfair?
Is the differentiation
against first time participants with regard to the duration for
eligibility for annual pay progression rational?
[55]
The conduct
complained of is the differentiation with regard to the duration for
the eligibility for pay progression (the differentiated
pay
progression policy) pursuant to which the Applicant was denied annual
pay progression for the financial year 2015/2016. Until
2012 when the
PSCBC Resolution 1 of 2012 was concluded, the duration for the
eligibility for annual pay progression in the public
service was 12
months in respect of all employees. The differentiated pay
progression policy changed this in that it requires first
time
participants, which is defined as meaning new appointees to the
public service
[12]
, to serve a
period of 24 months before they are eligible for annual pay
progression whereas employees other than those defined
as new
appointees to the public service qualify for annual pay progression
only after 12 months.
[56]
The stated object sought to be achieved by the differentiated pay
progression policy is “to develop
and professionalise the
public service” while the differentiated pay progression policy
is a measure or means which is meant
to achieve the stated object.
There is therefore no dispute, as Mr
Ramaila
pointed out, that
the differentiated pay progression policy constitutes a measure and
that “to develop and professionalise
the public service”
constitutes the object or the end sought to be achieved through that
measure. There is also no gainsaying
that “
to develop and
professionalise the public service”
is a legitimate purpose
and a proper end to pursue, as Mr Ramaila readily conceded. But still
that does not make the differentiation
rational.
[57]
Since the differentiated pay progression policy differentiates with
regard to the duration for the eligibility
for annual pay progression
between employees in the public service, namely employees defined as
new appointees to the public service
and employees other than those
defined as new appointees to the public service, it is required that
the differentiated pay progression
policy must be rationally
connected to the purpose or object for which it is designed to
achieve. There must be a rational connection
between the
differentiated pay progression policy and its object, namely “to
develop and professionalise the public service”.
In other
words, the object sought to be achieved must bear a rational
connection to its means of realisation.
[58]
Annual pay progression is an incentive which is meant to incentivise
employees whose performance is fully
effective. That is, the
performance which meets the employer’s expectations. In other
words, annual pay progression serves
to acknowledge the employees’
hard work and reward it so that the employees could keep up the good
work and work even harder.
It is not in recognition for length of
service.
[59]
Employees qualify for annual pay progression after their performance
has been assessed and they have achieved
an overall rating of 100%.
If an employee achieves an overall rating of more than 100% -- as
illogical as that is -- that employee
qualifies for a performance
bonus over and above the annual pay progression. It is apparent that
pay progression is performance-based.
[60]
However, employees who are defined as new appointees to the public
service such as the Applicant are denied
this incentive despite
achieving an overall rating of 100%. The reason for that is nothing
more than that they are new appointees
to the public service and that
they must complete 24 months before they are eligible for annual pay
progression. This is done ostensibly
in order “to develop and
professionalise the public service”.
[61]
New appointees are also required to complete a Compulsory Induction
Programme (CIP) in order for their probation
to be confirmed and to
qualify for annual pay progression. The CIP is said to be a one year
programme. However, employees may take
up to two years to complete
the CIP. But even if a new appointee completes the CIP within a year
and has their probation confirmed
and achieves a performance
assessment rating of 100%, the new appointee would in terms of the
differentiated pay progression policy
still be denied annual pay
progression if the new appointee has not yet completed 24 months’
service. Again, all this is
ostensibly because the 24 months to which
the new appointees are subjected to before they are eligible for
annual pay progression
is meant to develop and professionalise the
public service.
[62]
The question that arises is, how will the stated object of the
differentiated pay progression policy be achieved
by denying
employees an incentive they are entitled to as a result of achieving
the required performance assessment outcome? Mr
Ramaila submitted
that annual pay progression is an incentive which is based on the
employee’s performance and denying new
appointees such an
incentive when they have achieved the required performance assessment
outcome cannot develop and professionalise
the public service. I
agree. In fact, it is likely to achieve the opposite result. As Mr
Ramaila argued, it will lead to demoralisation
of employees and this
will make it even more difficult to professionalise the workforce and
the work environment where the workforce
is demoralised and
demotivated. It is clear that the object of annual pay progression is
to incentivise employees and that is completely
different from the
object sought to be achieved by the differentiated pay progression
policy. I agree with Mr Ramaila that there
is no rational connection
between the differentiated pay progression policy and the object
sought to be achieved.
[63]
As I debated with counsel in argument, a contemporary example springs
to mind. Ms Shamila Batohi was recently
appointed as the new Director
of Public Prosecutions after the disastrous reign of her immediate
predecessors in that important
post. She comes with a wealth of
experience, including her work as a legal advisor to the prosecutor
at the International Criminal
Court. Yet, in terms of the definition
in the Incentive Policy Framework, she is to be seen as a first time
participant; and in
terms of the stated policy, she will only be
eligible for pay progression after 24 months, even if she works
miracles and prosecutes
everyone involved in state capture within 12
months. That cannot be rational.
[64]
With regard
to the question whether there is a rational connection between the
differentiation regarding to the duration for the
eligibility for pay
progression and what is stated to be the object of such
differentiation, the test set out by the Constitutional
Court in
Harksen
v Lane N.O.
[13]
is well known:
“
(a)
Does the provision differentiate between people or categories of
people? If so, does the differentiation bear a rational connection
to
a legitimate government purpose? If it does not, then there is a
violation of section 8(1). Even if it does bear a rational

connection, it might nevertheless amount to discrimination.”
[65]
The differentiated pay progression policy—
(a)
differentiates with regard to the duration for the eligibility for
annual pay progression
between employees in the public service,
namely employees defined as new appointees to the public service, as
opposed to employees
other than those defined as new appointees to
the public service; and
(b)
it does not bear a rational connection to its object, even though
such an object appears
to be a legitimate one.
[66]
I agree with Mr Ramaila’s submissions that—
57.1
A rational connection exists if the differentiation is an
“
appropriate
and effective”
means to achieve the measure’s legitimate objective. The
differentiated pay progression policy is certainly not an
“
appropriate
and effective”
means in the circumstances to achieve the stated objective, namely
“
to
develop and professionalise the public service”
.
[14]
57.2
Differentiating against new appointees with regard to the duration
for the eligibility
for annual pay progression, purportedly to
develop and professionalise the public service, when such
differentiation is not an
appropriate and effective means to achieve
the stated objective does not amount to acting rationally.
57.3
The fact that the stated object sought to be achieved bears no
rational connection to the
differentiation regarding the duration for
the eligibility for pay progression as a purported means of its
realisation and that
the differentiation is not an appropriate and
effective means and that it is incapable of achieving the stated
object, renders
the differentiation to be for no good reason and thus
arbitrary, so much so that it is iniquitous and penal in its effect.
[67]
Consequently, there is no rational connection between using “new
appointee” as a factor determining
the duration for the
eligibility for annual pay progression and the objective of
developing and professionalising the public service.
Whether the
differentiation against first time participants with regard to the
duration for eligibility for annual pay progression
amounts to
discrimination
[68]
The differentiation is with regard to the duration for the
eligibility for annual pay progression, the stated
object of which is
to develop and professionalise the public service. The ground or the
basis on which the Applicant is differentiated
against regarding the
duration for the eligibility for annual pay progression is the fact
that he is said to be a first time participant,
which is defined as
meaning a
new appointee to the public service
.
[69]
The fact that the Applicant is defined as a new appointee to the
public service triggers the differentiation
to be applied between the
Applicant and his comparators, which differentiation requires him to
serve 24 months before he could
be eligible for annual pay
progression. It is therefore apparent that “new appointee to
the public service” is an attribute,
characteristic or
distinguishing feature which has led to the Applicant to be subjected
to the duration of 24 months’ service
before he could qualify
for an annual pay progression, while other employees need serve only
12 months before they qualify for
annual pay progression.
[70]
Although the Applicant, Ms Veounia Grootboom and Ms Lucinda le Roux
were appointed at the same time, and
they all started at the same
minimum notch of the salary scale attendant to the post of State Law
Adviser, Ms Veounia Grootboom
and Ms Lucinda le Roux were awarded
annual pay progression after 12 months (financial year 2015/2016)
whereas the Applicant was
not awarded annual pay progression, simply
because he is defined as a new appointee to the public service.
[71]
I agree that the fact that the Applicant bears the attribute,
characteristic or distinguishing feature, namely
“new appointee
to the public service”, has the potential to affect the
Applicant adversely in a comparably serious
manner insofar as the
awarding of or qualifying for annual pay progression is concerned.
Not only does it have the potential; that
is exactly what the facts
in this case demonstrate.
[72]
That much is clear from the  common cause facts:
63.1
The Applicant (appointed from private practice into a post in the
public service) and the
other State Law Advisers (appointed from
within the public service into a post in the public service), are all
new to their posts
as State Law Advisers.
63.2
The Applicant and the other State Law Advisers have the same key
result areas in terms
of their performance agreements.
63.3
The Applicant and the other State Law Advisers had to meet the same
requirements in order
to be appointed into their posts as State Law
Advisers.
63.4
The salary scale attendant to the Applicant and the other State Law
Advisers’ post
is the same.
63.5
The Applicant and the other State Law Advisers started at the same
minimum notch of their
salary scale.
63.6
The Applicant and the other State Law Advisers achieved the same
performance assessment
outcome for the financial year 01 April 2015
to 31 March 2016 (100% fully effective).
63.7
The other State Law Advisers received annual pay progression for the
financial year 2015/2016
while the Applicant did not receive the
annual pay progression.
63.8
The reason the Applicant did not receive the pay progression is that
he is a “new
appointee to the public service” and had not
yet completed 24 months’ service but only 12 months since being
appointed.
[73]
The only difference between the Applicant and the other State Law
Advisers is the employment environment
from which they came prior to
being appointed into their posts as State Law Advisers. The Applicant
came from private practice
– where he acquired relevant
experience in the legal field -- whereas the other State Law Advisers
came from within the public
service sector. Therefore, the Applicant
and the other State Law Advisers are in the same position in all
respects other than their
previous posts elsewhere within or outside
the public service.
[74]
Despite being in the same position as the other State Law Advisers,
the Applicant is differentiated against
with regard to the duration
for the eligibility for pay progression, the stated objective of
which differentiation is “to
develop and professionalise the
public service”.
[75]
The Applicant is discriminated against on the ground that he is a new
appointee to the public service. Therefore,
being a “new
appointee to the public service” is the reason the Applicant is
receiving disparate treatment insofar
as the duration for the
eligibility for pay progression is concerned. Being a “new
appointee to the public service”
is used as a distinguishing
feature or attribute or characteristic to treat new appointees to the
public service differently from
other employees when it comes to the
duration for the eligibility for annual pay progression. This
distinguishing feature, attribute
or characteristic, which has the
appearance of being neutral, does not only have the potential to
affect but actually affect employees
appointed from outside of the
public service into posts in the public service adversely in a
comparably serious manner particularly
if regard is had to the fact
that the stated objective of the differentiation bears no rational
connection to the differentiation
which is used as a mechanism to
achieve the stated object.
[76]
To
determine whether or not the differentiation amount to
discrimination, the Constitutional Court stated the following in
Harksen
[15]
:
“
(b)
Does the differentiation amount to unfair discrimination? This
requires
a two stage analysis:
(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 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 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 have been 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 or her situation.
If,
at the end of this stage of the enquiry, the differentiation is found
not to be unfair, then there will be no violation of section
8(2).
(c)
If the discrimination is found to be unfair then a determination will
have to be made as to whether the provision can be justified
under
the limitations clause (Section 33 of the interim Constitution).”
[77]
In this case —
68.1
the differentiation regarding the duration for the eligibility for
annual pay progression
on the ground that an employee is
a new
appointee to the Public Service
(which is used as a
distinguishing feature, attribute or characteristic to subject such
an employee to the differentiation), viewed
objectively, has the
potential to affect employees appointed from outside of the public
service into posts in the public service
adversely in a comparably
serious manner; and
68.2
differentiating against new appointees to the public service with
regard to the duration
for the eligibility for annual pay
progression, ostensibly in order to develop and professionalise the
public service, when there
is no rational connection between the
differentiation and the object sought to be achieved, is arbitrary.
Whether or not the
discrimination is unfair
[78]
I have accepted that the differentiation with regard to the duration
for the eligibility for pay progression
in light of the facts and the
circumstances of this case is irrational and that it amounts to
discrimination. The remaining question
is whether the discrimination
is unfair.
[79]
In
Harksen
[16]
,
the Constitutional Court stated that “[t]he test for unfairness
focuses primarily on the impact of the discrimination on
the
complainant and others in his or her situation”. And in
IMATU
v City of Cape Town
[17]
Murphy
AJ explained:
“
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.”
[80]
The differentiation with regard to the duration for the eligibility
for pay progression has the following
effect:
80.1
The Applicant has been denied annual pay progression for the
financial year 2015/2016 while
the other State Law Advisers (Ms
Veounia Grootboom and Ms Lucinda le Roux) have received annual pay
progression in respect of the
same financial year.
80.2
The annual pay progression received by the other State Law Advisers
in respect of the financial
year 2015/2016 has resulted in an
increase in the other State Law Advisers’ annual salaries and
so their monthly salaries.
80.3
The increase in salaries of the other State Law Advisers has resulted
in a pay disparity
between the Applicant and the other State Law
Advisers in that the other State Law Advisers now earn more than the
Applicant.
80.4
The pay disparity persists despite the fact that the Applicant and
the other State Law
Advisers started at the same salary notch and
have all achieved the same performance outcome deserving of an
incentive in the form
of annual pay progression.
80.5
The pay disparity is continuous, in that, when the applicant receives
his first pay progression
as a State Law Adviser, the other State Law
Advisers will be receiving their second pay progression as State Law
Advisers.
80.6
The differential treatment to which the Applicant is subjected to
with regard to the duration
for the eligibility for annual pay
progression creates a difference in the terms and conditions of
employment between the Applicant
and the other State Law Advisers
insofar as the duration for eligibility for annual pay progression is
concerned.
[81]
The difference in terms and conditions of employment persists despite
the fact that the Applicant and the
other State Law Advisers are
employees of the same employer and their work is the same and of
equal value.
[82]
The differential treatment to which the Applicant is subjected to
regarding the duration for the eligibility
for annual pay progression
puts the Applicant at a disadvantage of not being able to progress,
in so far as annual pay progression
is concerned, at the same level
as the other State Law Advisers.
[83]
The pay disparity between the Applicant and the other State Law and
the fact that the applicant is deprived
of the opportunity to
progress at the same level as the other State Law Advisers with
regard to annual pay progress by the differential
treatment has
resulted in the Applicant being underpaid in relation to the other
State Law Advisers despite doing not only the
same work but work of
equal value.
[84]
Considering the effect of the discrimination as demonstrated above,
the differentiation amounts to unfair
discrimination. And it cannot
be justified, either in terms of the provisions of Regulation 7(1)(a)
of the Employment Equity Regulations;
section 198D(2)(a) of the LRA;
or clause 7.3.1 of the Code of Good Practice on Equal Pay /
Remuneration for Work of Equal Value;
or the Constitution.
[85]
Van Niekerk
J restated the principles pertaining to equal pay claims in
Pikitup
[18]
:
“
The
relevant legal principles are clear – a mere differentiation
does not necessarily constitute an act of discrimination.

Discrimination occurs when the differentiation has as its basis one
of the specified listed grounds referred to in s6, or an unspecified

or analogous ground, or an arbitrary ground, referred to in the
section. The pleading in a claim such as the present must necessarily

establish the differentiation and the basis on which the claim is
made, in other words, a link between the differentiation and
a
specified or an unspecified ground. Where reliance is placed on the
latter, it is not sufficient to contend that the policy or
practice
complained of is arbitrary. The case must necessarily be made [that
it] is analogous to a specified ground and based upon
or shares a
common trend with a specified ground and in particular, that it
exhibits attributes or characteristics which have the
potential to
impair the fundamental dignity of the applicants as human beings (see
Ntai v South African Breweries Ltd
[2001] 2 BLLR 186
(LC).
In
other words, a litigant claiming unfair discrimination on an
unidentified, arbitrary ground must clearly identify the ground

relied upon and secondly, shares characteristics with those specified
grounds listed in s 6 (1).”
[86]
More
recently, whilst overturning the judgment of the court
a
quo
on
appeal, the LAC in
Duma
[19]
nevertheless
accepted that the ground of differentiation on the basis of
“geographical location” may form the basis
of an unfair
discrimination claim. Davis AJA noted
[20]
:
“
Two
decades ago in
Louw v Golden Arrow Bus Services (Pty) Ltd
,
Landman J (as he then was) wrote:
‘
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, for example, different
races is not discrimination on the ground of race unless
the
difference in race is the reason for the disparate treatment.
Put differently, for the applicant to prove that the difference
in
salaries constitutes direct discrimination, he must prove that his
salary is less than Mr Beneke’s salary because of his
race.’
Hence,
a claimant in an equal pay claim must establish that the work done by
a person who can be reliably classified as a comparator
is the same
or similar work. In a claim for work for equal value, it behoves a
claimant to establish that the tasks performed by
the comparator and
the claimant are of equal value, having regard to the required degree
of skill, physical and mental effort,
responsibility and other
factors. If one examines the text of the OSD, it is clear that care
was taken to provide for the scenario
that, where a particular legal
officer for example, performs certain tasks which require a
particular amount of time, another officer
occupying the same
position who has a more demanding set of work pressures may be shown
justifiably to be paid more.
…
The
question with which the court grappled in
Mangena
[21]
,
supra
,
comes back to haunt this case, namely was there an adequate factual
foundation to sustain the claim that respondent was on a salary
notch
which was unjustified because of her geographical location. It is
this factual foundation which permits a court to examine
whether the
complainant suffered an assault to her dignity and whether her rights
or interests have been unfairly affected.
The
shadow of these principles looms large in the present dispute
precisely because it was fought out on the basis of a stated case.
It
may well be, given the notorious inability of our legal system to
expedite trials so that they are reasonably affordable for
litigants
such as the respondent, that respondent had little option but to
litigate on the basis of a stated case. But the difficulty
with a
stated case in general and the facts of this case in particular is
that in an EEA based case, a burden of proof rests upon
a claimant
such as respondent. She was required, at the very least, to show that
the nature and volume of work which she performed
in her position was
similar to that of legal officers holding the same position in the
four provinces who occupied a higher grade
level and thus that the
ground of differentiation (which was not a specified ground) was
indeed geographical location.”
[87]
In this case, Mr Ramaila relies on an analogous, arbitrary ground of
discrimination. And he has shown that
the ground of differentiation
is irrational; and that there is no rational relation between the pay
progression measure and its
stated purpose.
The
second set of legal issues: PAJA review
[88]
The Applicant argued that:
88.1
In terms of section 5(6)
(a)
of the Public Service Act, the
provisions of clauses 4.1 to 4.3 of PSCBC Resolution 1 of 2012 which
extends the period for eligibility
for pay progression in respect of
first time participants in the Public Service from 12 to 24 months
are deemed to be a determination
made by the Minister of Public
Service and Administration (“the Deemed Ministerial
Determination of 2012”).
88.2
In terms of section 5(6)
(b)
of the Public Service Act, the
Incentive Policy Framework constitutes a directive issued by the
Minister which elucidates or supplements
the Deemed Ministerial
Determination of 2012 for the purposes of proper implementation of
the PSCBC Resolution 1 of 2012.
88.3
The Deemed Ministerial Determination of 2012, the Incentive Policy
Framework and the Performance Management Policy
constitute
administrative actions in terms of section 1
(a)
(ii) of the
Promotion of Administrative Justice Act (“PAJA”) and are
therefore reviewable in terms of section 6 of PAJA
for the reason
that the differentiation against the new appointee with regard to the
duration for the eligibility for annual pay
progression is:
88.3.1
not rationally connected to the stated objective sought to be
achieved, namely to develop and professionalise
the public service
(section 6(2)
(f)
(ii)
(aa)
of PAJA); or
88.3.2
unconstitutional or unlawful for unfairly discriminating against new
appointees to the public service (6(2)
(i)
of PAJA).
[89]
In light of this argument, the following questions arise:
(a)
Whether or not the provisions of clauses 4.1 to 4.3 of the PSCBC
Resolution 1 of 2012 which extends the period for eligibility
for pay
progression in respect of first time participants in the Public
Service from 12 to 24 months are deemed to be a determination.
(b)
Whether or not the Incentive Policy Framework constitutes a directive
issued by the Minister to elucidate or supplement
the Deemed
Ministerial Determination of 2012.
(c)
Whether or not the Ministerial Determination of 2012 and the Policies
constitute administrative actions in terms of section
1
(a)
(ii)
of PAJA and are therefore reviewable on the grounds set out in
section 6(2)
(f)
(ii)
(aa)
and 6(2)
(i)
of PAJA.
[90]
I am persuaded that—
90.1   In terms
of section 5(6)
(a)
of the Public Service Act, clauses 4.1 to
4.3 of the PSCBC Resolution 1 of 2012 (which extends the period for
eligibility for pay
progression in respect of first time participants
in the Public Service from 12 to 24 months) are deemed to be a
determination
made by the Second Respondent, the Minister of Public
Service and Administration, in terms of section 3(5) of the Public
Service
Act.
90.2   In terms
of section 5(6)
(b)
of the Public Service Act, the Incentive
Policy Framework constitutes a directive.
90.3
In terms of
section 1
(a)
(ii)
of the Promotion of Administrative Justice Act, the Deemed
Ministerial Determination of 2012, the Incentive Policy Framework
and
the Performance Management Policy constitute administrative action
and are reviewable for the reason that the differentiation
provided
for therein with regard to the duration for eligibility for annual
pay progression to which the new appointees are subjected
to is not
rationally connected to the stated objective sought to be
achieved.
[22]
[91]
I am
satisfied that the Ministerial determination and the Policies
constitute administrative action and are reviewable under PAJA.
It is
administrative in nature, being the exercise of a public power, and
it has direct external legal effect on employees similarly
situated
to the applicant. In
Free
Market Foundation
[23]
,
when dealing with a bargaining council resolution, Murphy J
commented:
“
From
the foregoing discussion it is evident that any determination of
whether a bargaining council resolution is administrative
action in
terms of PAJA will depend in the final analysis on the peculiar
facts. I incline to agree with COSATU, NUMSA, the Minister
and the
bargaining councils that PAJA ordinarily will apply and thus that the
decision of the bargaining council will be subject
to PAJA review.
The strongest argument against such a conclusion may be that the
resolution being deliberative is not a decision
of an administrative
nature. Unfortunately, as said, no argument was presented in relation
to this issue, which was not specifically
raised in the affidavits.
If the decision is administrative action then it will be reviewable
on grounds of reasonableness (at
least rationality), legality and due
process. If, on the other hand, the bargaining council resolution is
not administrative action
under PAJA, it still will be subject to
rationality and legality review under the rule of law provision in
section 1 of the Constitution.
Review in terms of the principle of
legality may involve a lower standard of scrutiny than a
reasonableness review under PAJA,
but it still can be far-reaching
and includes the requirements of rationality, legality and a duty not
to act arbitrarily, capriciously
or with ulterior purpose. There must
be a rational relationship between the exercise of the power and the
purpose for which the
power was given. Moreover, there is explicit
statutory protection against discrimination. In terms of section
32(3)(g) of the LRA
the collective agreement may not discriminate
against non-parties, a matter I will discuss later. And hence the
charge of inconsistency
with the Constitution for want of adequate
judicial supervision of the bargaining council process is not
sustainable.”
[92]
The contested provision in PSCBC Resolution 1 of 2012 – which
is deemed to be a ministerial determination
– is not rational.
There is no rational relationship between the exercise of the power
and the purpose for which it was given,
i.e. to “develop and
professionalise” the public service. And it adversely affects
the rights of the applicant and
similarly situated employees in the
public service.
[93]
Furthermore, by treating the first time participants unequally in
comparison to other employees simply by
their mere labelling as such
in the manner that the Policies do, this unequal treatment
constitutes unfair discrimination prohibited
in terms of section 6(1)
and (4) of the Employment Equity Act.
[94]
The difference in the terms and conditions of employment, between
first time participants and other employees,
in so far as pay
progression is concerned, resulting from the application of the
Policies cannot be justified.
The First and Third
Respondents’ defence
[95]
The First
and Third Respondents’
[24]
response can be divided into three parts:
95.1   The
first part deals with a special plea regarding the joinder of Ms
Grootboom. They have abandoned the special
plea.
95.2   The
second part is the response to the allegations of fact set out in the
Applicant’s statement of claim.
It is in this part that they
set out their defence.
95.3   The
third part comprises the legal issues arising from the facts of the
case, as seen by the respondents.
[96]
The First and Third Respondents deny:
96.1   that the
Applicant attended the Compulsory Induction Programme mentioned in
clause 3.1.11 of Annexure A to his
contract of employment;
96.2   that the
letters from the DoJ dated 25 November 2015 and 2 August 2016 confirm
the Applicant’s probation
in accordance with the Directive on
the Implementation of the Compulsory Induction Programme, 2012;
96.3   that the
Applicant has not received any “in-service training”
whatsoever since the completion of his
probation at the end of March
2016 and that he had only two sets of training which took place in
2015 when he was still on probation.
The First and Third
Respondents’ denial that the Applicant attended CIP
[97]
The Applicant pleaded that he had attended the Compulsory Induction
Programme which he is required to attend
in order for his probation
to be confirmed. This allegation of fact was initially admitted by
the First and Third Respondents but
later on retracted, leading to an
amendment and consequent delay in the trial, with the results that
the First and Third Respondents
deny that the Applicant attended the
CIP.
[98]
The First and Third Respondents contend that the Applicant attended
the PSIP (Public Sector Induction Programme)
which was phased out in
2012, even though he only did so in 2015. The contention goes on to
say that the Department’s confirmation
of the Applicant’s
probation was not in accordance with the October 2012 Directive. The
Department obtained a report from
the National School of Government
and on the basis of the contents of that report stated that the NSG
has no record of the Applicant.
[99]
The Applicant’s response to that was that it is the
responsibility of the DoJ to enrol him for the
CIP.
[100]
It emerges from the contents of the Directive on the Implementation
of the Compulsory Induction Programme and a comparison
with the
sample confirmation letter from the NSG regarding the CIP, and the
letter confirming his probation, that the induction
programme the
Applicant was made to attend by the employer, namely the DoJ, was not
the CIP but PSIP. And according to clause 12.1
of the October 2012
Directive, the PSIP was phased out in 2012. Once that had been
clarified, Mr Ramaila had no difficulty to admit
that the induction
programme he was made to attend is not the CIP described in the
October 2012 Directive but the PSIP.  However,
he submitted
that:
100.1
the admission that he did not attend the CIP but the PSIP is not
fatal to his case and that
it is the responsibility of the DoJ to
enrol him into the National School of Government for the CIP and/or
provide the CIP training.
100.2
the fact that he did not attend the CIP does not change anything.
Even if he had attended the
CIP he would still have not been awarded
pay progression for the financial year 2015/2016 because the policy
says that, as a new
appointee, he must complete 24 months before he
could qualify for annual pay progression. Therefore, attendance or
not of the CIP,
makes no difference insofar as the 24 months duration
is concerned.
[101]
Mr Canham, a deputy director dealing with training in the Department
of Justice, who testified for the First and Third Respondents,

conceded under cross examination that it is the responsibility of the
DoJ to enrol the Applicant into the CIP and that the DoJ
has failed
to discharge its responsibility in that regard. He also explained the
process:
“
It
is for the supervisor to inform HR about the employee, that an
employee has started on a specific day, and then HR will register
and
book the employee for the compulsory induction programme. So, the
responsibility is with the supervisor to inform HR of the

appointment. The appointment letter or appointment email will then be
sent to Justice College informing my section of the person’s

employment and then I will start the process of enrolling the
person.”
[102]
To date – even after the trial had started in May 2018 –
the Department has taken no steps to enrol Mr Ramaila
in the CIP. Mr
Canham specifically stated that it was “a mistake” for
the DoJ to not enrol him into the CIP. And Mr
Canham conceded that
the DoJ has failed to enrol the Applicant into the CIP despite the
DoJ knowing that it made the Applicant
to attend the PSIP instead of
the CIP, and also despite the DoJ having a Service Level Agreement,
which Mr Canham mentioned for
the first time during cross
examination, to provide the CIP internally to its employees.
[103]
It is undisputed that the Applicant has never been told to go to the
NSG or Justice College to attend CIP by the DoJ despite
the Applicant
been present at work at all material times except when being on
annual leave or off sick.
[104]
The orientation guide to the CIP, prepared by the National School of
Government, reiterates that “the aim of this extension
[in
Resolution 1 of 2012] in the pay progression period is to ensure the
development and professionalising period of public servants”.

Yet the DoJ has still not enrolled the applicant in the CIP, and it
has not explained satisfactorily how that stated aim is met
through
the extension of the pay progression period to 24 months when it is
common cause that the CIP can be concluded within 12
months –
in fact, the programme content itself is dealt with over a mere 25
days. The First and Third Respondent’s
denial that the letters
from the DoJ confirm the Applicant’s probation in accordance
with the Directive on the Implementation
of the Compulsory Induction
Programme
[105]
It is common cause that the Applicant’s probation was
confirmed. However, the First and Second Respondents contend that
the
confirmation was not in accordance with the Directive on the
Implementation of the Compulsory Induction Programme. This is

apparently due to the fact that the Applicant has not attended the
CIP but the PSIP, as directed by the Department.
[106]
Although
the First and Third Respondents claim that the probation was
erroneously confirmed they have not done anything to have
the alleged
erroneous confirmation of the probation either rectified, reversed or
reviewed and set aside. In my view, the fact
that the probation has
been confirmed, which presupposes that all requirements relating to
the confirmation of the probation have
been complied with, cannot be
ignored and as such the confirmation is of force and effect,
irrespective of the alleged error, until
reviewed and set aside.
[25]
[107]
The First
and Third Respondents’ contention that the confirmation of the
probation was not in accordance with the Directive
on the
Implementation of the Compulsory Induction Programme flies in the
face of the fact that it is the DoJ’s responsibility
to enrol
the Applicant into the CIP. The Department has not discharged this
responsibility and Mr Canham conceded as much. And
it has not
rectified or explained its mistake. That is inexplicable in the light
of the current litigation; the respondents’
initial concession
that Ramaila had attended the induction programme; and its subsequent
amendment and withdrawal of that admission
mid-trial. As the
Constitutional Court stated in
Khumalo
[26]
:
“
[35]
Section 195 provides for a number of important values to guide
decision
makers in the context of public-sector employment.
When, as in this case, a responsible functionary is enlightened of a
potential
irregularity, section 195 lays a compelling basis for the
founding of a duty on the functionary to investigate and, if need be,

to correct any unlawfulness through the appropriate avenues.
This duty is founded, inter alia, in the emphasis on accountability

and transparency in section 195(1)(f) and (g) and the requirement of
a high standard of professional ethics in section 195(1)(a).

Read in the light of the founding value of the rule of law in section
1(c) of the Constitution, these provisions found not only
standing in
a public functionary who seeks to review through a court process a
decision of its own department, but indeed they
found an obligation
to act to correct the unlawfulness, within the boundaries of the law
and the interests of justice.
[36]
Public functionaries, as the arms of the state, are further vested

with the responsibility, in terms of section 7(2) of the
Constitution, to “respect, protect, promote and fulfil the
rights
in the Bill of Rights.”  As bearers of this duty,
and in performing their functions in the public interest, public
functionaries
must, where faced with an irregularity in the public
administration, in the context of employment or otherwise, seek to
redress
it.  This is the responsibility carried by those in the
public sector as part of the privilege of serving the citizenry who

invest their trust and taxes in the public administration.
[37]
In the context of public-sector employment, this is fortified by

section 5(7)(a) of the PSA which provides:
“
A functionary
shall correct any action or omission purportedly made in terms of
this Act by that functionary, if the action or omission
was based on
error of fact or law or fraud and it is in the public interest to
correct the action or omission.”
[108] The failure of the
Department to correct its error in this case would understandably
leave a particularly bitter taste in
Mr Ramaila’s mouth, given
its stated objective to “develop and professionalise” the
public service.
The First and Third
Respondents’ denial that the Applicant has not received any
“in-service training” whatsoever
since the completion of
his probation at the end of March 2016
[109]
Inexplicably, the First and Third Respondents continued to deny the
Applicant’s contention that has not received any
“in-service
training” whatsoever since the completion of his probation at
the end of March 2016 and that he had only
two sets of training which
took place in 2015 when he was still on probation.  Those were a
five day workshop on the interpretation
of statutes conducted by the
Justice College, and a four day workshop on the interpretation of
statutes at the University of Cape
Town.
[110]
The respondents have not led any evidence to contradict these factual
allegations.
The Second Respondent’s
defence
[111]
The Second
Respondent’s
[27]
response can also be divided into three parts:
111.1
The first part comprises a copy and paste exercise, reiterating the
provisions of the Public
Service Act, 1994; the Public Service
Regulations, 2001; the Labour Relations Act; the Employment Equity
Act; the Employment Equity
Regulations, 2014; and the DPSA Annual
Report 2011/2012, some statements regarding PSCB Resolution 1 of
2012, the DPSA Annual Report
2012/2013, the Service Charter, 2013,
and some statements and excerpts from DPSA Annual Reports 2013/2014,
2015/2016 and 2016/2017.
111.2
The second part seems to entail three defences to the Statement of
Claim. Those will be set
out below.
111.3
The third part comprises the legal issues as the Minister sees them.
[112]
The defences comprise three denials. The Second Respondent denies
that—
112.1
the extension of the period for eligibility for pay progression from
12 months to 24 months
in respect of first time participants in the
public service as set out in clause 4.1 to 4.3 of the PSCBC
Resolution 1 of 2012 is
reviewable and stands to be set aside as
being irrational, alternatively unreasonable and/or unjustifiable;
112.2
the differentiation contained in clause 6 of the Incentive Policy
Framework and in clause 6
of the DoJ’s Performance Management
Policy is irrational, arbitrary and unfairly discriminates against
first time participants
in the Public Service; and
112.3
the Applicant is entitled to pay progression.
[113]
The Second Respondent contends that—
113.1
the differentiation in Resolution 1 of 2012, the Incentive Policy
Framework and the Performance
Management Policy (“impugned
provisions”) is fair and rational taking into consideration the
history and rationale
behind the conclusion of Resolution 1 of 2012
and subsequent steps to implement its provisions;
113.2
the impugned provisions are fair, rational and justified by
regulations 7(1)(a),(f) and (g)
and 7(2)(a) and (b) of the Employment
Equity Regulations, 2014; and
113.3
the impugned provisions are fair, rational and further justified by
the fact that they are applied
in a proportionate manner on all first
time participants in the Public Service; the State as the employer
sought to achieve labour
peace and to build a constructive and
mutually beneficial relationship with organised labour; and the State
as the employer sought
to remove threats of strikes and “ugly
scenes of public servants destroying property”.
The Second Respondent’s
contention that the differentiated pay progression policy is fair and
rational taking into consideration
the history and rationale behind
the conclusion of Resolution 1 of 2012 and subsequent steps to
implement its provisions
[114]
It seems from the Second Respondent’s argument that it contends
that three things make the differentiated pay progression
policy fair
and rational, namely its history; the rationale behind the conclusion
of Resolution 1 of 2012; and the subsequent steps
taken to implement
the provisions of the PSCBC Resolution 1 of 2012.
[115]
It is not clear from the evidence what that history is on which the
Minister relies. As regards the alleged rationale behind
the
conclusion of the PSCBC Resolution 1 of 2012,  Ms
Dzai
told
Mr Ramaila in cross-examination that “
[t]he witness that I
am going to be calling from the DPSA will testify on the rationale
behind Resolution 1 of 2012 but before he
does that, I want to take
you to the witness bundle. I will take you to the specific pages
therein that will explain to you the
rationale behind the phrase to
professionalise and develop the public service”
.  She
then referred him to a number of paragraphs in the DPSA’s
various annual reports and claimed that those paragraphs
explain the
rationale behind the phrase “to develop and professionalise the
public service”. Conversely, Mr Zamokwakhe
Khuzwayo, a director
of human resource development and strategy who testified for the
Second Respondent, conceded under cross examination
that neither the
DPSA’s annual reports nor the Public Service Charter deal with
the PSCBC Resolution 1 of 2012 or the differentiated
pay progression
policy.
[116]
Mr Khuzwayo’s evidence in chief was helpfully summarised by Mr
Ramaila in his argument. It can be reduced to six elements:
(1) his
views on why there is differentiation; (2) his views as to what
professionalization entails; (3) an explanation of the
difference
between annual reports and financial statements; (4) his comments on
the various paragraphs contained in the various
annual reports in the
witness bundle; (5) an explanation of what the “Directive on
the implementation of the Compulsory Induction
Programme (CIP) in the
Public Service” is and what its purpose is; and (6) the
background into the Public Service Charter.
116.1
As regards the first element, Mr Khuzwayo set out his views on why
there is differentiation.
In essence, he stated that the
differentiation is not exclusively a practice in the Public Service,
but it is a practice that “is
there”.
116.2
As regards the second element, Mr Khuzwayo explained to the court
what professionalisation means,
in his view. He explained it as
meaning a “
process by which you want to ground or orientate
or hold to a pillar of standard that which you have defined for the
people who
are employed in an organisation or in a system”
.
He went on to say that professionalisation must have at least two
aspects to it, namely vertical and horizontal aspects. He said
the
vertical aspect is linked to academic qualification whereas the
horizontal aspect is linked to the general conduct into the
system.
116.3
As regards the third element of his evidence, he explained what the
difference between an annual
report and financial statement is. He
stated that annual reports contain information relating to the
Department’s performance
and financials, whereas financial
statements deal with financials only. He stated further that the
compilation of the annual report
is a requirement provided for in the
PFMA. This was of little relevance to the dispute before the Court.
116.4
As regards the fourth element of his evidence, Mr Khuzwayo commented
on the various paragraphs
in the various annual reports discovered by
the respondents.  He initially stated that, as reflected in the
Minister’s
foreword to the 2012/13 annual report, that was the
first time that a “multi-year” wage settlement agreement
was concluded
with organised labour. However, during
cross-examination he conceded that the PSCBC Resolution 9 of 2001 is
also a multi-year settlement
agreement and that it obviously precedes
Resolution 1 of 2012. Mr Khuzwayo further conceded  that neither
the DPSA’s
annual reports nor the Public Service Charter deal
with either the PSCBC Resolution 1 of 2012, the Incentive Policy
Framework or
the Performance Management Policy with regard to the
differentiated pay progression policy.
116.5
As regards the fifth element of Mr Khuzwayo’s evidence, he
explained that the Directive
on the Implementation of the Compulsory
Induction Programme simply deals with the implementation of the
Compulsory Induction Programme.
116.6
Concerning the sixth element of his evidence, Mr Khuzwayo merely gave
background into how the
Public service Charter came about and what it
seeks to achieve. He conceded under cross-examination that the Public
Service Charter
does not deal with the pay progression policy nor
explain the alleged rational connection between the differentiated
pay progression
and the object sought to be achieved.
[117]
On balance, Mr Khuzwayo’s evidence does not explain any
rational connection between the differentiation regarding the

duration for the eligibility for pay progression and the object sough
to be achieved by such differentiation, namely “to
develop and
professionalise the public service”; and it fails to justify
the unfair discrimination emanating from the application
of the
differentiated pay progression policy on the Applicant as a new
appointee to the public service.
[118]
As regards the alleged subsequent steps to implement the provisions
of the PSCBC Resolution 1 of 2012, it
is undisputed that the
conclusion of the PSCBC Resolution 1 of 2012 led to the DPSA making
the Incentive Policy Framework and the
DoJ making the Performance
Management Policy, all of which implement the differentiation
regarding the duration for the eligibility
for pay progression
provided for in clause 4 of the PSCBC Resolution 1 of 2012. The so
called history, rationale and steps taken
to implement Resolution 1
of 2012, neither sets out a rational connection between the
differentiation regarding the duration for
eligibility for pay
progression and the stated object, nor explain such rational
connection, if any.
The Second Respondent’s
contention that the impugned provisions are fair, rational and
justified by regulations 7(1)(a),(f)
and (g) and 7(2)(a) and (b) of
the Employment Equity Regulations, 2014
[119]
The grounds referred to in Employment Equity regulations 7(1)(a), (f)
and (g) are the employees’ respective seniority
or length or
service; the existence of a shortage of relevant skill; and any other
relevant factor that is not unfairly discriminatory.
The
differentiation with regard to the duration for the eligibility for
annual pay progression is not based on any one or a combination
of
the abovementioned ground. It is not in recognition of the length of
service as suggested by Mr Khuzwayo during his evidence
in chief and
cross-examination, or as argued by Ms
Dzai
. Length of service
is dealt with separately in clause 5 of the PSCBC Resolution 1 of
2012 and has nothing to do with the pay progression
provided for in
clause 4 of the PSCBC Resolution 1 of 2012.
[120]
Ms
Dzai
sought
to rely for her argument based on length of service on the judgment
of this Court in
Pioneer
Foods v WAR.
[28]
But
that case is to be distinguished from the present one. That case
concerned an appeal in terms of s 10(8) of the EEA. The lower
rate of
remuneration paid to the seven complainants in that case was a
consequence of a term in two successive collective agreements
between
Pioneer and FAWU. One of the terms of the agreement provides:
“
New entry minimums
for new employees from outside the Company; to be at 80% of the
current Grades in each category for two years.”
[121]
This came about because FAWU persuaded Pioneer that it should reduce
the extent to which it was then using the services of
various forms
of “precarious” employees, including employees supplied
by labour brokers.   At the same time
FAWU proposed the
creation of a scale “that showed differentiation between people
who started now and people who have been
in the company for years”.
It proposed this because “there is a lot of unhappiness from
the long serving
workers, that a person who start today, earn the
same as a person who’s been here for donkey year (sic).”
The 80% scale
was applied to all “new employees from outside
the company”; it was not directed only at persons who happened
formerly
to have been employed by a labour broker.  Moreover,
the lower scale would only be applicable for the new employees’

first two years. It was based on an agreement that came about to
recognise length of service. The court held that the rationale
was
not unfair in that case.
[122]
In this case, the differentiation with regard to the
duration for the eligibility for annual pay progression
and the
resultant differentiation in terms and conditions of employment it
has on the Applicant and the other State Law Advisers
is not based on
what is contemplated in regulation 7(2)
(a)
and
(b)
. The
stated rationale is to “develop and professionalise” the
public service. The fact that such differentiation is
applied to all
new appointees to the public service and not to the Applicant only
does not make the differentiation rational and
not unfairly
discriminatory. In fact, the application of the differentiation
regarding the duration for the eligibility for pay
progression to not
only the Applicant but all new appointees to the public service means
that all new appointees to the public
service are unfairly
discriminated against.
[123]
In the
recent case of
Naidoo
[29]
,
Prinsloo
J followed the reasoning of this Court in
Pioneer
Foods
and the commentary in Du Toit
[30]
.
She commented:
[31]
“
Differentiation
per se does not constitute discrimination. Differentiation on a
specified ground of discrimination is presumed to
constitute unfair
discrimination, which presumption is rebuttable.  Given that an
arbitrary ground is synonymous with an unlisted
/ unspecified ground,
the test for whether discrimination is established, is that set in
Harksen
namely, if there is differentiation based on an
unspecified ground, then whether or not there is discrimination will
depend upon
whether, objectively, the ground 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
comparably serious manner.”
[124]
I agree. And in this case, it has been established on the facts that
the pay progression policy affects Mr Ramaila and similarly
situated
employees – viz “first time entrants” – in a
comparably serious manner.
Labour
peace
[125]
The second respondent’s argument that the extension of
eligibility for pay progression from 12 to 24 months would somehow

ensure labour peace and prevent strikes is entirely irrational and
without foundation. The respondents led not a shred of evidence
that
there was any such demand from organised labour for such an
extension, much less the threat of a strike or unlawful destruction

of public property. That argument is without any merit.
Conclusion
[126]
For these reasons, I hold that the applicant is entitled to the
relief sought.
[127]
With regard to costs, I take into account that Mr Ramaila appeared in
person. Consequently, he did not incur any legal costs.
And I feel
constrained to comment, as an aside, that Mr Ramaila did an excellent
job. The old adage of a litigant representing
himself “having a
fool as a client” did not apply in this case. Mr Ramaila was at
all times thoroughly professional,
courteous and well prepared. His
cross examination and presentation of argument – both written
and oral – would put
many practising counsel to shame. It must,
unfortunately, also be said that the legal team for the first to
third respondents were
not always as well prepared, leading to
unnecessary delays – for example, that occasioned by the
application to amend their
papers in October 2018 in order to
withdraw an earlier concession, leading to a lengthy and unnecessary
delay. In fact, Ms
Dzai
acknowledged the unprofessional way in
which the respondents’ legal team represented them in her heads
of argument:
“
We (first to third
respondents together with the legal representatives) made numerous
mistakes during the conduct of these proceedings,
i.e. late delivery
of the [Minister’s] response, which caused delay on the first
day of the trial; late delivery of the notice
of intention to amend
(almost four months later); late application for leave to amend which
resulted in the postponement of the
trial. Eventually when the
Registrar forwarded the notice of set down for the continuation of
the trial from 4 to 8 February 2019,
I asked that we commence on
Wednesday 6 February instead, because I had a vacation planned for 31
January to 5 February 2019. As
a result, the matter could not proceed
on 4 and 5 February 2019. To make matters worse, on the morning of 6
February 2019, the
day of trial, the witness bundle was not
paginated, and our candidate attorney had to run out of court to fix
the witness bundle
and came back to court ten minutes later. My
instructing attorney also arrived 30 or so minutes late. We have
offered numerous
apologies as well, but no amount of apologies and
explanation will satisfactorily address the delays caused by us in
these proceedings.
Accordingly, I respectfully apologise once again
for our conduct in these proceedings and acknowledge that the
administration of
justice has been affected by the delays caused by
us in these proceedings. The court roll was unnecessarily clogged up
by our conduct
in this matter, unnecessarily so. In this regard, I
take heed and hope our clients and the rest of our legal team will
take heed
from the following presentation by Judge van Niekerk at the
SASLAW annual conference 2017:
‘
A major
contributor to the case load overload is the high number of
‘hopeless’ cases that are referred to the court.
Examples
include delaying tactics, squeezing opponents out financially,
misrepresentation of facts, excessive legal fee making,
unnecessary
information overload, technical point-taking and, often, plain
incompetence by parties or their legal representatives.
The Judges
have expressed their displeasure about this state of affairs. They
have alerted parties and legal representatives that
they will face
the wrath of the court if they persist in bringing hopeless cases to
court. They can expect heavy criticism and
punitive costs orders as
punishment for malicious litigation and unprofessional conduct.’
”
[128]
Although Mr Ramaila did not incur legal costs in the strict sense, he
had to pay for flights from Pretoria – where he
now lives and
works – and accommodation in Cape Town, where the trial ran. He
should not be out of pocket for those costs.
In law and fairness, the
first to third respondents should pay for those disbursements, within
reason.
Order
[129]
I therefore make the following order:
129.1
The differentiation in the provisions of clause 6 of the Incentive
Policy Framework for Employees
on Salary Levels 1 to 12 and those
covered by Occupation Specific Dispensation made by the second
respondent (the Minister of Public
Service and Administration)
extending the qualifying period for pay progression for first time
participants from 12 months to 24
months, is irrational, arbitrary
and unfairly discriminates against the applicant and other first time
participants.
129.2
The differentiation in the provisions of clause 6 of the Performance
Management Policy of the
Department of Justice and Constitutional
Development which provides that a newly appointed employee in the
public service is eligible
for pay progression only after serving a
continuous period of 24 months is irrational, arbitrary and unfairly
discriminates against
the applicant and other newly appointed
employees.
129.3
Clauses 4.1 to 4.3 of PSCBC Resolution 1 of 2012, extending the
qualifying period for pay progression
for first time participants
from 12 to 24 months, is reviewed and set aside.
129.4
The decision of the Department of Justice and Constitutional
Development not to grant the applicant
pay progression is declared to
be invalid.
129.5
The first and third respondents are ordered to direct the relevant
functionary in the Department
of Justice and Constitutional
Development to effect the necessary adjustment to the applicant’s
salary in order to reflect
the pay progression he is entitled to
pursuant to the performance assessment for financial year 1 April
2015 to 31 March 2016;
and all consequent pay progression
adjustments.
129.6
The first to third respondents are ordered to pay the applicant’s
reasonable costs and
disbursements, jointly and severally, the one
paying, the other to be absolved.
_______________________
Steenkamp
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:

In person.
FIRST
TO THIRD RESPONDENTS:       Ms L X Dzai
Instructed
by:

The State Attorney, Cape Town (P Melapi).
[1]
Act
55 of 1998 (EEA).
[2]
Act
3 of 2000 (PAJA).
[3]
The
Minister of Justice and Correctional Services; and the
Director-General: Justice and Constitutional Development,
respectively.
[4]
The
second respondent (Ms Lindiwe Sisulu at the time).
[5]
Only
the first to third respondents oppose the relief sought, although
the applicant cited eleven respondents who may have an
interest in
the dispute. When I refer to “the respondents” as a
matter of convenience, I refer to the first, second
and third
respondents.
[6]
Du
Toit et al,
Labour
Law through the Cases
(LexisNexis,
Issue 21, 2018) at EEA-37 s.v. “alleged” (footnotes
omitted).
[7]
Sasol
Chemical Operations (Pty) Ltd v CCMA
[2019]
1 BLLR 91
(LC); (2019) 40
ILJ
436
(LC) esp paras [12] – [20].
[8]
[2006]
12 BLLR 1156
(LC) par [18].
[9]
[2005]
12 BLLR 1172
(LAC) par [28].
[10]
[2018]
11 BLLR 74
(LC) par [25].
[11]
Du
Tot et al,
Labour
Relations Law: A Comprehensive Guide
(6
ed 2015) at 696 (footnotes omitted). (Published after the amendments
to s 11 of the EEA).
[12]
The
Incentive Policy Framework makes it clear that “first time
participants” includes employees who had previously
resigned
from the public service and who are re-appointed in the public
service.
[13]
1997 (11) BCLR 1489
(CC) para [53].
[14]
See
Harksen
v Lane
par
[57].
[15]
Above
par [53].
[16]
Above
par [52]. See also
IMATU
v City of Cape Town
[2005] 11 BLLR 1084
(LC) [per Murphy AJ].
[17]
IMATU v
City of Cape Town
[2005] 11 BLLR 1084
(LC) par [82].
[18]
SAMWU
v Pikitup Johannesburg (SOC) Ltd
[2017]
ZALCJHB 183 (LC) par [6].
[19]
Minister
of Correctional Services v Duma
[2017]
ZALAC 78
, overturning (on the facts) the judgment in
Duma
v Minister of Correctional Services
(2016)
37
ILJ
1135 (LC)
[2005] ZALC 25
; ;
[2016] 6 BLLR 601
(LC).
[20]
Paras
[21] – [24].
[21]
Mangena
and others v Fila South Africa (Pty) Ltd and others
(2010) 31
ILJ
662
(LAC).
[22]
Association
of Mineworkers and Construction (“AMCU”) v Minister of
Labour
(2018)
39
ILJ
1549 (LC) paras [19] to [23].
[23]
Free
Market Foundation v Minister of Labour
(2016) 37
ILJ
1638 (GP);
[2016] 3 All SA 99
(GP);
2016 (4) SA 496
(GP);
[2016] 8
BLLR 805
(GP) par [81].
[24]
The
Minister of Justice and Correctional Services; and the
Director-General: Justice and Constitutional Development.
[25]
Oudekraal
Estates (Pty) Limited v The City of Cape Town
[2004] 3 All SA 1
(SCA) para [26].
[26]
Khumalo
and Another v MEC for Education, KwaZulu-Natal
2014 (5) SA 579
(CC;
2014 (3) BCLR 333
(CC); (2014) 35
ILJ
613 (CC); paras [35] to [37].
[27]
The
Minister of Public Service and Administration.
[28]
[2016]
9 BLLR 942
(LC); (2016) 37
ILJ
2872 (LC).
[29]
Naidoo
and Others v Parliament of the Republic of South
Africa (C 865 / 2016) [2018] ZALCCT 38 (12 December 2018).
[30]
Du
Toit et al,
Labour
Relations Law: A Comprehensive Guide
(6
ed 2015) at 683.
[31]
Naidoo
par
[36].