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[2019] ZALCPE 28
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Qalashe v Member of the Executive Council for the Department of Health, Eastern Cape (PS29/17) [2019] ZALCPE 28; [2020] 4 BLLR 394 (LC) (22 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case No: PS29/17
In the matter between:
NCEBAKAZI FRANCES
QALASHE
Applicant
and
MEMBER OF THE
EXECUTIVE COUNCIL FOR
THE DEPARTMENT OF
HEALTH, EASTERN CAPE
Respondent
Heard:
21 October 2019
Delivered:
22 October 2019
JUDGMENT:
PRELIMINARY POINTS AND AN APPLICATION FOR A POSTPONEMENT
TLHOTLHALEMAJE, J
[1]
In
her statement of claim filed and delivered on 26 July 2017,
the applicant alleged that she was being unfairly discriminated
against as defined in section 6(4) of the Employment Equity Act,
[1]
as she performed the same or substantially the same work or work of
equal value, but was remunerated unequally on an arbitrary
ground.
She seeks an order that she be remunerated equal to the difference
between the remuneration received and what she would
have received
had she been remunerated on level 10 from her date of employment, or
in the alternative, an order of compensation.
[2]
The applicant was employed with effect from
25 April 2008 as Assistant Director, Administration at
Tafalofefe Hospital.
The letter of appointment in this regards
indicated that the position she was appointed into was at Level 9.
The applicant in May 2011
requested a transfer to Fort Gray
Hospital, and was transferred accordingly, and had resumed her duties
on 3 May 2011.
The respondent recorded her transfer to the
position of Assistant Director; Hospital & Patient Admin, Level
9.
[3]
The basis of the applicant’s alleged
discrimination is that after her appointment, she became aware that
her counterparts
in other hospitals were employed in the same
positions and with similar job descriptions, but were remunerated at
level 10, whilst
she remained remunerated at level 9. She further
contends that the post that she occupied was advertised at
remuneration level
10.
[4]
In substantiation of her case, the
applicant’s contentions are that her initial appointment in
April 2008 was at level
9 as an Assistant/Deputy director:
Administration, which was in the vacant position of Middle Manager:
Administration, at level
10. This was so in that when the previous
incumbent of the post, a Ms Mtintsilana left, the post was
subsequently advertised at
level 10. Furthermore, her comparator was
a Mr Tshepo Solani, who was appointed to the post of Middle Manager,
Admin at level 10
at the Aliwal North Hospital in October 2009.
[5]
The respondent in its response to the
statement of claim denied that the applicant was discriminated
against. Its statement of response
was served and delivered out of
time, and it had sought condonation in that regard by way of a
substantial application.
[6]
Having had regard to the degree of lateness
and the explanation proffered in that regard, and further having had
regard to the interests
of justice, I see no reason why the late
filing of the response to the statement of claim ought not to be
condoned.
[7]
In the response to the statement of claim,
the respondent contends that the applicant’s transfer was a
straight one since
Fort Gray Hospital had a vacant funded post at the
level that the applicant was transferred to as per her request, which
was also
a transfer at the same level 9 that the applicant used to
occupy whilst at Tafalofefe Hospital. The applicant further contends
that a straight or horizontal transfer which the applicant requested
to Fort Gray Hospital would not have been approved had the
post she
was to be transferred to been at salary level 10.
[8]
The
respondent further submitted that to the extent that it may be found
that the applicant had indeed initiated her own transfer
to a post
with a higher salary level, in any event, the provisions of Chapter
IV, section 14(6)(b) of the Public Service Act
[2]
are such that an employee who is transferred to a higher salary post
shall not by mere reason of that transfer, be entitled to
a higher
salary.
[9]
The respondent denied that the applicant
was discriminated against or that she performed the same or
substantially the same work
or work of equal value by being
remunerated unequally on arbitrary grounds, and that her claim was
frivolous and vexatious. This
was so in that the applicant was never
appointed as ‘Assistant/Deputy Director in any vacant Middle
Manager: Admin post when
she commenced her employment, and was simply
appointed as Assistant/Deputy: Admin at salary level 9, as confirmed
in her letter
of appointment.
[10]
The parties completed a pre-trial minute on
20 December 2018. At clause (xi) of the minutes, the
parties indicated that
no preliminary points would be raised at that
stage. The matter having been set down for trail on 21 October 2019,
the
respondent on 15 October 2019, filed and served its
substantive heads of argument, in which it raised preliminary points
to the effect that the applicant’s statement of case was
defective on the basis that;
10.1
She had failed to plead a specific ground
listed or unlisted upon which she alleges that the differentiation or
discrimination against
her took place, and,
10.2
She had failed to plead any other specified
or clearly stated arbitrary ground upon which, she alleges that the
differentiation
against her took place, and,
10.3
She
could not
have been lawfully appointed to the post of Assistant Director: Admin
in the vacant post of Middle Manager: Admin, as
no post of Middle
Manager: Admin existed at Tafalofele Hospital at the time of her
appointment
[11]
To the extent that the above preliminary
points are raised, it is trite that in line with the authorities
referred to below, the
Court would in any event have
mero
muto,
raised similar concerns as raised
by the respondent, to the extent that the applicant based her case of
unfair discrimination on
arbitrary grounds.
[12]
In
Aarons
v University of Stellenbosch
[3]
it
was held that an applicant before the court must do more than just
allege discrimination on arbitrary grounds. In addition, an
applicant
must allege more than merely differentiation in respect of the
treatment meted out by the employer or attributable to
the employer.
To this end, the applicant must allege that the reason for the
different treatment is based on an analogous ground
that adversely
affects some characteristic that impacts upon her human dignity,
failing which the claim would be excepiable as
no cause of action
would have been disclosed.
[13]
In
line with the approach, a litigant claiming unfair discrimination on
an unidentified, arbitrary ground must clearly identify
the ground
relied upon and demonstrate that the ground relied upon shares
characteristics with those specified grounds listed in
section 6 (1)
of the EEA. That much was reinforced in
SAMWU
v Pikitup Johannesburg (SOC) Ltd
[4]
where
Van Niekerk J stated the following;
“
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).”
[14]
The respondent’s contentions are
essentially that the applicant’s case that she was unfairly
discriminated against on
arbitrary grounds was unsustainable, as she
had not stated a specific ground upon which she alleged the
differentiation or discrimination.
[15]
In response to the respondent’s
preliminary points, it was submitted on behalf of the applicant that
on a proper reading of
the respondent’s heads of argument, the
respondent essentially seeks to raise an exception to the applicant’s
statement
of case, and that the procedure followed in that regard was
incorrect, as the provisions of Rule 11 of the Rules of this Court
would have been appropriate.
[16]
The
submissions made on behalf of the applicant are not without merit.
Rule 11 of the Rules of this Court deals with interlocutory
applications provide that such applications or other applications
incidental to, or pending, proceedings referred to in these rules
that are not specifically provided for in the rules; and
any
other applications for directions that may be sought from the Court
must
be brought on notice, supported by affidavit
[5]
.
Rule 11 of the Rules of this Court finds reinforcement in Clause 10.3
of the Practice Manual of this Court,
[6]
which provides that all preliminary points raised in a statement of
claim and any response to a statement of claim (including but
not
limited to applications for condonation of the late referral of a
statement of claim or the late filing of any statement of
response,
special pleas and exceptions) will be set down for hearing on an
interlocutory basis.
[17]
It
was submitted on behalf of the respondent that the provisions of the
Practice manual are not binding. It is acknowledged that
Clause 2.2
of the manual provides that it seeks to obtain uniformity
amongst judges in respect of practice rulings, and that
Judges are
not bound by practice directives, as the manual is not intended to
limit judicial discretion. However, the contention
that the
provisions of the manual are not binding on the parties cannot be
correct in the light of what was stated by the Labour
Appeal Court in
Samuels
v Old Mutual Bank
[7]
,
to
the effect that these provisions are binding, even though the Labour
Court’s discretion in interpreting and applying them
remained
intact, depending on the facts and circumstances of a particular
matter before the court.
[18]
The message from the above LAC decision is
simple,
i.e
,
Judges ordinarily enjoy a discretion when it comes to the application
of the provisions of the manual. Parties however do not
have the
luxury of that discretion, as the whole purpose of the manual, which
is to
promote access to justice by all those whom the Labour
Court serves, to promote consistency in practice and procedure, and
to set
guidelines on the standards of conduct expected of those who
practise in the Labour Court would be defeated, if the parties were
to comply with its provisions as and when it suited them.
[19]
There
is no doubt, as correctly conceded on behalf of the applicant, that
the preliminary points raised by the respondent have merit.
From the
statement of claim as is, and in something akin to the facts in
Naidoo
and Others v Parliament of the Republic of South Africa
,
[8]
the applicant did nothing more than to describe the difference in pay
as arbitrary. However, in the light of the principles flowing
from
Samuels
v Old Mutual Bank
,
it is taken into account that even though the respondent was within
its rights to raise the preliminary points, and irrespective
of the
merits of those points, the fact remains that the manner with which
they were raised is not in compliance with the provisions
of Rule 11
of the Rules of this Court, read together with Clause 10.3 of the
Practice Manual.
[20]
Even if the Court were to exercise its
discretion in the light of the non-compliance with the manner with
which the preliminary
points were raised, such a discretion in favour
of disposing of the preliminary points in their form would not do
justice to the
applicant, as it would deprive her of having her case
properly determined, irrespective of the merits of her claim.
[21]
It follows that the preliminary points as
raised by the respondent in their form cannot be considered at this
stage of the proceedings,
meaning that these ought to be brought
before the Court in a manner prescribed. This also means that
applicant’s application
for a postponement ought to be granted
to afford her an opportunity to properly consider these preliminary
points once they are
properly brought before the Court. It is
therefore not even necessary to dwell into the submissions made for
and against
the application for a postponement.
[22]
In the light of the above conclusions, it
follows that any orders in regards to costs should be considered at
the hearing of those
preliminary points as shall be enrolled in the
opposed motion roll.
[23]
Accordingly, the following order is made;
Order:
1.
The trial proceedings are postponed
sine
die.
2.
The late filing of the respondent’s
statement of response is condoned.
3.
The respondent is granted leave to file and
serve an application in respect of the preliminary points it wishes
to raise, and to
do so as prescribed by the provisions of Rule 11 of
the Rules of this Court, read together with Clause 10.3 of the
Practice Manual
of this Court.
4.
The above application must be filed and
delivered within 14 days from the date of this order.
5.
The applicant shall file an answer to the
application mentioned in (2) above within seven days from the date of
service.
6.
The respondent may, if it so desires, file
a replying affidavit within 7 days from the date of receipt of the
answering affidavit.
7.
Once the pleadings are closed in respect of
this interlocutory application, the respondent may approach the
Office of the Registrar
to enrol the matter on the opposed motion
roll on an expedited basis.
8.
The wasted costs occasioned by today’s
proceedings shall be determined at the hearing of the interlocutory
application.
_________________
Edwin Tlhotlhalemaje
Judge of the Labour Court
of South Africa
Appearances:
For
the Applicant:L Voultsos, instructed by Bate Chubb & Dicson
Inc
For
the Respondent:S Phoshere, instructed by the Office of the Stare
Attorney, Port Elizabeth
[1]
Act
55 of 1998
[2]
Act
103 of 1994
[3]
(2003) 24 ILJ 1123 (LC)
[4]
[2017]
ZALCJHB 183 (LC) at para [6]; See also
Matjhabeng
Municipality v Mothupi NO and Others
(2011)
32 ILJ 2154 (LC) at para 40 where it was held:
‘
...
a litigant who founds a cause of action on unfair discrimination
based on an unlisted ground bears the onus to establish the
discrimination and to prove that such discrimination is unfair.’
[5]
Rule
11:
Interlocutory
applications and procedures not specifically provided for in other
rules:
(1)
The following applications must be brought on notice, supported by
affidavit:
(a)
Interlocutory applications;
(b)
other applications incidental to, or pending, proceedings referred
to in these rules
that are not specifically provided for in the
rules; and
(c)
any other applications for directions that may be sought from
the court.
(2)
The requirement in subrule (1) that affidavits must be filed does
not apply to applications
that deal only with procedural aspects.
(3)
If a situation for which these rules do not provide arises in
proceedings or contemplated
proceedings, the court may adopt any
procedure that it deems appropriate in the circumstances.
(4)
In the exercise of its powers and in the performance of its
functions, or in any incidental
matter, the court may act in a
manner that it considers expedient in the circumstances to achieve
the objects of the Act.
[6]
Clause
10.3:
Interlocutory
applications: points in limine, exceptions and special pleas that do
not require the hearing of oral evidence.
10.3.1 Except for
those matters that are the subject of case management (where the
judge concerned will issue directions
on how interlocutory matters
are to be dealt with), all preliminary points raised in a statement
of claim and any response to
a statement of claim (including but not
limited to applications for condonation of the late referral of a
statement of claim
or the late filing of any statement of response,
special pleas and exceptions) will be set down for hearing on an
interlocutory
basis.
10.3.2 Once the
preliminary point is ripe for determination, any of the parties may
index and paginate the court file and
request that the matter be
enrolled for hearing without delay. Filing of heads of argument is
not a prerequisite for making this
request, though the registrar
may, if directed to do so by a judge, call upon the parties to file
their heads of argument before
allocating the matter for hearing.
10.3.3 Despite
the provisions of this paragraph, any interlocutory application that
is not opposed or in which any order
by consent is sought may be
dealt with by a judge in chambers.
[7]
[2017]
7 BLLR 681
(LAC); (2017) 38 ILJ 1790 (LAC) at paragraphs [14] to
[15], where it was held;
“
The
consolidated practice manual which came into operation on 2 April
2013 constitutes a series of directives issued by the Judge
President over a period of time. Its purpose is,
inter alia
,
to provide access to justice by all those whom the Labour Court
serves; promote uniformity and/or consistency in practice and
procedure and set guidelines on standards of conduct expected of
those who practise and litigate in the Labour Court. Its objective
is to improve the quality of the court’s service to the
public, and promote the statutory imperative of expeditious dispute
resolution.”
And,
“
The
practice manual is not intended to change or amend the existing
Rules of the Labour Court but to enforce and give effect to
the
Rules, the Labour Relations Act as well as various decisions of the
courts on the matters addressed in the practice manual
and the
Rules. Its provisions therefore, are binding. The Labour Court’s
discretion in interpreting and applying the provisions
of the
practice manual remains intact, depending on the facts and
circumstances of a particular matter before the court.
[8]
ZALCCT
38;
[2019] 3 BLLR 291
(LC); (2019) 40 ILJ 864 (LC)