(1)
(2)
(3)
KHUM
And REPUBLIC OF SOUTH AFRICA
IN THE EQUALITY COURT OF SOUTH AFRICA
(HELD AT GAUTENG LOCAL DIVISION , JOHANNESBURG)
Case Number: 2024-031166
EQ12/2024
First Claimant
Second Claimant
ALFA LAVAL SA (PTY) LTD Respondent
JUDGMENT -DECISION UNDER 20(3)(a) /JURISDICTION
FISHER J
Introduction
[1] This case involves the consideration of a challenge by the respondent, Apha
Laval SA (Pty) Ltd (AL) to the jurisdiction of this court sitting as an Equality
Court.
[2] The complaint s were lodged by the complainants, Ms Sambogo and Mr Gama.
They are both previous employees, of the respondent. They allege that they
suffered harassment and victimization at the hands of employees of AL whilst
so employed.
Nature of the claims
[3] Sambogo relies on allegations relating to her sexual harassment by other
employee s; She alleges that she was not afforded the necessary protections
and accommodations which were owed to her as employee in this context .
[4] Mr G ama alleges that, as a result of him making protected disclosures to AL of
information relating to the harassment being suffered by S ambogo , he was
victimized.
[5] Both applicants allege that they suffered occupational detriment which resulted
in them being suspended, made subject to a disciplinary process and ultimately
dismissed.
[6] The applicants seek , as estimated damages in the case of S ambogo an amount
of R10 286 500 and in the case of Gama, R 15 219 507.
Applicable legal principles
[7] Section 16(1) of the Promotion of Equality and Prevention of Unfair
Discrimination Act, 2000 (PEPUDA ) provides for a High Court to be an Equality
Court and for the appointment of a Judge as a Presiding Officer.
[8] Section 20(3)(a) , obliges the Equality Court before which a complai nt is lodged
to 'decide whether the matter is to be heard in the equality court or whether it
should be referred to another appropriate institution , body, court, tribunal or
other forum (hereafter referred to as an alternative forum) which, in the
presiding officer's opinion, can deal more appropriately with the matter in terms
of that alternative forum's powers and functions . . . .'
[9] Thus , before considering whether th is Equality Court has or lacks jurisdiction
the first mandatory inquiry is for me, as Presiding Officer, to consider whether
there is another forum which, in my opinion, can deal more appropriately with
the matter in terms of that alternative forum’s powers and functions1.
[10] This first inquiry does not necessarily engage questions of jurisdiction. It
specifically envisages a situation where there may be concurrent jurisdiction
with another forum .
[11] It stands to reason that , if an alternative forum having jurisdiction recommends
itself as being more appropriate than the Equality Court, it is unnecessary for a
determination to be made as to whether the Equality Court has jurisdiction or
not.
[12] AL contends in its attack on jurisdiction that PEPUDA , properly construed , does
not afford the Equality Court jurisdiction.
[13] It relies for this contention primarily on Section 5 of PEPUDA which deals with
the application of th at Act.
[14] Section “5 (3) reads :
“This Act does not apply to any person to whom and to the extent to which the
Employment Equity Act, 1998 (Act No. 55 of 1998) [EEA] applies .”
[15] The argument of AL goes that the dispute raised falls squarely within the EEA
and thus that the jurisdiction of the equality court is excluded.
1 Minister of Environmental Affairs and Tourism v George and Others 2007 (3) SA 62 (SCA) at para 5
[16] It is countered on behalf of the claimants that section 5(3) of PEPUDA does not
serve to oust the jurisdiction of this court. Essentially , the argument is to the
effect that the complaint has a wider reach than that accommodated by the
EEA.
[17] The arguments relating to the application of PEPUDA with reference to the
scope of the EEA require resort to interpretive measures relating to both Acts.
This seems not to be disputed.
[18] In terms of section 49 of the EEA , the Labour Court has exclusive jurisdiction
to determine any dispute about the interpretation or application of th e EEA,
except where the EEA provides otherwise .
[19] This precludes a determination by this court of the scope of the PEPUDA in this
context which , of necessity, implicates an interpretation of the EEA as to
application. Thus , this court cannot competently decide the jurisdictional
challenge.
[20] This limitation is, however , of no consequence in light of my conclusions
reached in relation to the first inquiry – being whether the Labour Court or the
Equality Court is the more appropriate forum.
Labour Court v Equality Court
[21] For centuries lawmakers have grappled with the forging of rules and principles
which are universal but germane to the particular relationship between
employer and employee. Such rules are geared towards the recognition of the
special hierarchical relationships which have , at their centre , the monetising of
labour, skills and services in a profit driven economy.
[22] Employment Law the world over recognises the positions of dominance and
subservience which generally adhere in these relationships. It seeks to create,
in so far as this is possible, an equal playing field, where the employee’s
fundamental rights are protected from arbitrary and abusive conduct by the
wielder of the purse.
[23] The employee/ employer relationship is recognised as distinct and special and
requiring special accommodations.
[24] Thus , the Legislature, mindful of the se unique circumstances and the
constitutional protections which are required in the Labour environment , has
enacted an extensive body of legislation which deals with the rights of
employees including rights precluding unfair discrimination in the context of this
special relationship. This includes the Labour Relations Act of 1995 (LRA) , the
Basic Conditions of Employment Act of 1997 and the EEA.
[25] The Labour Court , which is the specialist seat of Labour Relations is endowed
with unique rules and processes which are especially designed to
accommodate disputes originating in the employment environment . This
includ es the availability of alternatives to litigation such as conciliation ,
mediation and arbitration.
[26] I do not understand it to be argued seriously on behalf of the claimants that the
Labour Court lacks jurisdiction.
[27] As the matter stands the relief claimed is damages.
[28] There was an attempt made on behalf of the claimants, at the hearing , to
broaden th is relief. This attempt was not properly made and was , in any event ,
objectionable. It seems th is may have been a last-ditch attempt on the part of
the claimants to suggest that there was relief now claimed which would not be
available under the LRA.
[29] Even taking into account th is attempt at broadening the relief, the L abour Court
has the power to make any appropriate order .2 This specifically includes an
order directing the performance of any particular act; a declaratory order; an
award of compensatio n; an award of damages; an order that there be
comp liance with any employment law (which includes the EEA); a request for
an investigation and report ; and the general jurisdiction to deal with all matters
necessary or incidental to performing by the Labour Court of its functions in
terms of t he LRA or any other law.
Conclusion
[30] Thus , the relief claimed even on the proposed amended basis would be
available in some form under the LRA. What is more, the Labour Court
processes are specialist and superior to those offered in the Equality Court
given the employment context.
[31] There is no basis on which my election as to the appropriate forum should
attract costs on either side.
Order
[32] I make the following order:
It is declared that these complaints are properly dealt with according to the
provisions of the Labour Relations Act and they are accordingly removed from
the Equality Court.
2 Section 158(1)
FISHER J
JU
HANNES BURG
This Judgment was handed down electronically circulation to the
parties/their legal representatives by email and by uploading to the electronic
file on Case Lines. The date for hand-down is deemed to be 02 January 2025.
Heard:
Delivered:
APPEARANCES:
First and second Applicant's
Attorney:
Applicant 's Attorneys :
Responden t's Counsel:
Responden t's Attorneys : 24 October 2024
02 January 2025
T Ramasehla
Thibedi Ramasehla Attorneys
L Frahm-Arp
Fasken Incorporated (Bell Dewar
INC)