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[2019] ZALCCT 6
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Gmagara Local Municipality v IMATU obo Mzuza and Others In Re: IMATU obo Mzuza and Others v Gamagara Local Municipality (C582/17) [2019] ZALCCT 6; [2019] 7 BLLR 696 (LC); (2019) 40 ILJ 2085 (LC) (4 March 2019)

the
labour court of South Africa, cape town
judgment
case
no: C 582/17
reportable
of
interest to other judges
In
the matter between:
THE
GMAGARA LOCAL MUNICIPALITY
Applicant
And
IMATU
obo :
a
mzuza
Respondent
t
d semamai
t
h gaothaewe
a
visser
In
re:
IMATU
OBO:
A
MZUZA
T
D SEMAMAI
T
H GAOTHAEWE
Applicant
A
VISSER
and
THE
GAMAGARA LOCAL MUNICIPALITY

Respondent
Heard
:
26 February 2019
Delivered
:
4 March 2019
Summary:
Exception – alleged unfair discrimination on the ground of
geographical location.
judgment
STEENKAMP
J
Introduction
[1]
This is an
exception taken by the Gamagara Local Municipality against the
statement of claim filed by IMATU
[1]
on behalf of four of its members.
[2]
They claim unfair discrimination in terms of s 6(4) of the Employment
Equity Act
[3]
on an arbitrary
ground, namely geographical location. The Municipality claims that it
does not disclose a cause of action.
Background facts and
discrimination claim
[2]
The four union members are all employed by the Municipality as
electricians in Kathu in
the Northern Cape. The Municipality also
employs three electricians at Olifantshoek. The Olifantshoek
electricians occupy a higher
post level and earn more than their
Kathu counterparts.
[3]
IMATU has referred a dispute to this Court in terms of s 6(4) of the
EEA, claiming unfair
discrimination in that:
3.1
There is a material difference in terms and conditions of employment
between the Kathu electricians
and the Olifantshoek electricians;
3.2
they perform the same or substantially the same work; and
3.3
the Municipality’s stated reason for the disparity is that
there is a geographical difference
between their working conditions;
and the Olifantshoek electricians perform work of both a high and a
low voltage nature, whereas
their Kathu counterparts only do work of
a low voltage nature.
[4]
IMATU states that “these reasons are not only factually
incorrect but are entirely
arbitrary in that there is no difference
of any significance – to such an extent that it justifies the
disparity –
between the work the Kathu electricians perform
vis-à-vis
the work the Olifantshoek electricians
perform”.
[5]
IMATU claims that “there is thus no lawful and justifiable
reason for the disparity,
the proffered reasons are arbitrary, and
the disparity amounts to direct or indirect discrimination in direct
contravention of
the provisions of s 6 of the Employment Equity Act”
The exception
[6]
The Municipality has taken an exception on the basis that the
statement of claim does not
disclose a cause of action because the
union “does not allege that the reason for the different
treatment is based on one
of the recognized grounds as stated in s
6(1) of the Employment Equity Act … or an analogous ground
that adversely affects
some characteristic that impacts on the human
dignity of the individual employees”.
Legal principles
[7]
The Labour
Court Rules do not expressly deal with exceptions. The Court imports
the provisions of Uniform Rule 23 in terms of Rule
11 of the Labour
Court Rules. In
Liquid
Telecommunication (Pty) Ltd v Carmichael-Brown
[4]
Van
Niekerk J warned against the willy-nilly importation of the Uniform
Rules of the High Court into the Labour Court rules. In
the absence
of any Labour Court rule dealing specifically with exceptions, it was
noted, Rule 11(3) enables parties to have recourse
to Rule 23 of the
Uniform Rules. However, it was emphasised,
“
this court has
never gone so far as to suggest that parties are obliged or entitled
to conduct litigation in this court on the basis
of the Uniform
Rules. It is clear from the formulation of Labour Court Rule 11(3)
that the Uniform Rules are not a form of default
procedure in this
court …. Rule 11(3) is permissive, and provides that the court
(not the parties and their representatives)
may sanction the use of a
procedure not contemplated by the Rules when this is appropriate. …
It is not an invitation to
practitioners to invoke the Uniform Rules
and conduct litigation in this court on the basis that the Uniform
Rules apply.”
[8]
Rule 11, the judgment continued, “is an appropriate basis on
which to file an exception,
and … Uniform Rule 23 is an
appropriate guide as to when and how an exception should be filed.
What I wish to emphasise
is that this limited application of Rule 11
is not the gateway to the wholesale importation and application of
the Uniform Rules,
and thereby the creation of a parallel system of
procedure in this court.”
[9]
The
well-known test on exception is “… whether on all
possible readings of the facts no cause of action may be made
out. It
is for the excipient to satisfy the Court that the conclusion of law
for which the plaintiff contends cannot be supported
on every
interpretation that can be put upon the facts”.
[5]
[10]
The object
of the pleading is to define the issues as to enable the other side
to know what case it must meet. This only requires
the applicant to
set out the architecture of its claims. This is done by pleading the
facta
probanda
and
not the
facta
probantia
.
[6]
Evaluation / Analysis
[11]
The starting point for the union’s claim is s 6 of the EEA:
“
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.”
[12]
Section 11 then deals with the burden of proof:
“
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.”
[13]
The
question of onus in terms of s 11 of the EEA is commented on in
Labour
Law through the Cases
[7]
:
“
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”.
[14]
As this
Court recently commented in
Sasol
[8]
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
[9]
-- 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.)”
[15]
And in
Kroukam
v SA Airlink (Pty) Ltd
[10]
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.”
[16]
More
recently, after the amendment of s 11, the court held in
Sethole
& others v Dr Kenneth Kaunda District Municipality
[11]
:
…
[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.”
[17]
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
[18]
[12]
:
“
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’.”
[19]
What, then, must the Court consider to decide whether on all possible
readings of the facts no cause of action
may be made out? As stated
before, it is for the excipient (the Municipality) to satisfy the
Court that the conclusion of law for
which the union contends cannot
be supported on every interpretation that can be put upon the facts.
[20]
The union
says that the ground of discrimination on which it relies is that of
“geographical location”. Even though
the union claims it
is factually incorrect, that is the rationale for differentiation on
which the Municipality relies. And recently,
whilst overturning the
judgment of the court
a
quo
on
appeal, the LAC in
Duma
[13]
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 :
“
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 , 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.”
[21]
In the case before me, the union’s evidence may still show at
trial that the nature and volume of work
that the Kathu electricians
performed was similar to that of the Olifantsfontein electricians.
The statement of claim does disclose
a cause of action. It is not
excipiable.
Order
The
exception is dismissed. Costs of this application are to be costs in
the cause of the trial.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
EXCIPIANT
(MUNICIPALITY):
Anton
Roux
Instructed
by Peyper attorneys.
RESPONDENT
(IMATU):
T
du Preez
Instructed
by Kramer Weihmann & Joubert.
[1]
The
Independent Municipal and Allied Trade Union.
[2]
Messrs
A Muzaza, T D Semamai, T H Gaothaelwe, and A Visser.
[3]
Act
55 of 1998 (the EEA).
[4]
[2018] 8 BLLR 804
(LC) pars 11–14.
[5]
H
v Fetal Assessment Centre
2015
(2) SA 193
(CC) par 10.
[6]
Simmadari
v ABSA Bank Ltd
(2018)
39
ILJ
1819
(LC) par 35.
[7]
Du Toit et al,
Labour
Law through the Cases
(LexisNexis,
Issue 21, 2018) at EEA-37 s.v. “alleged” (footnotes
omitted).
[8]
Sasol
Chemical Operations (Pty) Ltd v CCMA
[2019] 1 BLLR 91
(LC); (2019) 40
ILJ
436 (LC) esp paras [12] – [20].
[9]
[2006] 12 BLLR 1156
(LC) par [18].
[10]
[2005] 12 BLLR 1172
(LAC) par [28].
[11]
[2018] 11 BLLR 74
(LC) par [25].
[12]
Du Toit 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).
[13]
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).