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[2018] ZAEQC 1
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S v Neotel (Pty) Ltd (EQ2/2015) [2018] ZAEQC 1; 2019 (1) SA 622 (GJ) (31 July 2018)
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EQUALITY COURT OF SOUTH AFRICA
HELD IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: EQ 2/2015
REPORTABLE
OF INTEREST TO OTHER JUDGES
In
the matter between:
S,
A
Complainant
and
NEOTEL
(PTY)
LTD
Respondent
JUDGMENT OF 31 JULY 2018
(JURISDICTION)
SPILG
J
INTRODUCTION
1.
The complainant instituted
proceedings before the Equality Court in a document entitled
Complainant's Submissions on
Notice of Directions Hearing in terms of Regulation 10(5)
.
It contained a rambling narrative of events from which it was
difficult to discern not only the grounds relied on but also
whether
the applicant’s complaint was limited to acts or
omissions constituting unfair discrimination on the
ground of gender
under s 8 of the Promotion of Equality and Prevention of Unfair
Discrimination Act, 2000 (“
the
Equality Act
“
).
2.
At that time the complainant was not
represented and the court assisted in securing
pro
bono
attorneys as
it was evident that she was out of her depth and I was satisfied that
it would be well-nigh impossible for the respondent,
Neotel (Pty)
Ltd, to discern the case it was called on to meet. There were a
number of false starts and an application was brought
to dismiss the
complaint in terms of regulation 12(3) (a) of the regulations
promulgated under the Equality Act. On 26 November
2015 I ruled that
the application was premature.
3.
At some later stage attempts were
made to settle the matter. This did not materialise and on 26
February this year at a directions
hearing under regulation 10(5) a
number of procedural directives were issued with the concurrence of
the parties. The directives
arose because the applicant’s legal
representatives wished both to reformulate the complaint and to
consolidate the proceedings
before the Equality Court with the High
Court action already instituted by the complainant against the
respondent. The directives
provided
inter
alia
that:
1. The Respondent is
to advise the complainant by 27 February 2018:
1.1 Whether it agrees
to the consolidation of this matter with the trial action instituted
by the complainant against the Respondent
out of this court under
case number 44273/2010 and which is set down for trial on 28 January
2019;
1.2 At what stage of
proceedings it intends raising an objection to the jurisdiction of
the Equality Court, subject to the court
itself being obliged to
comply with the provisions of
s 20(3)
to (5) of the
Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000
.
2. The complainant
shall consolidate the contents of the various documents containing
her particulars of complaint into the form
of a Declaration as
contemplated in Uniform
Rule 20
which shall be delivered by 19 March
2018.
3.
By 9 April 2018 the Respondent shall deliver its response to the
Declaration which shall be in the form of a Plea as contemplated
in
Uniform
Rule 22
1
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4.
The parties are to meet and jointly prepare a set of proposed
directives in order to enable this matter together with the
trial
action referred to earlier (if the Respondent has agreed thereto) to
be ripe for hearing by 28 January 2019. The proposed
directives are
to be delivered to the presiding judge by 18 April 2018
4.
At the subsequent directions hearing
held on 24 April 2018 a road map for the future litigation of the
case was agreed upon. As
a consequence the following directives were
issued:
1. The Court has
considered whether the matter should be referred to another forum in
terms of
section 20(3).
The parties do not consider that the matter
should be referred to another forum, other than to the extent that
the court is minded
to grant any of the relief sought by the claimant
in terms of
section 21(4).
The Court directs that the matter
not be referred to another forum at this stage.
2. The matter in the
Equality Court EC 2/2015 is consolidated with the trial action
instituted by the complainant against the Respondent
under case name
44273/ 2010 which has been set down for trial on 28 January 2019.
3. Both cases will be
case-managed to trial and heard by Judge Spilg.
4. The parties have
agreed that written submissions may be served by the parties
electronically on one another and must be filed
directly with Judge
Spilg’s registrar. The addresses for filing are;
NMvula@judiciary.org.za and BSpilg@judiciary.org.za,
with a hard copy
delivered to the judge's chambers.
5. The respondent's
plea must be filed by 14 May 2018. The respondent has indicated that
it wishes to raise a special plea of jurisdiction.
6. The complainant may
file a replication by 4 June 2018.
7. Pleadings will
close upon a replication being filed, or when the time period for
such filing has elapsed without further directions
being issued.
8. The question of the
jurisdiction of the Equality Court will be argued as a preliminary
legal question on 19 June 2018.
9. The parties will
file submissions on the question of jurisdiction on or before 14 June
2018.
10. Having heard the
argument on any special plea of jurisdiction raised in the Equality
Court matter EQ 2/2015:
10.1 the Court will
dismiss any claims brought in the Equality Court which it has no
jurisdiction to determine; and
10.2 the matter
will proceed to trial on all claims brought in the Equality Court
over which the Court has jurisdiction, together
with all claims
brought in the High Court.
10.3 If all claims
brought in the Equality Court are dismissed on the grounds of lack of
jurisdiction, the Court will:
10.3.1
first consider whether to exercise its power under
section 21(4) of the Equality Act;
10.3.2 proceed to
trial only on the claim filed under case number 44273/2010 and
sitting only as High Court Judge;
10.3.3 follow the
Uniform Rules of Court, subject to these directions.
11. The court has
advised that it will be in a position to give an order together with
reasons by 9 July 2018.
12. The plaintiff will
file any amendments to her claim in the High Court by 30 July 2018.
13. If the Court has
jurisdiction over any of the claims brought in the Equality Court:
13.1 The matter
will proceed to trial in parallel proceedings before Judge Spilg in
his dual capacity as a judge of both the
Equality Court and the High
Court;
13.2 In order to
give effect to the principles in section 4(1) of the Equality Act,
the case will proceed to trial expeditiously
and informally and rules
and procedures will be used that will facilitate participation as
required by the Equality Act;
13.3 The parties
will first attempt to agree on timetables and processes for all steps
towards trial preparation and in relation
to any interlocutory issues
that may arise;
13.4 If the
parties cannot agree on how to use the Uniform Rules of Court in
pursuance of the purposes of Equality Act, they
will approach Judge
Spilg in chambers for directions, who will direct the parties on
bringing interlocutory applications where
necessary;
13.5 The parties
will, where possible, avoid the duplication of any functions or steps
to be taken in the Equality Court and
the High Court;
13.6 In matters
that relate only to the High Court case, the parties will follow the
Uniform Rules of Court, subject to any
agreed directions and the
court adopting a case management process as and when advisable or
required.
14. The parties agree
to the following that applies to both claims:
14.1 The parties
will make discovery on the merits, together with delivery of the
discovered documents, under the first schedule
in respect of the
consolidated claims as contemplated in Uniform Rule 35 by 25 June
2018.
14.2 The issue
of further discovery will be dealt with at a case management meeting.
14.3 The parties
will submit requests for admissions by 20 August 2018 and exchange
further particulars in respect of both
claims by 10 September 2018.
15. The next case
management meeting to consider inter alia separation of issues and
further pre-trial procedural matters will be
held on 6 August 2018.
16. The parties must
arrange and attend a first pre-trial conference no later than 4
September 2018.
17. Uniform Rule 36
must be complied with to the extent applicable, in respect of any
inspections, examinations or expert testimony.
5.
It will be observed that proceedings
in the High Court action filed under case number 44273/2010 were
consolidated with the complaint
under the Equality Act and that the
Equality Court judge would be seized of both matters.
6.
There was a request to file papers
out of time and by agreement between the parties certain dates were
changed with the result that
this court indicated that it would be in
a position to give a decision on the special plea as to jurisdiction
by today.
7.
The respondent has raised three
special pleas, the first of which is in relation to jurisdiction. In
accordance with the directive,
and since it would be dispositive of
the Equality Court case if decided in the respondent’s favour,
argument has been heard
on that issue only.
SPECAIL
PLEA AS TO JURISDICTION
8.
In the main the respondent’s
special plea as to jurisdiction is premised on the submission that
the Employment Equity Act
55 of 1998 (“
the
Equity Act
“
)
applies to the applicant’s complaint with the result that this
court’s jurisdiction is ousted by reason of s 5(3)
of the
Equality Act. Section 5(3) provides that the Equality Act “
does
not apply to any person to whom and to the extent to which the
Employment Equity Act, 1998
applies”
.
9.
The respondent submitted that:
a.
This court sitting as an Equality
Court is not empowered to grant the relief sought in the High Court
action proceedings under case
number 44273/2010 as this relief is
sought outside the Equality Court’s powers;
b.
This court sitting as an Equality
Court;
i.
has no power to order that the
complainant’s employment claims be considered by the Labour
Court (see para 2.4.1 of the relief
claimed) as this usurps the
jurisdiction of the Labour Court and that in any event the matter has
been finally determined by the
CCMA
ii.
cannot direct the filing of a
rescission application in the CCMA against its decision to refuse
condonation (see para 2.4.2 of the
relief claimed) as this not
only usurps the CCMA’s jurisdiction but it also circumvents the
CCMA’s rules relating
to the filing of rescission applications;
iii.
is unable to refer the matter to the
CCMA for conciliation (see para 2.5 of the relief) in circumstances
where the CCMA has already
finally determined the same complaint.
c.
The complaint has already been
finally determined by the CCMA and the Equality Court does not have
the power to overturn this decision.
It
is evident that the special plea may be divided into three broad
categories.
CONCURRENCY
10.
The
first is that the Equality Court is a specialised court which adopts
expedited rules, a more informal procedure and applies
different
evidential thresholds
[1]
to that of the ordinary High Court. This was not pursued in argument.
I am comfortable that within the framework of the agreed
case
management process which the parties have bought into there will be
little likelihood of procedural prejudice.
11.
Similarly there are many cases where
the evidential threshold may vary. Provided the presiding judge is
qualified to sit in the
Equality Court and provided he or she does
not either subordinate or subsume the Equality Court hearing into an
ordinary High Court
trial or fails to properly apply the particular
evidential requirements of each there seems to be no good reason why
the two cases
cannot be consolidated considering that the same facts
will be heard in respect of the same parties. It will avoid the
need
to engage two judges to deal with the same subject matter
thereby reducing the amount of resources the court needs to allocate,
it will avoid the risk of different credibility findings and it will
reduce the parties’ legal bills.
More
importantly during one of the directional hearings
Adv Fourie
who had represented the complainant prior to leaving the independent
Bar referred the court to
Minister of Environmental Affairs
and Tourism v George and others
2007(3) SA 62 (SCA) at para 19
where Cameron JA (at the time) endorsed this approach in the
following passage:
“
Given
that the problem of concurrency will inevitably recur, the most
productive and expeditious way of achieving efficiency would
seem to
lie in the matter being referred to the same High Court Judge who, in
his capacity as an equality court Judge, is presiding
in that Court”
12.
The trial has been set down for
hearing on 28 January 2019. It is evident that the same factual
matrix will be covered in both that
case and the Equality Court case.
As stated earlier
Adv
Ferreira
for the
respondent did not pursue this ground, given that it had effectively
formed part of the agreed process.
CERTAIN
RELIEF MPERMISSIBLY USURPS ANOTHER FORUM’S POWERS
13.
The second broad issue is that
certain of the relief sought would amount to this court usurping the
functions and powers of the
CCMA and the Labour Court.
Adv
de Vos
for
the complainant submitted that the issue raised does not amount to a
special plea as it does not attack the jurisdiction to
hear the case,
only the form of relief that may competently be given.
[2]
14.
I do
not think that special pleas should be so narrowly construed, and
certainly not before the Equality Court if regard is had
to s 4(1)
(a) of the Equality Act’s guiding principles
[3]
.
It may well be that the nature of the relief sought clearly falls
outside the competency of the Equality Court because it amounts
to an
impermissible interference with the decision making function of
another forum. The fact that the respondent chose to
proceed on
this specific point by incorporating it into its special plea rather
than by way of an exception should not divert the
court’s
attention from attempting to ensure that the orders sought by the
complainant are competent.
15.
The issue is whether the complainant
is able to make out a case for the relief sought where it amounts, in
part, to this court directing
another forum of at least equal
competence to abdicate its decision making powers.
16.
However in identifying the issue in
this manner care must be taken not to curtail the wide remedial
powers which the Equality Court
enjoys. In such circumstances it
would be unnecessarily restrictive to uphold a broadly worded special
plea without hearing argument
on whether an Equality Court can
revisit a decision not to refer, with “
appropriate
comments”
,
proceedings instituted before it to an alternative forum.
In
this regard I accept that the Equality Act contemplates that the
presiding officer considers
ab
initio
a
referral of the matter to another forum, although it may again assume
jurisdiction in certain circumstances, provided of course
it does not
impact on any exclusive jurisdiction which the other forum may enjoy.
See s 20(3) (a) and (5) (b) as read with (7)
and (8). See also s
21(4) (b) which allows the Equality Court at a subsequent stage to
refer a case to an appropriate body for
mediation, conciliation or
negotiation
[4]
.
17.
I am satisfied, after weighing the
competing considerations mentioned earlier, that I would not be
unnecessarily fettering this
courts ultimate powers, while at the
same time giving clarity to both parties as to the limits of this
court’s jurisdictional
powers in relation to enforceable
orders, by making a finding that it is not competent for this court
either to direct the Labour
Court to exercise its jurisdiction in a
particular way, to direct it to make specific orders, to direct it or
the CCMA to adopt
a particular procedure, or to exercise in a
particular way any procedural or substantive law discretion that may
be conferred on
them.
18.
However it may well be that if this
court finds that the respondent’s conduct resulted either
in the complainant being
denied access to justice in respect of the
determination of any employment related claims or may form the basis
of a rescission
of the CCMA order of 13 December 2010 then those are
facts which should be brought to that forum’s attention;
leaving it
to that forum to determine if that is a ground, with such
other relevant factors, as would entitle the complainant to obtain a
rescission.
19.
The net effect is that;
a.
the complainant must make suitable
amendments to paras 2.4.1 and 2.4.2 of the relief sought.
b.
the complainant is not precluded at
this stage from seeking the order in the form set out in para 2.5
albeit that on closer scrutiny
it might be cast overbroadly. That can
be determined in a more informed manner at the end of the case should
the complainant succeed
in establishing the infringement of a right
of access to justice under the Equality Act.
EXCLUSION
OF JURISDICTION UNDER s 5(3) OF THE EQUALITY ACT
20.
The substantive issue raised by the
respondent is whether this court is precluded from adjudicating on
the matter because the allegations
relate to unfair discrimination
and harassment by the respondent against the complainant
qua
employee.
The
issue turns on a reading of s 5 (3) of the Equity Act and its
interpretation.
21.
The section contains three provisions
which address the application of the Equality Act. The first
sub-section confirms that the
legislation binds the State and all
persons. Sub-sections (2) and (3) read:
Application of Act
(1) …..
(2) If any conflict
relating to a matter dealt with in this Act arises between this Act
and the provisions of any other law, other
than the Constitution or
an Act of Parliament expressly amending this Act, the provisions of
this Act must prevail.
(3) This Act does not
apply to any person to whom and to the extent to which
the Employment Equity Act, 1998 (Act
55 of 1998), applies.
22.
It is evident that in the hierarchy
of remedial legislation dealing with issues of equality the Equality
Act trumps all others save
for the Constitution and, as circumscribed
in sub-section (3), the Equity Act.
23.
The Equity Act is a subsequent
enactment and one would expect the drafter to have been conscious of
the congruity between the provisions
of the two Acts and to have
clarified the delineation between them, bearing in mind that both
pieces of legislation deal with discrimination
and harassment.
Unfortunately that is not so.
24.
I turn first to the fundamental rule
of interpretation which is to establish the intention of the
legislature. This however presupposes
that the drafters had a clear
intention in mind rather than create an unresolved mess for the
courts to muddle through: Interpretation
of legislation does not work
that way: it presupposes that the legislature had a clear intention,
but the language by which it
chose to express itself was inadequate.
It is only on the basis of such an assumption that the courts can
invoke techniques of
interpretation- otherwise legislation becomes
court made. The minority judgment of Cameron J (with whom Froneman
and Jafta JJ concurred)
in
National
Credit Regulator v Opperman and Others
2013
(2) SA 1
(CC) which considered
s89
(5) of the
National Credit Act 34
of 2005
alludes to this
situation.
In
Opperman
Cameron J said: at paras 99 and 105
“
Interpretation
is a cooperative venture between legislator and judge, bounded by
mutually understood rules, in which the latter
seeks to give meaning
to the text enacted by the former. The mutual suppositions, and
the constraints of principle and constitutional
precept on the
judge’s role, enable the joint process to reach a coherent and
practical outcome. For this, it has to be assumed
that the
legislator’s enacted text includes only words that matter. For
to enact words that do not would violate the
most basic supposition
of the shared enterprise. Hence none can be ignored” (
at
para 99)
“
This case, in
my respectful view, signals the limits of cooperative effort in
giving meaning to ill-chosen words. To virtually ignore
the wording
of the provision, and then find it constitutionally bad, seems to me
an unnecessary dissonance. Put differently, once
the words, taken as
a whole, preclude a constitutionally compliant interpretation, the
conclusion beckons that no constitutionally
rational meaning can be
given to the provision. The result may be that the provision is
constitutionally void for vagueness. But
even if constitutionally
impermissible vagueness is not the result, then it seems there is
little constitutional purpose in examining
alternative meanings that
will result in unconstitutionality or depriving the provision of the
purpose for which it seems to have
been enacted. There is then no
particular constitutional imperative to squeeze a meaning from the
provision. Rather, we must accept
the words of the provision for what
they say, even at the cost of accepting that the provision is
ineffectual. It is better, in
my view, to acknowledge the drafting
error, and to leave Parliament to correct it.
(para 105)
25.
I must however assume that the
legislature had in mind a clear delineation between matters which
fall within the provisions of the
Equality Act requiring the skill of
a judicial officer but which, because it has an impact on labour
relations, is best dealt with
by a CCMA commissioner or a Labour
Court judge who has a fuller appreciation of the balance that needs
to be struck in this sphere.
26.
The intention of the Legislature is established by
having regard to the words used in their setting, by having regard to
the context
in which the words are used in the legislation as a whole
and the purpose for which the words are intended, with due regard to
the values of the Constitution. (
Jaga v Donges
NO and Another; Bhana v Donges NO and Another
1950
(4) SA 653
(A) at 662G-663A and
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para 90
per
Ncgobo J (at
that time);
27.
Wallis JA explained the process of applying these
principles in two leading cases. In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA)
at
para 18.
the judge said :
‘
Whatever the
nature of the document, consideration must be given to the language
used in the light of the ordinary rules of grammar
and syntax; the
context in which the provision appears; the apparent purpose to which
it is directed and the material known to
those responsible for its
production. Where more than one meaning is possible each possibility
must be weighed in the light of
all these factors. The process is
objective, not subjective. A sensible meaning is to be preferred to
one that leads to insensible
or unbusinesslike results or undermines
the apparent purpose of the document. …. The inevitable point
of departure is the
language of the provision itself, read in context
and having regard to the purpose of the provision and the background
to the preparation
and production of the document.’
Subsequently
in
Bothma-Batho Transport (Edms) Bpk v S
Bothma & Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA) Wallis JA reinforced the development of our
law, away from the so
called “
golden rule
”
of
interpretation by explained that the process of interpretation is
unitary and no longer circumscribes the permissible background
considerations that may be taken into account. The judge said at para
12:
“
The former
distinction between permissible background and surrounding
circumstances, never very clear, has fallen away. Interpretation
is
no longer a process that occurs in stages but is ‘essentially
one unitary exercise’. “
In
Kubyana
v Standard Bank of South Africa Ltd
2014
(3) SA 56
(CC) at para 18 Mhlantla AJ also referred to a holistic
approach to interpretation.
[5]
28.
I will start with the basic aid to
interpretation that every word in a statute is intended to be given a
meaning. Subsection 5(3)
reads that the Equality Act “
does
not apply to any person to whom and to the extent to which the
Employment Equity Act, 1998
applies”
.
Meaning must therefore be given to the words “
and
to the extent to which”
the
Equity Act applies.
Does
this mean that if the relief sought by the complainant is not
cognisable under the Equity Act then the complainant is free
to
proceed before the Equality Court? Or does it mean, as contended for
by Adv Ferreira, that only the cause of action need fall
within the
scope of the Equity Act for this court’s jurisdiction to be
excluded. There are persuasive arguments to be made
both ways.
Firstly a party can avoid the Equity Court by simply formulating the
relief in a way which falls outside the competency
of the orders
available under that court’s jurisdiction. On the other hand
the nature of the relief under the Equality Court’s
jurisdiction is intended to directly impact on the
mores
of a
sector of the community or of the community at large in order to
achieve a more tolerant and constitutionally value orientated
society.
29.
In
Strydom
v Chiloane [
2007]
JOL 20879
(T), Hartzenberg J resolved the issue on the basis
that the relief claimed was outside the powers of the Equity Act,
although
the illustration given could equally apply to the cause of
action being the distinguishing feature (at para 12). Moreover
the full bench considered that the
a
fortiori
question
was one of jurisdiction and that by reason of s 49 of the Equity Act
only the Labour Court could decide the issue.
[6]
30.
In many cases the true deciding
factor is to establish the purpose of the legislation concerned.
Ordinarily that is confined to
scrutinising the Act in question. In
the present case it involves comparing the scope and purpose of the
respective Acts. Fortunately
each piece of legislation sets out its
objectives in its preamble and objects provisions.
31.
Section 3(1) (b) of the Equality Act
expressly provides that its provisions are to be interpreted in a
manner which gives effect
to the Preamble and to the objects and
guiding principles as set out in ss 2 and 4.
32.
Without making this judgment unduly
prolix suffice it for present purposes that aside for giving effect
to the equality provisions
of s 9 read with item 23(1) of the
Constitution the purpose of the Act, as expressed in the Preamble, is
to promote equality and
eliminate unfair discrimination and
harassment by eradicating social and economic inequalities which
remain “
deeply
embedded in social structures
,
practices and attitudes, undermining the aspirations of our
constitutional democracy
”
(emphasis
added). Perhaps of equal significance is that in terms of the
Preamble the purpose of the Equality Act is to “
facilitate
the transition to a democratic society… marked by human
relations that are caring and compassionate….”
33.
Under
the objects provisions the Equality Act seeks to promote equality and
the values of non-racialism and non-sexism, prevent
unfair
discrimination and protect human dignity
[7]
by:
a.
providing
“
for
measures to facilitate the eradication of unfair discrimination …
particularly on the grounds of race, gender and disability”
;
[8]
b.
providing
“
for
measures to educate the public and raise public awareness on the
importance of promoting equality and overcoming unfair
discrimination,
hate speech and harassment
”
;
[9]
c.
setting
out “
measures
to advance persons disadvantaged by unfair discrimination”
[10]
d.
facilitating “
further
compliance with international law obligations including treaty
obligations in terms of, amongst others, the Convention on
the
Elimination of All Forms of Racial Discrimination and the Convention
on the Elimination of All Forms of Discrimination against
Women”.
34.
Among the guiding principles
enunciated in s 4 of the Equality Act are those of;
a.
“
the
use of corrective or restorative measures in conjunction with
measures of a deterrent nature”
[11]
b.
“
the
development of special skills and capacity for persons applying this
Act in order to ensure effective implementation and administration
thereof”
[12]
c.
recognising
and taking into account when applying its provisions the “
existence
of systemic discrimination and inequalities, particularly in respect
of race, gender and disability
in
all spheres of life
as
a result of past and present unfair discrimination, brought about by
colonialism, the apartheid system and patriarchy
”
[13]
and
also “
the
need to take measures at all levels to eliminate such discrimination
and inequalities.”
[14]
(emphasis
added)
35.
The powers of the Equality Court are
also instructive. As one would expect having regard to the Acts
remedial and corrective objectives
the court can:
a.
Order
for the implementation of special measures to address the unfair
discrimination, hate speech or harassment;
[15]
b.
Issue
orders of a deterrent nature;
[16]
c.
Require
the matter to be submitted to the Director of Public
Prosecutions;
[17]
d.
Refer
its concerns to any relevant constitutional institution for further
investigation or to refer the proceedings before it to
such an
institution or “
appropriate
body for mediation, conciliation or negotiation”
[18]
36.
Having identified the objects and
purpose of the Equality Act it is possible to decide whether s 5(3)
requires only that the cause
of action must be justiciable under the
Equity Act to exclude this court’s jurisdiction or whether in
addition the manner
of dealing with the issue, in the form of the
orders that the Equality Court is called on to make or pronounce
upon, must also
be available under the Equity Act.
Firstly
it can be safely concluded that the impact or reach of the Equality
Act was not intended to be curtailed by other legislation-
other
legislation would have to compliment, not detract from it.
Therefore at best the Equity Act would have to achieve
the same
objectives as the Equality Act without watering down its reach where
the cause of complaint was based on the same grounds.
In terms of the
Preamble the reach of the Equality Act is to eradicate unfair social
and economic discrimination and inequality
by facilitating the
transition to a democratic society “
marked by human
relations that are caring and compassionate….”
Secondly
the Equality Act is outcome based. Accordingly the type of
measures it can impose in order to achieve its objective
becomes an
integral element of the enactment. This appears from the guiding
principles contained in s 4 which were cited earlier
and which
envisage “
the
use of corrective or restorative measures in conjunction with
measures of a deterrent nature”
[19]
and
“
the
need to take measures at all levels to eliminate such discrimination
and inequalities.”
[20]
37.
In
short the Equality Act is directed at facilitating equality within
the broader social structures consonant with the values of
our
Constitution. Consequently, it would defeat a core objective of that
Act if one had regard only to the grounds of complaint
and not the
remedial action which the Equality Court is empowered to implement
proactively and through structural orders
[21]
that address the imbalances within the broader society, including its
institutions.
38.
I am therefore of the view that the
purpose of the Equality Act would be defeated if the CCMA or Labour
Court was unable to effectively
provide remedial action, and
therefore deal with the issue, to the same extent as the Equity Act
even if the factual grounds relied
on fell within the scope of the
Equity Act.
39.
I now
turn to a consideration of the framework of the Equity Act. The Act
provides that it must be interpreted in a manner which
gives effect
to its purpose, taking into account any relevant code of good
practice issued in terms of the Act or any other employment
law and
in compliance with the country’s international law obligations;
and in particular under the International Labour
Organisation
Convention concerning Discrimination in Respect of Employment and
Occupation.
[22]
40.
In terms of s 2 the purpose of the
Equity Act is to achieve equity in the workplace by;
a.
promoting equal opportunity and fair
treatment “
in
employment through the elimination of unfair discrimination”
;
b.
implementing
affirmative
action measures to redress disadvantages in employment experienced by
designated groups, in order to ensure their equitable
representation
in all occupational categories and levels in the workplace”
It
is evident that the Equity Act is directed at eliminating unfair
discrimination in the workplace.
41.
The phrase “
elimination
of unfair discrimination”
is
given content in s 5 of the Equity Act, which provides that:
“
Every
employer must take steps to promote equal opportunity in the
workplace by eliminating unfair discrimination in any
employment
policy or practice
”
(emphasis
added)
42.
The
structure of the Equity Act prohibits “
unfair
discrimination”
and
“
harassment”
(which
is defined as a species of the former)
[23]
.
In turn “
unfair
discrimination”
is
circumscribed by s 6 which requires the following preconditions
to be satisfied before the Act can apply;
a.
There must be “
unfair
discrimination”
,
which itself is broadly defined by way of numerous illustrations;:
b.
The “
unfair
discrimination”
must
arise directly or indirectly from an “
employment
policy or practice”
;
An
“
employment policy or practice”
is defined to
include “
but is not limited to”
the thirteen
categories mentioned. These may be classified as procedures,
criteria, assessments, grading, and processes. They
are
intended to be illustrative.
43.
Accordingly a
sine
qua non
for the
application of the Equity Act is that unfair discrimination must
arise from an employment policy or practice.
By
definition a “
policy
or practice”
in
its context envisages both a set of principles or standards that
govern the employment relationship and a habitual or regular
course
of doing things even though they may be inconsistent with the avowed
policy of what is meant or believed to happen.
[24]
In
this regard reference may be had to the
Concise Oxford Dictionary
(10
th
ed) which defines:
“
policy”
to
include “
a
course or principle of action adopted or proposed by an organization
or individual”;
and
“
practice”
to
mean as a noun “
the
actual application or use of a plan or method as opposed to the
theories relating to it; the customary or expected procedure
or way
of doing something”
while
as a verb “
practise”
is
to “
perform
(an activity) or exercise (a skill) repeatedly or regularly….;
carry out or perform (an activity or custom) habitually
or regularly”
Such
an interpretation is consistent with the mischief which the Equity
Act seeks to address as set out in s 5 of the Equity Act;
otherwise
the insertion of the phrase as a qualification to the words which
precede it would be meaningless.
44.
Another
sine
qua non
is that the
unfair discrimination is against an employee. An employee is defined
in s 1 to mean:
“
any
person other than an independent contractor who-
(a)
Works for another person or for
the State
45.
In terms of s 3 the Equity Act is to
be interpreted by taking into account any relevant code of good
practice issued in terms of
the Act or any other employment law.
Moreover where the case is initiated by the employee the process
envisages relief in the form
of an order by the Labour Court directed
at either compensating the employee or requiring compliance by the
employer.
46.
It
will be apparent that the points of departure between the Equality
Act and the Equity Act are fourfold; firstly the Equity Act
is
limited to cases of an employment relationship, secondly the
unfair discrimination must arise from an “
employment
policy or practice
”
which
contemplates conduct that is adopted or regularly or habitually
implemented by the employer; thirdly the relief is limited
to orders
affecting the employer whose employment policy or practice is
unfairly discriminatory towards the employee in question
or its other
employees whereas the Equity Act seeks to actually engage head on
acts of harassment and discrimination within society
at large.
Finally and not necessarily definitive in its own right, the Equality
Act is essentially concerned with redressing rights
issues which
potentially impact on a large sector of society whereas under the
Equity Act the starting point in disputes brought
by an employee is
an obligatory attempt at conciliation
[25]
failing which an ultimate outcome confined to a change in the policy
and practice of the specific employer within the workplace.
[26]
47.
The Equity Act requires that in
interpreting its provisions regard must also be had to the Code of
Good Practice on the Handling
of Sexual Harassment Cases in the
Workplace published on 4 August 2005 in Government Gazette no 27865.
In the footnotes to paras
2.1 and 2.3 which deals with the
application of the code it is noted that :
“
Where
sexual harassment occurs outside of the working environment regard
should be had to the “Equality
Act.
Leaving
aside questions of whether subordinate legislation can inform the
interpretation of a statute and if so , when and to what
extent,
meaning must be given to the phrase “
working environment”
bearing in mind that the context remains the employment policy or
practice adopted by the employer. This appears to be reinforced
by
the provisions of other paragraphs of the Code, such as para 6.
48.
In the present case the complainant
claims that she is the victim of gender based discrimination or
violence and of harassment which
inter
alia
also affects
her right to equality in respect of her constitutional entitlement of
access to justice.
The
complainant alleges that on the night of 18 July 2008 or the early
hours of the following morning a certain … G…
had
spiked a drink he gave her and had sexual intercourse without her
consent. She claims that he had instructed her to come to
his home
after work to collect work related material. At the time the
respondent employed her as a senior manager-finance and he
was its
Chief Financial Officer.
49.
After the complainant reported the
alleged rape to both the police and to the respondent she alleges a
course of conduct on the
part of the latter to “
protect
the image of the company
”
in
a number of ways which included the alleged suppression of her
complaint and interference with the police investigation despite
her
requesting the respondent to act proactively to bring G… to
account. She contends the respondent’s conduct
denied her
equal protection and access to justice.
50.
I proceed to quote the grounds on
which the complainant contends that as a consequence of the
respondent’s actions and omissions
to protect itself she is a
victim of unfair gender discrimination or gender based violence
212. As a victim of
harassment, unfair gender discrimination and/ or gender-based
violence, Ms S… is part of the marginalised
and vulnerable
group in society that is disadvantaged by harassment as well as
unfair discrimination on the basis of gender.
213. The matter before
the above honourable court is important in that it highlights the
secondary victimisation and stigmatisation
faced by female victims of
harassment, unfair gender discrimination and or gender based violence
in society, based on certain vulnerabilities,
stigmas and imbalances
of power and financial resources when pitted against large corporate
entities.
214. Neotel’s
conduct is evident of the obstacles faced by many victims of
harassment, unfair gender discrimination and or
gender based violence
and is short of the standard set out in section 9(1) and 9 (2) and
section 10 of the South African Constitution,
as given effect in the
Equality Act.
215. Actively
precluding Ms S… from voicing her experience violates
her right to access to justice as well as her right
to dignity in
that it constitutes a failure to acknowledge her dignity and
integrity as well as her equal recognition and worth.
It further
constitutes indirect harassment by Neotel.
216. As a result of
Neotel’s conduct, there has been;
216.1 no proper
investigation by Neotel of the charge of rape against Mr G… ;
216.2 no
consideration, alternatively no proper consideration, of the
available evidence by Neotel in support of the charge;
216.3 no consideration
or determination by Neotel in any forum of the truth of the
allegation against Mr G… ; and
216.4 no justice for
Ms S… as a victim of gender-based violence.
217. The denial of
justice for Ms S… as a victim of harassment, unfair
gender discrimination and or gender based violence
in itself amounts
to the violation of her right:
217.1 to equality as
contemplated in section 8 (a), (e) and (h) of the Equality Act; and
217.2 not to be
subjected to harassment as contemplated in section 11 of the Equality
Act.
218. In addition, it
amounts to a victimisation of Ms S… .
219. Neotel’s
conduct has resulted in a violation of Ms S…’s right of
equal protection and benefit of the law,
the right not to be
discriminated against because of her gender, including the right not
to be discriminated against because of
her gender, including the
right to be free of harassment, and has violated her dignity and
right to justice. This violation has
resulted in damages suffered by
her to be quantified before the Equality Court.
51.
While the relief sought by the
complainant may in part coincide with that available under the Equity
Act it is far broader. The
complainant asks not only for damages but
also the following orders:
2.2 To the extent that
the court finds that there had been no proper investigation of the
charge against Mr G…, a referral
to the South African Police
Service to investigate case 565/2008 and an order to report back on
progress in the investigation in
terms of the section 21 (2)(m) of
the Equality Act.
2.3 A referral to the
Director of Public Prosecutions in terms of section 21 (2)(n) of the
Equality Act to consider the evidence
in case 565/09/2008 along with
the evidence presented in this case, to make a decision regarding the
prosecution of:
2.3.1 Mr G… ;
2.3.2 Any other
individuals who may be implicated in the commission of a crime;
2.3.3 And an order to
report back on its decision in terms of section 21 (2) (m) of the
Equality Act.
To
this extent the Equity Act does not provide for relief to the same
extent as claimed by the complainant under the Equality Act.
52.
In my view, while the complainant
believed that she was at G…’s home because of a work
related issue, it may be stretching
the point to impermissible bounds
where the other party had no intention of dealing with a work related
matter but used it as a
pretext to deceive the victim as to his true
intention. Nonetheless there may also be situations where a director
takes an employee
on a business related trip but uses the opportunity
to sexually molest her and a finding that there must be a common work
related
intention may result in the net being cast too narrowly. The
issue as to the meaning to be given to the term “
outside
the working environment “in
paras
2.1 and 2.3 of the Code was not fleshed out fully before me and it is
unnecessary to decide the point in cases where the harassment
occurs
outside the office, as there are more compelling grounds for finding
that the Equity Act has no application.
53.
The
respondent has brought the defence of jurisdiction by way of a
special plea which relies on a legal submission as to the exclusion
of this court’s jurisdiction by virtue of s 5(3) of the
Equality Act. It does not assert any facts outside the case made
by
the complainant
[27]
. Neither
the applicant nor the respondent has pleaded facts to indicate that
the complaint of harassment arises from an “
employment
policy or practice
”
in
the sense that I believe it is to be defined.
That
being so the precondition for the application of the Equity Act to
the exclusion of the Equality Act falls away. Accordingly
it is
unnecessary to consider whether s 49 of the Equity Act requires that
any interpretation, or application, of the Equity Act
is only
cognisable by the Labour Court. On the facts before there is no
allegation contained in the papers to support a contention
that the
conduct complained of was an employment policy or amounts to a
practice adopted by the respondent in the manner contemplated
by the
Equity Act, nor can it be inferred.
54.
If I am wrong then it is necessary to
first consider whether s 49 of the Equity Act precludes this court
from interpreting s 5 of
the Equality Act because, in doing so, it is
also necessary to consider the reach of the Equity Act. The
view of the Equality
Court in
Strydom
at para 17 was that
it must defer this interpretational issue to the Labour Court.
55.
However it appears that the court
assumed that s 49 must apply as no countervailing argument appears to
have been presented nor
were certain anomalies considered. For
instance; if the Labour Court exercised jurisdiction then just as I
have done, it would
have to interpret the objects and purpose of the
Equality Act. However implicit in the terms of s 4(1)(e) of its
provisions read
with the interpretational aids to that subsection
(i.e. s 3(1) (b)) and s 5(3)) , is that a consideration of the
Equality Act should
be the sole preserve of an Equality Court
judge “
in
order to ensure the effective implementation and administration
thereof”.
Moreover
the principal provision requiring interpretation is not found in the
Equity Act, but is s 5 of the Equality Act.
At
worst there a legislative impasse created on the one hand by s 4(1)
(e) read with ss 3(1) (b)) and 5(3) of the Equality Act and
on the
other by s 49 of the Equity Act.
56.
Without legislative intervention a
court is left with two primary considerations. Section 49 of the
Equity Act is of general application
to all courts which, on ordinary
aids to interpretation, ought to yield to a provision of specific
application to the Equality
Court even if it was enacted earlier.
The
other consideration is that the intention and purpose of the Equality
Act would be defeated if the Labour Court was to first
consider an
interpretational issue in relation to the Equality Court’s
jurisdiction since another guiding principle
applicable to the
Equality Act (see s4(1)(a)) is the expeditious processing of cases:
Invoking s 49 of the Equity Act would require
this court to first
await the outcome of a decision by the Labour Court on the
interpretation issue, with a possible appeal to
the Constitutional
Court.
There
would also be cost implications for a complainant who is obliged to
approach another court first. This may stifle the ability
to access
justice. On a practical level the legislature may wish to consider
expressly giving concurrent jurisdiction to the Equality
Court and
the Labour Court on issues concerning the interpretation of s 5(3) of
the Equality Act.
57.
In the present case I have found that
the additional words in s 49 which exclude the need to refer an issue
of interpretation to
the Labour Court where “
the
Act provides otherwise”
covers
the situation where a material jurisdictional fact is absent: namely
that the conduct complained of did not arise from an
employment
“
policy or
practice”
.
58.
On the basis that this court has
jurisdiction, it is evident that the case made out by the complainant
is not concerned with work
place policies or practices in relation
to, or as between, employees.
59.
The complainant alleges unfair gender
discrimination and harassment through the abuse of corporate power
which resulted in
inter
alia
depriving her
of her constitutional right of equal access to justice.
This
is not a matter justiciable under the Equity Act Court because the
conduct complained of extended beyond the work environment
and
engaged State institutions and the relief sought is also directed at
redressing that infraction. The matter is also not justiciable
under
that Act because the conduct of the respondent which is alleged to
have extended beyond the workplace, if true, reveals that
it would
have acted in similar vein whether or not the complainant to sexual
harassment was its employee or an ordinary member
of the public.
This
case has to do with the conduct of a company attempting to avoid
reputational damage and which is directed at protecting shareholder
value and brand image. The formulation of the complaint is consistent
with that.
60.
The final aspect of the special plea
as to jurisdiction may appear to be concerned with
res
judicata.
As I
understood it, the point is not that the CCMA has finally determined
a matter which is presently before this court: As I have
found it
would be debarred from doing so by s 5(3) of the Equality Act as the
matter would fall outside its jurisdiction. The point
was taken
rather as an additional ground upon which this court was not able to
refer the matter to the CCMA or give it directions.
The point
therefore properly falls within the second broad issue. Moreover
there is a dispute as to whether the CCMA made a finding
on the
merits and furthermore I have already accepted that this court cannot
give directions to that forum; at best the case can
be referred to
it.
61.
Accordingly the conduct complained of
is unrelated to an employment policy or practice of a company in
respect of its employee,
irrespective of whether the term “
policy
or practice”
is
to be generously interpreted.
COSTS
62.
In the result the respondent has only
achieved negligible success and has failed on its substantive
argument. The issues justified
the engagement of two counsel.
ORDER
63.
I accordingly make the following
order:
a.
The first special plea as to
jurisdiction is dismissed save to the extent that paras 2.4.1 and
2.4.2 of the prayers must be amended
to remove any reference this
court directing the Labour Court to act in a particular way or
directing that an application for rescission
of the CCMA order of 13
December 2010 be filed. The complainant is afforded 20 days to
affect the necessary amendments.
b.
The respondent is to pay the
complainant’s costs on the opposed scale including the costs of
two counsel.
_________________
SPILG J
DATE OF HEARING: 19 June
2018
DATE OF JUDGMENT: 31 July
2018
REVISED: 8 August 2018
FOR COMPLAINANT: Adv A de
Vos SC
Adv N Luthuli
(Adv N Fourie had
appeared at initial prehearing meetings)
Webber Wentzel
FOR RESPONDENT: Adv N
Ferreira
I Cloete (pupil)
Cliffe Dekker Hofmeyr Inc
[1]
See
Chapter
3 of the Equality Act which deals with burden of proof, presumptions
and their exceptions
[2]
Technically
a special plea ought to add new facts but it is generally of no
concern to the other party if the defence is raised
either by way of
exception or as a special plea. See Harms
Amler's
Precedents of Pleadings
(8
th
ed)
at 304-5 and the case cited of
Sanan
v Eskom Holdings Ltd
2010
(6) SA 638 (GSJ)
[3]
Section 4 (1): In the adjudication of
any proceedings which are instituted in terms of or under this
Act, the following
principles should apply:
(a)
The expeditious and informal processing of cases, which facilitate
participation by the parties to the proceedings;
[4]
Sections
20()3(a),(5), (7) and (8) provide
:
(3) (a) The clerk of the equality
court must, within the prescribed period of receiving such
notification, refer the matter to
a presiding officer of the
equality court in question, who must, within the prescribed period,
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.
(5) (a) If the presiding officer
decides that the matter must be referred to an alternative forum he
or she must, in the prescribed
manner, make an order, directing the
clerk of the equality court to transfer the matter to the
alternative forum mentioned in
the order.
(b) When making an order
contemplated in paragraph (a), the presiding officer may attach to
the order any comments he or she deems
necessary for the attention
of the alternative forum.
(7) On receipt of a matter
transferred to it, the alternative forum in question must deal with
the matter expeditiously in terms
of its powers and functions.
(8) If the alternative forum
referred to in subsection (7)-
(a) fails to deal with the matter
within a reasonable period in the circumstances; or
(b) is not able to resolve the
matter to the satisfaction of one or both the parties and one or
both parties so request,
the alternative forum must, in the
prescribed manner, refer the matter back to the equality court from
which it was transferred,
for adjudication, within the prescribed
period from the date on which it was returned to the equality court.
S21(4)(b) provides that-
(4) The court may, during or after
an inquiry, refer-
(a) …
(b) any proceedings before it to
any relevant constitutional institution or appropriate body for
mediation, conciliation or negotiation.
At para 18: “
Furthermore,
legislation must be understood holistically and, it goes without
saying, interpreted within the relevant framework
of constitutional
rights and norms.”
[6]
Section
49 of the Equity Act reads:
“
The Labour Court has
exclusive jurisdiction to determine any dispute about the
interpretation or application of this Act except
where this Act
provides otherwise”
[7]
Section
2(b)
[8]
Section
2(c)
[9]
Section
2(e)
[10]
Section
2(g)
[11]
Section
4(d)
[12]
Section
4(e)
[13]
Section
4(2)(a)
[14]
Section
4(2)(b)
[15]
Section
21(2)(h)
[16]
Section
21(2)(l)
[17]
Section
21(2)(n)
[18]
Section
21(4)(a) and (b)
[19]
Section
4(d)
[20]
Section
4(2)(b)
[21]
Also
referred to as supervisory orders. See s
21(2)(m)
[22]
Section
3
[23]
See
s 6
[24]
See
Oxford English Dictionary
[25]
This
may create its own tensions where there is no intervention by the
Director-General as the commissioner is obliged to attempt
resolution through conciliation (see s 10(5) of the Equity Act). The
obligatory process of conciliation may itself play
out to the
advantage of an employer who has displayed conduct amounting to
overreaching or preying on the vulnerability of the
employee on what
is fundamentally a rights issue that the Equality Act would require
be determined and proactively redressed.
[26]
See
ss 10 and 50 and especially s 50(2).
[27]
See
the respondent’s First Special Plea