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[2019] ZAEQC 7
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Rarayi and Others v Oak Valley Estates and Others (EC13/2019) [2019] ZAEQC 7 (22 November 2019)
THE
EQUALITY COURT
(SITTING
IN CAPE TOWN)
Case
No: EC 13/2019
In
the matter between
SIBONGILE
RARAYI & 41 OTHERS
1
st
-42
nd
APPLICANT
TRUST
FOR COMMUNITY OUTREACH AND EDUCATION
43
rd
APPLICANT
and
OAK
VALLEY ESTATES (PTY) LTD
1
st
RESPONDENT
OAK
VALLEY PROPERTY HOLDINGS (PTY) LTD
2
nd
RESPONDENT
BOLAND
LABOUR (PTY) LTD
3
rd
RESPONDENT
TWO-A-DAY
GROUP (PTY) LTD
4
th
RESPONDENT
TRU-CAPE
FRUIT MARKETING (PTY) LTD
5
th
RESPONDENT
COMMERCIAL,
STEVEDORING, AGRICULTURE AND ALLIED WORKERS UNION
6
th
RESPONDENT
DEPARTMENT
OF HUMAN SETTLEMENTS, WESTERN CAPE PROVINCE GOVERNMENT
7
th
RESPONDENT
THEEWATERSKLOOF
MUNICIPALITY
8
th
RESPONDENT
Coram:
Rogers J
Heard
:
7 November 2019
Delivered:
22 November 2019
JUDGMENT
(JURISDICTION)
Rogers
J:
[1]
This judgment deals with
an objection to the jurisdiction of the Equality Court to conduct an
enquiry in terms of s 21 of the Promotion
of Equality and Prevention
of Unfair Discrimination Act 4 of 2000 (‘the Equality Act’).
Although the objection may
seem to be a technical matter, it is of
the utmost importance to resolve it. On the merits the case raises
important issues. There
are wide-ranging factual and legal disputes A
determination of the merits will call for oral evidence and entail
proceedings which,
even having regard to the less formal processes of
the Equality Court, may run for some weeks. It would be disastrous to
have a
lengthy hearing followed by a decision on the merits, only to
have the outcome nullified on appeal because this court lacked
jurisdiction.
[2]
The first 42 applicants
are persons who have historically worked on the fruit farm Oak Valley
in Elgin. I shall refer to them collectively
as the applicants. The
43
rd
applicant is the Trust for Community Outreach & Education (‘the
Trust’), a non-profit organisation and trust which
supports the
applicants’ complaints and has provided supplementary evidence.
[3]
The first and second
respondents, Oak Valley Estates (Pty) Ltd and Oak Valley Property
Holdings (Pty) Ltd, to whom I shall refer
collectively as OV, are
respectively the employer of the permanent workers on the farm and
the owner of the farm. The third respondent,
Boland Labour (‘BL’),
is the employer or ‘paymaster’ of seasonal farmworkers on
the farm. The fourth and
fifth applicants are Two-a-Day Group (Pty)
Ltd (‘TAD’) and Tru-Cape Fruit Marketing (Pty) Ltd
(‘TCF’).
TAD, which was formerly an agricultural
cooperative, is a private company owned by fruit farming interests
while TCF is its sales
and marketing arm. OV is a shareholder of, and
an important contributor to, TAD and TCF. Where I refer to the
respondents collectively,
it is a reference to these five parties.
[4]
The sixth respondent is
the Commercial Stevedoring Agricultural and Allied Workers Union
(‘the Union’) which, though
cited as a respondent, makes
common cause with the applicants and has filed lengthy papers.
[5]
After the institution of
proceedings, OV caused the seventh and eighth respondents to be
joined. They are respectively the Department
of Human Settlements,
Western Cape Provincial Government (‘DHS’), and the
Theewaterskloof Municipality (‘TKM’).
[6]
The jurisdictional
challenge is raised by OV and the DHS. It must be answered on the
assumption that the facts stated in the applicants’
founding
papers are true, even though many of those facts are disputed by the
respondents (
Lewarne
v Fochem International
(Pty)
Ltd
[2019] ZASCA 114
;
(2019) 40
ILJ
2473
(SCA) para 7). The facts which follow are thus those alleged by the
applicants.
[7]
The applicants say that
they are still employed by OV. Although only 11 of them are
recognised by OV as permanent employees, they
are all in substance
permanent employees, having worked continuously for OV for some
years, a number of them for more than ten
years.
[8]
They are African men from
Qumbu. For many years OV, in common with other fruit farmers in the
Western Cape, has used migrant labour
from the Eastern Cape. In OV’s
case, its migrant labour has been drawn from the Qumbu community. The
migrant workers from
Qumbu have always been accommodated in
single-sex hostels on Oak Valley. The hostel they currently occupy
(‘the EC hostel’)
was built in 1988. The longest-standing
of the applicants began working for OV in 1993, the most recent in
2017.
[9]
In their Form 2 notice,
being the prescribed notice of institution of proceedings in terms of
s 20 of the Equality Act, the applicants
state that particulars of
their complaint are set out in the accompanying affidavits. The
relief they seek, as set out in the notice,
is, in the first
instance, that this court (ie the Equality Court) order an enquiry to
be held in terms of s 21(1) into the applicants’
causes of
action under the Equality Act before a consideration of their claims
for consequential relief.
[10]
The consequential relief
they claim is (a) a declaration that OV and BL’s failure
‘to create and implement a scheme
for accommodation and housing
which allows their employees to be afforded adequate, humane and
decent living conditions for their
African employees and their
families’ is unlawful; (b) a declaration that OV and BL
must, until such order is revoked,
provide adequate, humane and
decent living conditions to all employees accommodated on the farm
and their families; (c) that
OV and BL may apply to the Equality
Court for these orders to be revoked once they have created and
implemented a scheme of the
kind contemplated in (b).
[11]
In the alternative to
claim (b) above, the applicants claim such relief as the court deems
appropriate with a view to (i) redressing
the said failure; and
(ii) protecting the constitutional rights of the applicants and
their families to adequate, humane and
decent living conditions.
Ancillary alternative relief in support of these alternative claims
are: that the respondents be required
to undergo an audit of their
housing and accommodation policies and practices; that the court
recommend to Sustainability Initiative
South Africa (‘SIZA’)
that it suspend its certification of the respondents as compliant
with the SIZA Social Standard;
and that the respondents be directed
to make regular progress reports to the court, to the South African
Human Rights Commission
(‘SAHRC’) and to the Commission
for Gender Equality (‘CGE’) regarding the implementation
of their policies
and practices for adequate, humane and decent
housing.
[12]
The founding papers are
somewhat diffuse and it is not easy to discern the precise causes of
action. In paras 114-119 of his affidavit,
the first applicant refers
to ss 7-10, 12, 14, 25-28 and 32 of the Constitution, to article
11(1) of the 1996 International
Covenant on Economic, Social and
Cultural Rights, to article 18 of the African Charter of Human and
Peoples’ Rights, to the
Equality Act and to the Employment
Equity Act 55 of 1998 (‘the Employment Act’). In paras
104.13-104.14 there is a
passing reference to the Extension of
Security of Tenure Act 62 of 1997 (‘ESTA’), something
expanded upon in paras
108-115 of the supporting affidavit by Ms
Mercia Andrews, a researcher with the Trust.
[13]
Although the applicants
have many and varied complaints against the respondents, the relief
they seek concerns only their accommodation
on the farm. They seek no
relief in this court in connection with their alleged dismissal or
with the distinction drawn between
permanent and seasonal workers or
with OV’s alleged failure to transform its workforce and
provide opportunities for promotion
of black workers, though there
are parallel proceedings in the Labour Court on some of these
matters. For present purposes, I proceed
on the assumption that the
applicants are, as they allege, currently all permanent employees of
OV.
[14]
Their allegations about
their accommodation can be stripped down to two essential complaints:
(a) that their accommodation
is inadequate even for single-sex occupation, because of the
smallness of the rooms and lack of
privacy, and is inadequate and
inhumane to them and their families because it effectively compels
the wives, partners and children
of the workers to live
geographically separate lives;
(b) that OV discriminates
against the African workers from Qumbu by limiting their
accommodation to a single-sex hostel while
providing family
accommodation, of superior quality, to white and coloured employees.
I
shall refer to these two essential complaints as the first and second
complaints.
[15]
Although the allegations
in support of these and other complaints are interwoven, one will
find the first complaint articulated
particularly in paras 44, 70.2,
74, 78, 91 and 117 of Mr Rarayi’s founding affidavit, in para
67 of Ms Andrews’ affidavit
and in paras 10-12, 16-18 and 32-36
of the affidavit of Mr Boyce Tom, also a researcher with the Trust.
The second complaint is
pertinently formulated in paras 23, 26, 57-58
and 66 of Mr Rarayi’s affidavit and in paras 62-67 of Ms
Andrews’ affidavit.
The founding affidavits of Mr Rarayi and Ms
Andrews also set out the history of the racial division of labour and
housing with
its roots in apartheid’s migrant labour system.
[16]
Sections 6 to 9 of the
Equality Act prohibit unfair discrimination in general and on
particular grounds. Sections 10 and 11 prohibit
hate speech and
harassment, while section 12 prohibits the dissemination and
publication of information that unfairly discriminates.
These
prohibitions apply to all persons, not only the State. The present
case does not allege hate speech, harassment or the dissemination
of
information that unfairly discriminates.
[17]
‘
Discrimination’
is defined in s 1 as meaning
‘
any act or
omission, including a policy, law, rule, practice, condition or
situation which directly or indirectly –
(
a
) imposes
burdens, obligations or disadvantage on; or
(
b
) withholds
benefits, opportunities or advantages from,
any person on one or
more of the prohibited grounds.
[18]
Various grounds of unfair
discrimination are listed in para (
a
)
of the definition of ‘prohibited grounds’. They include
race, gender, sex, and ethnic and social origin. In addition
to
specified grounds of this kind, para (
b
)
provides that a ground is a ‘prohibited ground’ where
discrimination on such ground
‘
(i) causes or
perpetuates systemic disadvantage;
(ii) undermines
human dignity; or
(iii) adversely
affects the equal enjoyment of a person’s rights and freedoms
in a serious manner that is comparable to discrimination
on the
ground in paragraph (
a
)’.
[19]
The applicants’
second complaint is that there is unfair discrimination between them,
as African workers from Qumbu, and white
and coloured workers in
regard to the character and quality of accommodation provided by OV.
If true, this is discrimination on
one or more prohibited grounds –
race and ethnic or social origin. Indirectly there may also be gender
discrimination, in
that the female partners of white and coloured
workers are able to reside with their partners whereas the partners
of African workers
are not. The second complaint thus qualifies as
‘unfair discrimination’. Subject to any relevant
statutory exclusion,
this is a matter falling within the jurisdiction
of the Equality Court.
[20]
The first complaint, on
the other hand, does not appear to me to be one of unfair
discrimination. The heart of the first complaint
is the alleged
inadequacy and inhumanity of accommodation in the EC hostel. If the
accommodation were adequate and humane but inferior
to that of white
and coloured employees on account of the applicants’ race, the
second complaint would be left standing but
not the first.
Conversely, it would be no answer to the first complaint to say that
all workers on the farm are accommodated in
equally inadequate and
inhumane hostels.
[21]
I am not called upon, at
this stage, to decide whether the first complaint gives rise to a
valid cause of action. One might argue,
against it, that a private
employer is under no duty to provide accommodation to members of the
public and need only provide accommodation
to employees if this is an
agreed benefit of employment. If the employer offers accommodation as
an employment benefit, and an
employee regards it as inadequate and
undignified, he or she is not bound to accept the offer. It may be
going quite far to say
that the employee is entitled to accept the
offer of inadequate accommodation and then assert that such
accommodation violates
his or her fundamental rights and that the
employer must thus provide materially superior and more extensive
accommodation.
[22]
However, for present
purposes I must assume that such a case could plausibly be advanced,
the question being whether it would engage
the jurisdiction of the
Equality Court. In dealing with this question, it is convenient to
consider, first, the relevant provisions
of ESTA, being one of the
pieces of legislation the applicants invoke. On their version, they
are persons who on or after 4 February
1997 have had OV’s
consent to reside on Oak Valley. They are thus ‘occupiers’
as defined in ESTA. In terms of
s 6(1) they have the right to reside
on and use the land on which they have so resided, and to have access
to such services as
have been agreed between themselves and the
owner, until the consent is duly terminated.
[23]
Section 5 provides that,
subject to justifiable limitations based on human dignity, equality
and freedom, an occupier and an owner
have the right
inter
alia
to human dignity,
freedom and security of the person, privacy, freedom of association
and freedom of movement, with due regard
to the objects of the
Constitution and ESTA.
[24]
Section 6(2), without
derogating from the generality of s 5 and s 6(1), says that an
occupier shall have the rights listed
in that subsection, such to be
balanced with the rights of the owner. These rights are: security of
tenure; to receive
bona
fide
visitors at
reasonable times and for reasonable periods; to receive postal or
other communication; to family life in accordance
with the culture of
that family; burial rights as circumscribed; and the right not to be
deprived of access to water and educational
and health services.
[25]
Of the specific rights
listed in s 6(2), the right to family life is, by way of a
proviso to s 6(2)(
d
),
made inapplicable ‘in respect of single sex accommodation
provided in hostels erected before 4 February 1997’. The
EC
hostel was built in 1988. It follows that the applicants cannot, in
terms of ESTA, claim that their right of occupation includes
the
right to family life in accordance with Qumbu culture.
[26]
Although there is a
dispute about the applicants’ entitlement to remain in
occupation of the EC hostel, for purposes of the
jurisdictional
dispute I assume that they are permanent employees having consent to
reside in the EC hostel. Their right to reside
there, and alleged
attempts at their eviction, are not the subject of the present
proceedings. It is the character and quality
of the accommodation
which is the focus of the first complaint. The present case is also
not concerned with alleged violations
of any of the other rights of
occupation listed in s 6(2).
[27]
The right of occupation
enjoyed in terms of ESTA is a right to occupy in accordance with the
consent and agreement between the owner
(or person in charge) and the
occupier. What appears from the founding papers is that the consent
granted by OV has been for the
applicants to occupy the EC hostel
with the services customarily provided to that hostel. The applicants
complain that the EC hostel
is inadequate but do not say that OV has
agreed to provide them with anything more.
[28]
Having regard to the
proviso to s 6(2)(
d
),
the provision of accommodation in a single-sex hostel erected before
4 February 1997 cannot be construed as violating the fundamental
right to human dignity recognised in s 5 insofar as family life is
concerned. On the other hand, single-sex hostel accommodation
may
infringe human dignity by being cramped and crowded. Although there
is a factual dispute on this score, I assume for present
purposes
that accommodation in the EC hostel does – having regard to the
number of workers housed there – infringe
their human dignity.
[29]
It is perhaps doubtful
whether s 5 of ESTA can be invoked by an occupier to force a
private owner to provide housing of a materially
superior and more
extensive character than that forming the subject of the consent and
agreement between occupier and owner. The
parties’ legal
representatives were not able to refer me to any case where s 5 had
been invoked in this way.
[30]
In
Daniels
v Scribante
[2017]
ZACC 13
;
2017 (4) SA 341
(CC), containing perhaps the most powerful
and moving judgments yet delivered in this country about land
dispossession, the court
held that Ms Daniels, an ESTA occupier, had
a right to make improvements to the dwelling which she had for 16
years occupied with
the owner’s consent. She wanted, at her own
cost, to level the floors, pave an outside area and install an indoor
water supply,
a wash basin, a second window and a ceiling. The
Constitutional Court described these as ‘basic human amenities’
(para
7). The owner admitted that without these improvements the
dwelling was not fit for human habitation but argued that the right
to make improvements was not one of the rights listed in s 6.
[31]
The Constitutional Court
emphasised s 5 in reaching its conclusion that Ms Daniels’
right to reside and use her dwelling
in terms of s 6(1) included
the right to make improvements to render the dwelling habitable. The
court also addressed an argument
by the owner that to allow the
occupier to do so would indirectly impose a positive obligation on
the owner because upon the termination
of Ms Daniels’
occupation the owner might be ordered to compensate her for the
improvements in terms of s 13(1)(
a
)
of ESTA. The majority (per Madlanga J) addressed the horizontal
application of the Bill of Rights and concluded that the possibility
of a compensation order as a positive obligation was not one from
which the court should shrink. Whether the owner would be ordered
to
pay compensation depended on a variety of considerations – it
might or might not happen (para 51 – in terms of s 13(1)(
a
)
compensation is payable ‘to the extent that it is just and
equitable with due regard to all relevant factors’ including
those listed in para (
a
)).
[32]
Scribante
does
not deal with the question whether an owner itself has a positive
obligation to make improvements; and the improvements at
issue in the
case did not involve substantial extensions to the housing the owner
had consented to provide.
[33]
If, however, an occupier
may deploy s 5 to force an owner to provide materially superior
housing so as to remove a violation of
the occupier’s human
dignity, the question must still be answered whether this is
something which can be done in the Equality
Court. Chapter V of ESTA
provides that proceedings under that Act may (subject to ss 19
and 20) be instituted in the magistrate’s
court within whose
area of jurisdiction the land is situated or in the Land Claims Court
(‘LCC’). Sections 19(
b
)
and 20(1)(
b
)
contemplate remedies which would embrace a declaration of the rights
of an occupier flowing from an alleged violation of s 5
and
interdicts to give effect to the declaration, including the setting
of time-limits for the implementation of the order (s 18(
a
)).
Indeed, in
Daniels v
Scribante
,
supra
,
the case started out in the magistrate’s court, presumably in
terms of s 19(1)(
b
),
followed by unsuccessful attempts to appeal to the LCC and the
Supreme Court of Appeal (para 10).
[34]
To the extent that a
matter falls within the jurisdiction of the LCC, such jurisdiction
is, in terms of s 20(2) of ESTA, to
the exclusion of the courts
contemplated in s 166(
c
),
(
d
)
and (
e
)
of the Constitution, unless the parties agree that proceedings may be
instituted in the High Court (s 17(2)) or unless the
matter
falls within the jurisdiction of the magistrates’ court in
terms of s 19 of ESTA. The Equality Court, when presided
over by
a judge, is a court of status similar to a High Court as contemplated
in s 166(
e
)
(
Manong
& Associates (Pty) Ltd v Department of Roads & Transport,
Eastern Cape Province & another
[2009]
ZASCA 59
;
2009 (6) SA 574
(SCA) para 31)
.
[35]
The applicants’
attorney referred me to the decision of Heher JA in
Agrico
Masjinerie
(Edms) Bpk v Swiers
2007
(5) SA 305
(SCA), where it was held that s 20(2) of ESTA did not
preclude a court other than the LCC from interpreting and assessing
the scope of ESTA. However, Heher JA did not say that a party
asserting rights under ESTA could bypass the exclusive jurisdiction
of the LCC. In that case the applicant in the court
a
quo
had not asserted
rights under ESTA; it brought a conventional eviction application in
terms of the Prevention of Illegal Eviction
from and Unlawful
Occupation of Land Act 19 of 1998. The respondent in defence relied
on rights arising from ESTA but did not seek
any relief by way of
counter-application. The applicant considered such reliance
ill-founded. In the circumstances, so Heher JA
held, the High Court
had not been precluded from interpreting ESTA to establish whether
the defence was sound. In the present case,
by contrast, the
applicants have alleged that they have rights in terms of ESTA, and
what I am assessing in this part of my judgment
is whether relief, to
the extent that it is sourced in ESTA, can be claimed in the Equality
Court.
[36]
If, however, it were
concluded that such a matter is not governed by Chapter V, it does
not follow that the Equality Court is the
correct forum. The
violation of s 5 would not be a matter of unfair discrimination;
it would involve the infringement of different
fundamental rights, in
particular the rights to human dignity (s 10 of the
Constitution), privacy (s 14) and adequate
housing (s 26(1)).
Although the human dignity of a victim of unfair discrimination will
almost always be violated by unfair
discrimination (a fact recognised
in the preamble to the Equality Act and in s 14(3)(
a
)
thereof), human dignity can be violated in ways which do not involve
discrimination. Inadequate housing and violations of privacy
are
examples (cf
Dladla &
others v City of Johannesburg & another
[2017]
ZACC 42
;
2018 (2) SA 327
(CC) paras 47-49, a case concerning the
provision of temporary accommodation by a public authority, in which
no reference was made
to s 9 of the Constitution or to unfair
discrimination).
[37]
Violations of the cluster
of rights which lie at the heart of the first complaint thus do not
engage the jurisdiction of the Equality
Court. This is so whether the
case is framed with reference to s 5 of ESTA or directly with
reference to ss 10, 14 and
26(1) of the Constitution. Subject to
any exclusive or concurrent jurisdiction on the part of the LCC or
Labour Court, the remedies
for such infringement would have to be
sought in the High Court.
[38]
The applicants might
notionally have contended that the provision of inadequate and
undignified housing is an ‘unfair labour
practice’ as
defined in s 186(2) of the Labour Relations Act 66 of 1995 (‘the
LRA’), or they could have
disputed the standard of their
housing as a ‘matter of mutual interest’ as contemplated
in s 134 of the LRA. But
they have not done so, and the remedies
under the LRA would not be a matter for the Equality Court.
[39]
Subject to one final
consideration, to which I shall return presently, I conclude that the
first complaint does not fall within
the jurisdiction of the Equality
Court. The second complaint
prima
facie
does so but it
is necessary in that regard to consider the Employment Act, because
s 5(3) of the Equality Act states that
it does not apply to any
person to whom and to the extent to which the Employment Act applies.
This presents something of a conundrum,
since s 49 of the
Employment Act provides that the Labour Court has exclusive
jurisdiction to determine any dispute ‘about
the interpretation
or application of’ the Employment Act, except where that Act
provides otherwise.
[40]
This question was not
ventilated during argument in the present case. In
Strydom
v Chiloane
[2007] ZAGPHC 234
;
2008 (2) SA
247
(T) the court, on appeal from a magistrate’s court sitting
as an equality court, held that the complainant’s case should
have been brought in the Labour Court in terms of the Employment Act.
Hartzenberg J, with whom
Makhafola
AJ concurred, added (para 17)
that even if he were wrong, and there were a possibility of dual
jurisdiction, the magistrate should
have heeded s 49 and
referred the matter to the Labour Court to decide the question of
jurisdiction.
[41]
In
AS
v Neotel
2019 (1) SA
622
(GJ) Spilg J observed (para 55) that the view expressed in
Strydom
appeared to have been reached without the benefit of countervailing
argument. He thought that s 49, being a general provision
applicable to all courts, ‘ought to yield to a provision of
specific application to the Equality Court’. He also thought
that the intention and purpose of the Equality Act (expeditious and
inexpensive adjudication) would be defeated if proceedings
in the
Equality Court had to be held in abeyance while the Labour Court (and
potentially further courts on appeal from the Labour
Court)
determined the question of jurisdiction (para 56). At a practical
level, he suggested that the legislature 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.
[42]
In my opinion, s 49
of the Employment Act should not be read as precluding an Equality
Court from determining whether it has
jurisdiction. The determination
of jurisdiction is a fundamental task of any adjudicative body.
Furthermore, the Equality Act was
enacted after the Employment Act.
Section 5(3) is a provision contained in the Equality Act. In the
nature of things, disputes
regarding the interpretation and
application of s 5(3) will arise only in the Equality Court. One
may legitimately ask who
the lawmaker intended should decide those
disputes. The obvious answer is, the Equality Court. If the lawmaker
had intended all
such matters to be referred to the Labour Court, it
would surely have said so.
[43]
To the extent that s 49
of the Employment Act might be interpreted as applying to a
fundamental question such as the jurisdiction
of tribunals, I would
find that there is an inconsistency between s 49 of the
Employment Act and a necessary implication in
the Equality Act that
disputes regarding the interpretation and application of s 5(3)
are matters for the Equality Court to
decide. In that event, the
necessary implication in the Equality Act must, in terms of s 5(2),
prevail.
[44]
The Employment Act, like
the Equality Act, contains provisions in its preamble and in ss 2
and 3 which are relevant when assessing
its ambit. The preamble
recognises that as a result of apartheid and other discriminatory
laws and practices, there are disparities
in employment, occupation
and income within the national labour market; and that these
disparities create such pronounced disadvantages
for certain
categories of people that they cannot be redressed simply by
repealing discriminatory laws. The preamble continues
by stating that
the Employment Act has been enacted
inter
alia
to promote the
constitutional right of equality, to eliminate unfair discrimination
in employment, and to ensure the implementation
of employment equity
to redress the effects of discrimination.
[45]
This is reinforced by s 2
which states that the purposes of the Employment Act include the
achieving of equity in the workplace
by promoting fair treatment in
employment through the elimination of unfair discrimination. Section
3 requires the Act to be interpreted
inter
alia
in compliance
with the Constitution and in a way that gives effect to the Act’s
purposes.
[46]
There is thus no
justification for giving the Employment Act a narrow interpretation.
Where discrimination is connected with the
employment relationship,
one should in case of doubt lean in favour of the application of the
Employment Act. Stated differently,
both the Employment Act and the
Equality Act should, in view of their profoundly important remedial
purposes, be interpreted generously
in favour of jurisdiction.
[47]
In terms of s 6(1) of the
Employment Act, no person may ‘unfairly discriminate, directly
or indirectly, against an employee,
in any employment policy or
practice, on one or more grounds, including race, gender, sex, ... ,
ethnic or social origin, colour,
. . . or on any other arbitrary
ground’. For present purposes, this prohibition of ‘unfair
discrimination’ is
substantially the same as in the Equality
Act, save that the Employment Act is limited to discrimination
against an employee, whereas
the Equality Act applies to
discrimination against any person.
[48]
In terms of s 10 of the
Employment Act, any party to a dispute concerning Chapter II (this
includes a dispute about prohibited unfair
discrimination) may refer
the dispute in writing to the Commission for Conciliation, Mediation
and Arbitration (‘CCMA’)
established in terms of s 112 of
the LRA. If the dispute remains unresolved after conciliation by the
CCMA, any party may refer
it to the Labour Court for adjudication or
to the CCMA for arbitration (in the latter event, only if all the
parties agree or if
the unfair discrimination falls within the ambit
of s 10(6)(
aA
)).
[49]
Section 49 of the
Employment Act provides that the Labour Court has exclusive
jurisdiction to determine any dispute about the interpretation
or
application of the Act, except where the Act provides otherwise. The
‘application’ of the Act includes a dispute
about unfair
discrimination against an employee. Section 50(2) sets out, in that
regard, the just and equitable orders which the
Labour Court can make
if it decides that there has been unfair discrimination against an
employee.
[50]
What I have styled the
second complaint falls squarely within the prohibition contained in s
6 of the Employment Act. The applicants’
attorney submitted
that his clients’ housing complaint could not naturally be
described as discrimination in an ‘employment
policy or
practice’ as that expression is defined in s 1 of the
Employment Act. I disagree. The expression is defined as
including
‘but is not limited to’ the matters listed in paras (
a
)
to (
m
)
of the definition. Para (
d
)
covers ‘remuneration, employment benefits and terms and
conditions of employment’. The alleged differential treatment
between African workers on the one hand, and white and coloured
workers on the other, in relation to housing fits squarely within
the
notion of an employment policy or practice concerning employment
benefits and terms and conditions of employment. Even if it
did not,
the definition is not exhaustive, and the alleged differentiation is
quite clearly within the ordinary meaning of ‘employment
policy
or practice’.
[51]
It follows that the only
route for pursuing the second complaint is by way of a referral to
the CCMA for conciliation followed either
by adjudication by the
Labour Court or (subject to the relevant qualifications) arbitration
by the CCMA.
[52]
I foreshadowed a final
issue I wished to address in relation to the first complaint. I have
explained why a complaint invoking violations
of human dignity,
privacy and the right to adequate housing does not fall within the
Equality Court’s jurisdiction. I must
nevertheless acknowledge
that the first complaint, like the second, might be said to involve
racial discrimination. It might be
contended, in this regard, that
even if the African workers in the EC hostel were the only workers to
whom OV offered housing (ie
even if there were no actual differential
treatment), the undignified character of their housing has its roots
in an attitude by
their employer that such accommodation is good
enough for African people even though it would not be good enough for
white or coloured
people. Such an attitude in turn might be traced
back to the historical discriminatory treatment of African migrant
labourers.
[53]
If such a case is to be
discerned in the founding papers, it too would fall within the scope
of unfair discrimination as contemplated
in the Employment Act. The
victims of the discrimination are (on the applicants’ case)
employees. Their treatment, on this
hypothesis, would be explicable
with reference to their race, ethnicity or social origin, the premise
being that they would be
treated better if they were not African. The
very basis of the case I have supposed is that discrimination on
grounds of race may
exist even though there happen to be no other
employees of a different race receiving preferential treatment.
[54]
The applicants’
attorney submitted that the Equality Act and the Equality Court were
tailor-made to deal with cases of systemic
inequality such as those
associated with the migrant labour system. He submitted that the
Labour Court is not clothed with the
extensive powers which the
Equality Act vests in the Equality Court to grant effective redress.
[55]
I accept that the
applicants’ complaints squarely raise systemic discrimination
with its roots in the migrant labour system,
a system I may add that
predates the baleful apartheid regime which the National Party
inaugurated in 1948. This does not mean,
however, that the Employment
Act is not the appropriate and mandated legislative measure to
redress the grievance in the present
case. One of the main spheres of
human activity in which systemic discrimination has manifested itself
in South African history
is labour relations. Whatever its historical
genesis, and however extensive the single-sex hostel phenomenon may
still be, the
housing issue is, in the present case, strictly between
OV and its employees. Regardless of the court that hears the case,
the
only order that could be granted is one operating between OV and
its employees.
[56]
If the Employment Act did
not empower the Labour Court to grant redress for unfair
discrimination as ample as the Equality Court
could grant, that would
be a grave defect indeed. If the criticism were justified, it would
furnish grounds for challenging the
constitutionality of the relevant
provisions of the Employment Act, but it would not entitle the
Equality Court to disregard the
statutory provisions which confer
exclusive jurisdiction on the Labour Court.
[57]
As it happens, I do not
think that the Employment Act suffers from the suggested defect. In
terms of s 50(2) the Labour Court may,
if it decides that an employee
has been unfairly discriminated against, make ‘any appropriate
order that is just and equitable
in the circumstances’,
including those listed. Section 50(2)(
c
)
states that the court may make an order directing the employer ‘to
take steps to prevent the same unfair discrimination
or a similar
practice occurring in the future in respect of other employees’.
If the court can do this in relation to other
employees, it can
clearly do so in relation to the very employees who have already been
discriminated against – this would
be the first and most
obvious appropriate order that was just and equitable.
[58]
It is true that s 21(2) of
the Equality Act spells out the Equality Court’s powers in more
detail. After stating that the
court may make ‘an appropriate
order in the circumstances’, the subsection lists certain
specific orders which are
included in the appropriate orders that may
be granted: the court may make orders
inter
alia
that ‘specific
opportunities and privileges unfairly denied in the circumstances’
be made available to a complainant
(para (
g
));
that ‘special measures’ be implemented to address the
unfair discrimination (para (
h
));
that the respondent ‘undergo an audit of specific policies or
practices as determined by the court’ (para (
l
));
and that the respondent make ‘regular progress reports’
to the court or to a relevant constitutional institution
regarding
implementation of the court’s order (para (
m
)).
[59]
The fact that these
specific orders are not expressly mentioned in s 50(2) of the
Employment Act does not mean that the Labour
Court may not grant them
as ‘appropriate orders’ that are ‘just and
equitable in the circumstances’. It
would be strange indeed if
orders expressly sanctioned as appropriate in terms of s 21(2) of the
Equality Act were found to be
inappropriate and not just and
equitable for purposes of s 50(2) of the Employment Act.
[60]
In
AS
v Neotel
,
supra
,
Spilg J discussed whether, when the Equality Court’s
jurisdiction is challenged in terms of s 5(3) of the Equality
Act, one should have regard only to the cause of action or also to
the relief claimed. He favoured the second of these approaches
(paras
28-38), differing in this respect from
Strydom
v Chiloane
,
supra
.
The distinction is only important if a complainant seeks relief from
the Equality Court which would be beyond the power of the
Labour
Court to grant. I am by no means certain that there is any such
disjunct between the courts’ respective powers.
[61]
In para 51 of
Neotel
Spilg J quoted certain
relief claimed by the complainant in that case which he thought was
beyond the power of the Labour Court.
In regard to prayer 2.2 quoted
by the learned judge, I am doubtful whether s 21(2)(
m
)
would have empowered even the Equality Court to grant that relief.
The Equality Court can order a respondent (in that case, Neotel)
to
make progress reports to a court or other institutional body
regarding the implementation of the court’s order; the Equality
Court is not expressly empowered to compel another institution –
in that case, SAPS – to investigate and report back
to the
court.
[62]
In regard to prayer 2.3
quoted by the learned judge (a referral to the Director of Public
Prosecutions to make a decision on possible
prosecution), I do not
see why the Labour Court should be precluded from making a like order
if such were considered appropriate,
just and equitable. It is not an
infrequent occurrence for civil courts, when delivering judgment, to
refer matters uncovered by
the case to other bodies for investigation
and possible action.
[63]
In the event, the basis
for Spilg J’s finding that the Equality Court’s
jurisdiction was not ousted by s 5(3) was
that the applicant’s
complaint (one of sexual harassment) did not arise in the workplace
or from an ‘employment policy
or practice’ (paras 52-53).
In that respect
AS v
Neotel
obviously
differs from the present case. Furthermore, and even if it were so
that there are some orders the Equality Court could
grant which the
Labour Court could not, the present case does not seem to me to
involve any such orders.
[64]
The applicants’
attorney said in argument that the workers’ wives and children
might wish to join the litigation so
that their voices could be
heard. This was possible, he submitted, in the Equality Court but not
in the Labour Court. The system
of single-sex hostels is
self-evidently disruptive of family relations, and may bear heavily
not only on the men housed in such
hostels but also on their wives
and children from whom they are separated. This is one of the
applicants’ central themes.
[65]
In whatever forum the
present case is heard, the applicants will be entitled to call their
wives and children as witnesses to testify
about the hardship of
geographic separation. I doubt if such evidence would be contested.
The family members do not need to be
joined for their voices to be
heard. It is not clear to me that they would be entitled to be
joined. The alleged discrimination
in the present case is directed at
the applicants in their capacity as employees.
[66]
The fact that such
discrimination impacts on the employees’ families does not mean
that OV is discriminating against the family
members. Many cases of
unfair discrimination against employees will have a negative effect
on family members of the employees.
For example, if black employees
were paid less than white employees for equal work, or were refused
opportunities for promotion
on account of their race, the households
of the black workers would have less money to meet their needs. The
fact that there is
this knock-on effect on family members cannot mean
that the procedures laid down in the Employment Act need not be
followed. At
any rate, I do not currently have before me a case in
which non-employees, such as wives and children, are alleging that OV
has
unfairly discriminated against them.
[67]
Finally, I do not think it
is correct that there is greater scope for joinder of family members
in the Equality Court than in proceedings
before the CCMA and the
Labour Court. Persons with a substantial interest in the subject
matter of litigation in the CCMA and the
Labour Court may, even
though they are not employees, apply to be joined in such proceedings
(see CCMA rule 26(1)(
a
)
and Labour Court rule 22(2)(
a
)).
I do not think that the Equality Court, in exercising its power of
joinder in terms of regulation 10(5)(
c
)(v),
would be guided by considerations very different to those which would
govern joinder in the CCMA and the Labour Court.
[68]
The applicants’
attorney urged me to pay heed, in my interpretation of the Equality
Act, to the Act’s preamble, the
objects set out in s 2, the
principles governing interpretation contained in s 3, and the
‘guiding principles’ listed
in s 4. I have tried to do
so. The question, however, is not whether in general the applicants’
claims constitute unfair
discrimination as defined in the Equality
Act but whether the jurisdiction of the Equality Court is excluded by
s 5(3). The
language of that section is not ambiguous.
[69]
I thus conclude that the
Equality Court does not have jurisdiction to entertain this matter
and the proceedings must be dismissed.
I do not think I have the
power to refer the case to another forum in terms of s 20 of the
Equality Act. The Equality Court’s
referral power presupposes
that it has jurisdiction. In terms of s 20(1), the section as a
whole applies only to proceedings
‘under’ the Equality
Act. That must mean proceedings which can properly be instituted in
the Equality Court. And as
appears from s 20(8), the matter must
be one which the Equality Court can adjudicate if the alternative
forum fails to deal
with the matter timeously or resolve it
successfully.
[70]
As to costs, s 21(2)
provides that after ‘holding an inquiry’ the Equality
Court can make an appropriate order,
including an appropriate order
as to costs against any party to the proceedings (s 21(2)(
o
)).
Since I have no jurisdiction to hold an inquiry, this provision does
not strictly apply. On the assumption that a power to order
costs in
relation to a preliminary jurisdictional determination could be
sourced in s 21(5), which gives the Equality Court
all ancillary
powers ‘necessary or reasonably incidental’ to the
performance of its functions, it would not be appropriate
to make a
costs order in the present case. Since the Equality Act gives effect
to fundamental constitutional rights, the
Biowatch
principle applies.
Neither OV nor the DHS sought a costs order.
[71]
I thus make the following
order:
The
proceedings instituted in this court by the applicants under the
above case number are dismissed with no order as to costs.
______________________
O L
Rogers
Judge
of the Equality Court
Cape
Town
APPEARANCES
For
Applicants
Mr
H Smith
Henk
Smith & Associates
48
Constantia Road
Gardens,
Cape Town
For
First & Second Respondents
Ms
T Golden SC (with her Ms C-A Daniels)
Instructed
by
Basson
Blackburn Inc
109
Main Street
Paarl
For
Seventh Respondent
Ms
R Nyman
Instructed
by
State
Attorney
4
th
Floor, 22 Long Street
Cape
Town