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[2014] ZAEQC 1
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Moosa v Phumelela Gaming and Leisure Limited (61600/2012) [2014] ZAEQC 1 (29 July 2014)
EQUALITY
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
61600/2012
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
DATE: 29 JULY
2014
In the matter
between:
ESSOP
MOOSA
..............................................................................................................................
Complainant
and
PHUMELELA GAMING
AND LEISURE
LIMITED
.................................................................
Respondent
JUDGMENT
MAKGOKA. J
[1] The complainant
seeks to be reinstated or employed by the respondent as a race
caller. He contends that the respondent’s
refusal reinstate or
employ him as such, contravenes the provisions of the Employment
Equality Act 55 of 1998 (EEA). He further
alleges that the
respondent’s conduct constitutes discrimination in
contravention of the Promotion of Equality and Prevention
of Unfair
Discrimination Act 4 of 2000 (PEPUDA).
[2] That
discrimination is said to be based on race, as the complainant
alleges that the respondent’s reason for its refusal
to
reinstate or employ him, is that he is not white. According to the
complainant, the respondent only employs white race callers.
Flowing
from that, the complainant seeks a two-fold relief. First,
compensation for alleged loss of earnings and second, reinstatement
to his previous position as a race caller with the respondent.
[3] In answer, the
respondent has raised two preliminary points. First, that this court
lacks jurisdiction to grant the relief sought
by the complainant. The
contention is that the applicant seeks a labour law remedy, which
only the Labour Court has the exclusive
jurisdiction to determine in
terms of s 49 of the EEA, read with s 157(1) of the Labour Relations
Act 95 of 1995 (LRA).
[4]
Secondly, the respondent pleads
exceptio
res judicata.
It
contends that the Conciliation Commission for Mediation and
Arbitration (CCMA) and the Labour Court have finally determined the
dispute between the parties. With regard to the substantive merits of
the application, the respondent opposes the relief sought
by the
complainant on the basis that the relationship of trust between the
parties has broken down due to the complainant’s
unlawful
conduct.
[5]
The factual background is fairly straight-forward. The respondent is
involved in the gaming and horse racing industry. During
1990, the
complainant was employed by respondent’s predecessor, the
Highveld Racing Authority, as a full-time horse-racing
commentator.
In May 2001, the complainant was medically boarded due to ill health.
During the complainant’s absence, the
respondent reviewed and
restructured some of its operations. Among others, it was decided
that its race schedule and business no
longer justified the
employment of full-time commentators. Therefore, it was decided that
these positions should be made redundant
and that the commentating
function would function would be contracted to individuals on an
ad
hoc
basis,
as and when required. Some race callers were indeed retrenched, and
some were retained on an
ad
hoc
basis,
while some accepted alternate positions with the respondent.
[6] The complainant
was declared fit to return to work in March 2003. On his return, it
was explained to him that as a result of
the restructuring referred
to in the preceding paragraph, the respondent could no longer employ
him as a full-time race commentator.
He was offered an alternative
position, without loss of salary or benefits, with effect from 1 May
2003, with occasional calling
of race meetings. The complainant says
that the new position was never properly discussed with him as to
what it entailed. He alleges
that a senior representative of the
respondent failed to attend a meeting scheduled to discuss the
alternative position. However,
nothing really turns on this, for the
present purposes. However, it is safe to accept that given the
complainant’s insistence
on being employed as a race caller,
the complainant most probably would have declined that position. The
complainant was eventually
retrenched on 31 August 2003. That,
briefly, is the background.
[7]
I turn now to the respondent’s points
in
limine.
Ordinarily,
I would consider the defence of jurisdiction first, as a finding in
that regard is potentially dispositive of the matter.
However, given
the circumstances of the case, I shall first consider the defence of
res judicata. For this defence, the respondent
relies on the facts
set out in the in the next paragaphs.
[8] After the
complainant was retrenched, he referred the matter to the CCMA,
alleging unfair retrenchment. The referral was delivered
outside of
the prescribed time period, and the condonation application for its
late delivery was dismissed by the CCMA on 24 January
2004. The
complainant applied to the Labour Court for the review of the CCMA’s
dismissal of his condonation application.
On the 4 February 2005, the
Labour Court dismissed the complainant’s review application.
[9] On 1 December
2006, the complainant lodged an application against the respondent in
terms of section 20 of PEPUDA, in which
the complainant alleged that
he was discriminated against during his term of employment with the
respondent. The respondent opposed
the application, and after
delivering its answering affidavit, the complainant withdrew the
application on 26 February 2007.
[10] On 25 May 2007
the respondent was informed by the South African Human Rights
Commission (SAHRC) in writing that the complainant
had complained to
it regarding his retrenchment. On 30 May 2007 the respondent wrote to
the SAHRC, refuting the complainant’s
allegations. There was
nothing further subsequent to the respondent’s letter.
[11]
On 28 May 2008 the complainant again referred an alleged unfair
dismissal claim to the CCMA, challenging his retrenchment by
the
respondent in 2003. The respondent opposed the application and argued
in limine
that
the matter was
res
judicata.
On
15 July 2008 the CCMA upheld the respondent’s point
in
limine.
On
28 August 2008, the complainant again referred his 2003 retrenchment
in the Labour Court. The respondent has opposed this application
in
which it also seeks an order barring the complainant from instituting
any further litigation against it arising from the 2003
retrenchment.
It is not clear from the papers whether that application has been
finalized, and if so, the outcome thereof.
[12] On 11 November
2009, the complainant launched an application in the High Court
(North Gauteng), seeking an order in terms of
section 82 Promotion of
Access to Information Act 2 of 2000 (PAIA), compelling the respondent
to disclose certain documents and
information, including its
employment equity plans and reports. The order was sought on the
basis that the respondent had refused
to employ him on discriminatory
grounds, and the documents sought in terms of PAIA may ultimately
show that he had a protectable
right. The respondent opposed the
application, and on 5 November 2010 the application was dismissed
with costs.
[13]
The respondent argues that on the above facts, the matter is
res
judicata.
The
requirements for a successful reliance on the
exceptio
res judicata
were
restated in
National
Sorghum Breweries
v
International
Liquor Distributors
[2000] ZASCA 159
;
2001
(2) SA 232
(SCA) para 3 of the majority judgment as follows:
‘
The
fundamental question ... is whether the same issue is involved in the
two actions: in other words, is the same thing demanded
on the same
ground, or, which comes to the same, is the same relief claimed on
the same cause, or, to put it more succinctly, has
the same issue now
before the Court been finally disposed of in the first action?’
[14]
From the above, I have no hesitation in coming to the conclusion that
the respondent’s defence of
res
judicata
was
well-taken. The complainant’s complaint has been finally
determined, not once, but twice, respectively, by both the CCMA
and
the Labour Court. This should be the end of the matter. However,
because of the complainant’s past history of reinventing
issues
that have been ventilated before, I consider it necessary to also
consider the issue of jurisdiction.
[15] In that regard,
the respondent contends that the complainant’s complaint is a
labour dispute, and as such, has been excluded
from the jurisdiction
of this court by virtue of s 5(3) of PEPUDA. That section provides
that PEPUDA does not apply to any person
to whom and to the extent to
which the EEA applies. Section 49 of the EEA clothes the Labour Court
with exclusive jurisdiction
to determine such disputes. The power to
decide whether an employee has been unfairly discriminated against is
also reserved exclusively
for the Labour Court. In terms of s 50(1)
(d) and (e) of the EEA, the Labour Court is entitled to award
compensation. This, it
should be bome in mind, is part of the relief
sought by the complainant. It would therefore appear that the proper
forum to deal
more appropriately with the matter is the CCMA or the
Labour Court.
[16]
On behalf of the complainant, Ms
Mboweni,
argued
that this court has the discretion whether or not to refer the matter
to an alternative forum. I agree in principle with
this submission.
Section 20 of PEPUDA provides, among others, for a decision to be
made by the presiding officer whether the matter
is to be heard in
the equality court or whether it should be referred to 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. Section 20(4)
provides a broad guiding
framework when a decision has to be taken whether to refer the matter
to an alternate forum. It reads:
‘
The
presiding officer, before making a decision to refer a matter as
contemplated in subsection (3), must take all relevant circumstances
into account, including the following:
(a) The personal
circumstances of the parties and particularly the complainant;
(b) The physical
accessibility of any contemplated alternative forum;
(c) The nature of
the intended proceedings and whether the outcome of the proceedings
could facilitate the development of judicial
precedent and
jurisprudence in this area of the law;
(d) The views of the
appropriate functionary at any contemplated alternative forum.’
[17] It seems to me
that in addition to the factors specified in (a) - (d), the presiding
officer is enjoined to consider other
‘relevant factors’
before deciding to refer the matter to an alternate forum. As to what
‘relevant factors’
might be in a particular case, would
depend obviously on the facts of each case. One example that
immediately comes to mind is
where multiple rights are implicated,
some simultaneously justiciable in this court and in the alternative
forum. In such instance
the rights might be so closely intertwined
and overlapping, such that a referral to an alternative forum cannot
be made without
watering down the essence of the complainant’s
claim.
[18]
In the present case, I have decided not to refer the matter to either
the CCMA or the Labour Court, despite my inclination
that those could
deal more appropriately with the matter. In reaching that decision, I
considered as ‘relevant factors’
the following: First,
that both the CCMA and the Labour Court have, twice, respectively,
been seized of the dispute between the
parties and have both
dismissed the complainant’s case. It would therefore be an
exercise in futility to refer the matter
to either of those
fora
,
where the outcome is a foregone conclusion. Second, policy dictates
that there should be finality to legal disputes. It is certainly
not
in the public interest that courts are seized of the same disputes
concerning the same parties. Third, the interests of the
respondent
should also be taken into consideration. It has already defended the
complainant’s claims, at a significant cost,
and it would be
most unfair to expect it to go back to the either the CCMA or the
Labour Court.
[19]
For the same reason mentioned in para [14] above, I proceed to
consider the respondent’s refusal to employ the complainant
as
an
ad hoc
race
caller. It is common cause that between 2003 and 2009 the complainant
engaged in threatening and abusive behaviour towards
the respondent’s
employees and contractors. He threatened them with physical harm and
death, conveyed in the most distasteful
and profane language.
Examples abound in the papers of this. For that reason the
respondent’s stance is that it does not
wish to have a further
relationship with the complainant, apart from the fact that it has no
vacancies for race callers.
[20] The complainant
states that the letters and emails contained the threats and
profanities were written in anger and his judgment
was clouded. The
complainant therefore says that the issue is water under the bridge,
and he should be given another opportunity
to work for the respondent
as a race caller. That might so as far as the complainant is
concerned. But it requires the consent
of both parties to conclude an
agreement. The respondent has not consented to further contract with
the complainant.
[21] The complainant
seems to suggest that by agreeing to meet him during 2009, the
respondent is now estopped from refusing to
employ him. The meeting
in question took place on 6 August 2009 between the complainant and
representatives of the respondent.
The purpose of that meeting, and
the outcome, is contained in a letter by the chief executive officer
of the respondent to the
complainant, dated 17 August 2009. The
following is recorded in the letter:
(a)
The complainant made a request at the meeting that he be employed as
an
ad hoc
race
commentator by the respondent;
(b) The respondent
considered the request and refused it, on the grounds that the
complainant had made several serious threats of
violence against its
employees and contractors.
(c) The
complainant’s inability to control his emotions and to conduct
himself in a professional manner ‘is of great
concern to
management, and is incompatible with the company’s work
environment and would be a risk to the respondent’s
business’.
(d)Therespondent
accordingly decided that it was not in the company’s interests
to employ the complainant.
(e) In any event,
Phumelela has no vacancies for a race commentator.
Subsequent
to that, the complainant responded by way of a letter dated 27 August
2009, in which he maintained his contention that
the respondent had
treated him unfairly and that there was no valid reason why he could
not be placed on the respondent’s
roster as an
ad
hoc
race
caller.
[22]
The respondent contends that its refusal to employ the applicant as a
race-caller is not based on any discrimination, but on
the break-down
in trust between the parties, given the applicant’s own conduct
as set out above. It is further submitted
that a finding of no
discriminatory conduct on the part of the respondent, takes the
proceedings out of the purview of PEPUDA.
I agree. What was required
of the complainant was to produce evidence, on a
prima
facie
basis,
that he was discriminated against on. This required more than a mere
allegation. This, the complainant has failed to establish.
[23]
On the contrary, the respondent has placed facts before this court
that its refusal to employ the complainant is based on his
past
conduct towards it and its employees and contractors - the
threatening, abusive, and unlawful behaviour referred to above.
The
respondent has therefore proved that no discrimination took place as
alleged by the complainant. The mere fact there are no
black race
callers employed by the respondent, is not in itself, sufficient to
establish discrimination on race. As correctly argued
by Mr
Ferreira,
counsel
for the complainant, the complainant has no right to a contract with
the respondent, in any capacity, and that the respondent
is entitled
to refuse to enter into a contract, provided that it does not do so
for impermissible, discriminatory reasons.
[24]
Counsel for the complainant, Ms
Mboweni,
urged
me to consider the fact that the respondent has a monopoly of the
racing industry. Therefore, so was the argument, the respondent’s
refusal to employ the complainant as a race caller, effectively means
the complainant is prohibited from exercising his chosen
trade as a
race caller. There is no merit in this argument. As explained in the
preceding paragraph, the complainant does not.have
a right to be
contracted to the respondent, and the respondent has no obligation to
employ the complainant, as long as it does
not refuse to employ him
on the prohibited grounds. I have already found this not to be the
case.
[25] In the result
the following order is made:
1. The complainant’s
claim is dismissed;
2. There is no order
as to costs.
T.M.MAKGOKA
JUDGE OF THE HIGH
COURT
DATE HEARD : 11
APRIL 2014
JUDGMENT DELIVERED :
29 JULY 2014
FOR THE COMPLAINANT
: ADV L. J. MBOWENI
INSTRUCTED BY :
PRETORIA JUSTICE CENTRE
FOR THE RESPONDENT :
ADV. N. FERREIRA
INSTRUCTED BY :
BOWMAN GILFILLAN ATTORNEYS