IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable
Case no: J 493/19

In the matter between
TRUDY FORBAY First Applicant

PATRICK DOYLE Second Applicant
PETER STANDER Third Applicant
CARL PRETORIUS Fourth Applicant

and

UNIVERSITY OF SOUTH AFRICA (UNISA) Respondent
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives through email. The date for hand- down is deemed to be 20
June 2025.


JUDGMENT

2


Mahosi , J
Introduction

[1] This is an action for a alleged unfair discrimination, harassment and victimisation
brought by applicants in terms of section 10 of the the Employment Equity Act1 (EEA)
against the respondent, t he University of South Africa (“UNISA”). Al l the applicants are
classified c oloured s and based their claim on race and in addition, the first applicant (Ms
Forbay”), based her claim on her gender.

[2] The applicants sought compensation under section 50(2)(a) of the EEA, damages
under section 50(2)(b) of the EEA and an order directing the employer to take steps to
prevent the same unfair discrimination or similar practice occurring in the futur e in respect of
other employees under section 50(2)(c) of the EEA2. The constitutional damages under
section 38 of the Constitution of the Republic of South Africa3 were not persisted with.

[3] Although the parties agreed, in terms of the pre- trial minute, that the matter would be
heard for 10 days, at the end of the tenth day, the applicants had yet to close their case. Ultimately, the matter was heard for a total of 20 days between November 2022 and September 2024.


1 Act 55 of 1998, as amended.
2 Section 50(2) reads :
“If the Labour Court decides that an employee has been unfairly discriminated against, the
Court may make any appropriate order that is just and equitable in the circumstances, including-
(a) payment of compensation by the employer to that employee;
(b) payment of damages by the employer to that employee;
(c) 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; ”

3
The parties

[4] The applicants , Ms Trudy Forbay (“Forbay), Mr Patric Doyle (“Doyle”) , Mr Peter
Stander (Mr Stander) and Mr Carl Pretorius (Mr Pretorius) are all employed by UNISA and
hold management positions within the Study Material, Production and Delivery division (“SMPD”). SMPD is made up of three directorates, namely: Print Production, Dispatch and the Planning & Coordination. [5] The respon dent is the University of South Africa (“UNISA”).
Background
[6] The di spute between the parties has its genesis at a SMPD meeting of 26 June 2017
(“the June 2017 meeting”) between the applicants and Dr Marcia So cikwa ( Socikwa), the
then Vice Princip al of Operations and Facilities , Mr Maneng (“Maneng”) and Mr Wynand
Oberholzer (“Oberholzer”). In this meeting, Socikwa allegedly made a statement that she
“has a mandate to get ri d of C oloured and Indian” employees (“the impugned statement”) .

[7] Followin g the impugned statement , the applicant s were allegedly subjected to a
series of acts of bullying, harassment, victimisation, marginalisation, humiliation,
discrimination and denied career progression opportunities and financial benefits because of
their race and gender . This was allegedly at the hands of Socikwa and her subordinates, Dr
Lesley Ntswane (“Ntswane”), Mr Azwianewi Maudu (“Maudu”), and Oberholzer . Aggrieved
by UNISA’s alleged failure to thoroughly investigate and act upon Socikwa’s and her
subordinates’ actions , the applicant s brought this action.
Applicants’ case
[8] The applicants pleaded various events that , individually and collectively viewed, gave
rise to the alleged unfair discrimination and victimisation by UNISA’s employees on the basis
of their race and gender . Foremost amongst the events wa s the meeting of 26 June 2017 ,
4
which was convened by Socikwa after she had r eceived an anonymous email on 20 June
2017 and it was held physically, but Ms Forbay joined it telephonically. Dr Socikwa started
the meeting by reading out the email and went around t he room asking each attendee if they
had knowledge about origin of the email . Thereafter, she allegedly uttered the impugned
statement . Different versions of the exact words and meaning thereof became apparent
during the trial .

[9] The additional events include Socikwa’s instruction for the applicants to work during
the Student Service Delivery Strike of August 2017 and a threat to name and shame them
that if they did not work , SMPD strategic session convened by Socikwa with the SMPD
management team in November 2017, Socikwa’s instruction for the applicants to work
during January 2018 NEHAHWU strike; removal of Mr Bagus , (the then director of Print
Production) from his position as acting Executive Director (“ED”) and his resignation , SMPD
Emergency meeting; reduction of the applicants ’ scope of responsibilities , Socikwa’s
fraudster allegations against the applicants , misconduct charges against the applicants ,
down-rating of the applicants’ performance; and Socikwa’s allegations during her SAB C
Board i nterview.

[10] The applicants’ case is that UNISA breach ed section 6(1) and 6(3) of the EEA by
failing to thoroughly investigate, consider, act upon and censure the above acts.

Respondent’s defence

[11] UNISA denied that it, or any of its employees, engaged in any form of harassment,
victimisation or g ender and racial discrimination. It led its evidence t hrough Dr Ntswane
(“Ntswane”), Mr Maudu (“Mudau”) , Socikwa and Oberholzer and contended that the
applicants had no valid grounds for their claim in terms of the provisions of the EEA. Issues for determination

5
[12] Whether the applicants were discrimination against by UNISA’s employees and if so,
whether it was unfair.

Legal framework

[13] The E mployment Equity Act was created to address job and income inequalities
caused by apartheid and discrimination. Its goals are to promote equality and democracy, eliminate unfair discrimination in employment, achieve a diverse workforce, enhance economic development, and fulfill the Republic's obligations as a member of the International Labour Organisation. Section 5 requires every employer to take steps to promote equal
opportunity in the workplace by eliminating unfair discrimination in any employment policy or
practice. Section 6(1) prohibits unfair discrimination and it reads:
“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, pregnancy, marital status, family responsibility, ethnic or social origin, colour,
sexual orientation, age, disability, religion, HIV status, conscience, belief, political
opinion, culture, language, birth or on any other arbitrary ground.”

[14] Section 6(3) provides that “harassment of an employee is a form of unfair
discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1).” Regarding the burden of proof, section 11 of EEA
provides that:
“(1) If unfair discrimination is alleged on a ground listed in section 6(1), the
employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination-
(a) did not take place as alleged; or
(b) is rational and not unfair, or is otherwise justifiable.
(2) If unfair discrimination is alleged on an arbitrary ground, the complainant must
prove, on a balance of probabilities, that -
(a) the conduct complained of is not rational;
(b) the conduct complained of amounts to discrimination; and
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(c) the discrimination is unfair. ”

[15] To the extent that the applicants claim unfair discrimination on race and gender,
section 11(1)(a) and (b) requires the UNISA to prove that the alleged discrimination did not
occur or that such discrimination was rational, not unfair, or otherwise justifiable.

[16] The test for determining whether differentiation between people or categories of
people amounted to unfair discrimination was set out by the Constitutional Court in Harksen
v Lane N .O. and others4 as follows:
“The determination as to whether differentiation amounts to unfair discrimination
under section 8(2) requires a two stage analysis. Firstly, the question arises whether
the differentiation amounts to “discrimination” and, if it does, whether, secondly, it amounts to “unfair discrimination”. It is as well to keep these two stages of the enquiry separate. That there can be instances of discrimination which do not amount to unfair discrimination is evident from the fact that even in cases of discrimination on the grounds specified in section 8(2), which by virtue of section 8(4) are presumed to constitute unfair discrimination, it is possible to rebut the presumption and establish that the discrimination is not unfair. ” [Footnotes omitted]
Evidence
[17] All four applicants testified in support of their claim and UNISA led its evidence
through Socikwa, Ntswane, M audu, Socikwa and Oberholzer .
The meeting of 26 June 2017
[18] The meeting of 26 June 2017 between all the applicants , Oberholzer and Maneng
was common cause. The dispute is on the exact words used by Socikwa and meaning
thereof.


4 1998 (1) SA 300 (CC), at para 45
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[19] Forbay testified that Socikwa claimed she had a mandate to eliminate C oloureds and
Indians. Stander and Mr. Doyle supported this, stating that Socikwa said she found her job
challenging due to the applicants. Pretorius and Oberholzer confirmed that Socikwa said she
knew her mandate and faced difficulties from the managers regarding this task.

[20] Socikwa testified that she had a meet ing with two upset African shop- stewards who
felt mistreated by Print Production managers, whom they described as coloured. They wanted these managers disciplined but Socikwa viewed their complaints as a reflections of
their experiences and not racist. On 20 June 2017, she received an aggressive email about
industrial relations and called a meeting with Print Production managers to discuss it. She stated that she did not remember using the word “Indians,” but if she did, it would have been
to convey being told to remove C oloureds and Indians, which was not her approach. She
aimed to improve relationships with staff as tensions rose and emphasized that her focus
was on equal treatment and positive industrial relations . She clarified that her “mandate” was
about her job performance, not discrimination and to illustrate this, she stated that the only
employee who left during her time did so voluntarily.

Student service delivery strike
[21] In August 2017, some UNISA students went on strike due to poor service delivery.
The applicants’ evidence was Socikwa issued an instruction to “SMPD management” to work
during this period and threatened them with public shaming if they refused. The applicants
created a plan to recover lost ti me, but Socikwa rejected it and instructed them to work.
When they tried to report for duty on a Saturday, they were blocked by members of
NEHAWU. The y reported this to Socikwa, who told them to file charges agains t the
intimidators. As such, they claim that Socikwa endangered their lives, alleging harassment
based on race and gender.
SMPD stragetic session

[22] In November 2017, Socikwa met with SMPD management to improve senior manager
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relationships. The applicants complained that the meeting reinforced victimization and
discrimination based on race and gender in that Socikwa expressed distrust towards them ,
pointed at some of them with an instruction moved from their sits , humiliated and forced
them into a hum iliating song and dance routine, and publicly criticized Pretorius by accusing
him of not following instructions and refusing to work at the Florida campus .
[23] Socikwa denied pointing only at the applicants, explaining her gesture was inclusive
of all management. She observed that management sat in cliques and sought to promote
interaction. As such, she randomly asked two managers to switch seats for team building,
with no racial implications. She clarified that her comments about mistrust were made in jest
for ever yone, not just the applicants. Oberholzer testified that he understood Socikwa's
statement and conduct in the same way Socikwa explained. Socikwa stated that she asked
the managers for a team -building exercise, and they chose a song and dance routine. A
video of the exercise, featuring Stander, Pretorius, and colleagues, was shown in Court.
NEHAWU strike

[24] In January 2018, NEHAHWU members at UNISA went on strike. Socikwa instructed
SMPD management to work during this time. The applicants claim unfair treatment, harassment, and risk to their safety due to lack of security and counseling support.

[25] Sociwa testified that she arranged with the Head of S ecurity , Robbie Arnolds , for the
managers' safety and emailed HR to organize counselling for affected employees, which HR agreed to. Further, she said the applicants knew that UNISA offered free counselling
services, which Forbay had used before.
Resignation of Bogus
[26] Bagus , the then director of Print Production , briefly served as acting Executive
Director for SMPD before resigning from UNISA in early 2018. The applicants allege d that
he was unfairly removed by Socikwa, leading to increased victimization against them. They
9
claim ed that following Bagus's resignation, Maudu appointed Pretorius and Oberholzer to act
in his role for three mont hs. However, only Oberholzer acted and Pretorius was informed
that the position would be eliminated.

[27] The applicants allege that Maudu played a role in this by removing Forbay from her
position as Chairperson of the Quality Committee without any discussion. Maudu created a
new committee to perform the responsibilities of Forbay's section, leaving Forbay and her
team out of work. Forbay informed Professor Nengwekhulu through email about this on 26
March 2018, but this only escalated the bullying and harassment. On 03 April 201 8, Socikwa
held a meeting in which he made derogatory comments about C oloureds and Indians. O n 04
April 2018, she announced the removal of the Director position, limiting reporting lines
without consultation.
[28] Maudu testified that there was no SMPD Quality Committee and he did not remove
Ms Forbay as a chair person. He stated that UNISA has a Quality Committee made up of
Executive D irectors. He suggested that Ms Forbay’s belief about chairing SMPD Quality
might stem from an informal agreement with the former acting Executive D irector, Bagus. He
learned about Ms Forbay’s role when Professor Nengwekhulu asked him about an email
complaint regarding her removal. Maudu explained that his plan was to set up a struc ture for
overall SMPD quality, while Ms Forbay’s focus was limited to Print Production. However, this
committee never formed. He also denied making a derogatory reference to “Peets” and
clarified it referred to a colleague, Peet Viljoen, not the applicants.

[29] Maudu testified about the acting D irector position, stating that he proposed to
Pretorius and Oberholzer that they alternate as Acting D irectors of Print Production for three
months each. Pretorius agreed to let Oberholzer to act first from March to May 2018, which
was confirmed by Oberholzer. Following this period, Ntswane became ED in May 2018 and
decided that two Deputy Directors positios would suffice, eliminating the need for an acting
director. Maudu refuted claims that Pretorius was denied another opportunity to act in favou r
of Oberholzer in January 2020, explaining that financial constraints prevented any acting
appointments during that second period. Both Pretorius and Oberholzer acknowledged that
10
the failure to act was due to finances, not race and no acting appointments occurred during
this time.

[30] Ntswane testified regarding Pretorius’ claim of redundancy and stated that the
proposal new structure was aimed at creating a new Directorate called Enablement and
Integration Support, which would lead to the discontinuation of one Deputy Director position
while establishing a new role with broader responsibilities. No specific individuals were
chosen for removal, and either of the current deputy directors (Oberholzer or Pretorius)
could take the new position if they qualified. He stated that UNISA aimed to implement these
changes without job losses, a point not disputed during cross -examination. Socikwa testified
that she appointed Bagus and supported his term renewal twice. According to her, Bagus’
removal from an acting position was due to his frequent illness, which led to her taking over
his responsibilities.

Reduction of responsibilities
[31] The applicants claim that they faced reduced job responsibilities, which they see as a
demotion aimed at targeting coloureds and Forbay as a woman. Forbay specifically states
that quality assurance was taken from her and given to a new committee set up by Maudu.
She also mentioned losing tasks like proofreading, her removal from the SMPD Succession
Plan and Employment Equity chairperson position, and not being listed in the SMPD report
despite her contributions. Pretorius complained about being removed from the admin and
stores sect ion after his suspension and claimed he was excluded from Budget Committee
meetings.

Emergency meeting
[32] An emergency staff meeting was held by Socikwa to discuss a new SMPD structure,
with both staff and management present. Forbay and Doyle complained that they were not
allowed to speak, claiming this showed unfair treatment and discrimination. Socikwa stated
the meeting was for staff to ask questions and did not want management to speak. Forbay
11
and Doyle repeatedly raised their hands but were ignored, and an African manager faced the
same issue. Frustrated, Forbay and Doyle left, with Forbay disputing that they slammed the
door, saying it was faulty. Socikwa testified that the request for managers not to speak
applied to all managers and the door did not slam when others left the meeting. Maudu supported Socikwa’s evidence.

Fraudster allegations

[33] Concerning the meeting of 04 May 2018, t he applicants claimed that Socikwa told
them to stop their "cancerous writing" in emails and not to accept management positions if
they had issues. She called them "fraudsters" and asked them to leave the meeting. The
applicants testified that this term suggested they had committed fraud against UNISA, linking
them to a previous investigation. They alleged this was harassment and discrimination
based on race and gender.
[34] Socikwa explained that she was upset by an email complaint from the applicants to
the Vice Chancellor, which misrepresented her words about getting rid of certain groups.
She acknowledged using the term "fraudsters" but clarified it was meant informally, related to
feeling misrepresented, and had no connection to any alleged financial misconduct.

Mailula threats
[35] Forbay testified about an incident on the factory floor where the four applicants saw
Ephraim Mailula cooking, which violated safety rules. Mailula reacted angrily and recorded
the applicants on video. During the incident, Mailula made a call to someone he referred to
as "Doctor," implying issues with management, which the applicants believed was directed at either Ntswane or Socikwa, both of whom are doctors. Forbay reported the incident to her
superiors, including Oberholzer and Ntswane, but the appl icants claim Ntswane did nothing,
implying approval of Mailula's actions. They feel that this led to further harassment,
victimization, and discrimination based on their race and Forbay's gender. Mailula also
stated he would act as an informant for Socikwa.
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[36] Ntswane testified that he received a complaint and supported its filing by submitting a
grievance to HR. He clarified that he took action by moving the culprits away from the
shopfloor. Oberholzer confirmed Ntswane's account, stating he supported escalating the
complaint against Mailula. Ntswane, as the E xecutive Director , explained that he assessed
the complaint's nature and concluded it couldn't be resolved internally, leading him to sign it
off. Socikwa stated that she did not condone the conduct and supported action against
Mailula. Both Ntswane and Socikwa affirmed that the Doctor called was not either of them.
Misconduct charges

[37] Doyle, Pretorius, Stander, and Oberholzer received notices for suspension related to
the Bytes contract with UNISA. Only Doyle and Pretorius were actually suspended. The
applicants argue that their suspensions were due to racial discrimination, claiming they were
targeted because they are C oloured, while Oberholzer, who is W hite, was not suspended.
Pretorius alleged that Oberholzer was allowed to contest his suspension, unlike Pretorius.
Both Doyle and Pretorius expressed frustration over the lengthy suspension and noted that
UNISA had not yet conducted a disciplinary hearing regarding the charges against them,
blocking their access to necessary documents for preparation.

[38] UNISA disputes Pretorius and Doyle ’s claims regarding the suspension process.
Ntswane stated that he did not allow Oberholzer to present any representations . This
decision was made by Mr. Labuschagne. Mr Oberholzer supported this account. Ntswane
said he did not decide to suspend anyone and t he suspensions were based on an external
investigation (the Duja report), and no internal personnel at UNISA were involved in
selecting individuals for suspension or disciplinary action.

[39] Ntswane mentioned that although a disciplinary enquiry was scheduled, it was
disrupted by a union protest during the first meeting, which caused delays. The union
subsequently requested that the proceedings be stopped, but the Vice Chancellor did not
agree, and the hearing was rescheduled to February 2019. By then, Labuschagne had left
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UNISA, followed by Dr Kgaphola’s brief tenure. Ntswane highlighted the issue of lengthy
disciplinary processes at UNISA, noting his own suspension in April 2022 and the delay in
receiving formal charges until a month before his contract ended in May 2023. He
emphasized that this issue affected all employees, regardless of race, and Doyle
acknowledged that the delays were systematic.

Down rating

[40] UNISA employees undergo performance evaluations where they rate themselves,
and supervisors review these ratings. In Forbay's case, she rated herself 3.7 for "operations
and excellence," but her supervisor, Oberholzer, lowered her score to 3.3, causing her
overall evaluation to drop to 3.5 and resulting in a smaller bonus. Forbay claimed this downrating was unfair and a for m of victimization, harassment, and discrimination based on
her race and gender.

[41] Pretorius and Doyle complained about delays in their 2018 and 2019 performance
ratings, claiming it affected their bonuses and was due to harassment and discrimination
based on their race. UNISA explained that the 2018 delay was because both were on
suspension, complicating the rating process. They acknowledged that others also faced
delays for various reasons, including individuals of different races. Doyle testified about a
white colleague’s delay due to suspension. For 2019, all employees had slight delays in
bonus payments due to industrial action, although ratings were completed on time. Pretorius and Doyle admitted their suspensions were the real cause of the delays and were invited to
withdraw their complaint, which they chose not to do.
SABC Board Interview March 2019
[42] Socikwa attended a 2019 interview before Parliament’s Portfolio Committee on
Communications for a position on the SABC board. During the meeting, she was asked
about the impugned statement , and response, she claimed that some applicants committed
fraud worth millions of rands. The applicants testified that Socikwa embarrassed them and
14
harmed their reputations. They alleged harassment, victimization, and discrimination based
on race and gender.

[43] Socikwa stated that she appeared the interview in her personal capacity, not as
UNISA’s representative. She mentioned that the individuals referred to in connection with
fraud claims were part of the Duja report, none of whom included Forbay. Socikwa stated
that she only highlighted that certain individuals could not explain specific expenditures.
Shortlisting – August 2019
[44] This claim relates to the hiring process for the vacant Deputy D irector for Planning
and C oordination position within the SMPD unit. Forbay applied for the job but was not
shortlisted in the first round. After re -advertising the position, she was shortlisted in the
second round but did not get the job. Instead, Esther Mahloele (“Mahloele”) was chosen.
Forbay claims she met the requirements for the position and argues that Mahloele was given unfair advantages, including tailored application requirements.
[45] Forbay believes her exclusion was due to discrimination based on her race and
gender. She was told by HR that she was not an employment equity target. She argues that
an institutional employment equity plan, which would have favored her, should have been
used instead of the divisional plan that excluded her. Thus, she claims she faced unfair
discrimination related to her race and gender.
[46] Ntswane testified that Forbay was not shortlisted in the first recruitment round
because her experience did not meet the job requirements, with panel members marking her
application as lacking experience. Ntswane stated that Forbay's exclusion was not due to
employment equity targets, despite an HR representative incorrectly suggesting it. Ntswane corrected this mistake and emphasized the importance of clear communication regarding the
reasons for shortlisting. In the second recruitment round, Forbay m odified her CV, which
improved her chances of being shortlisted due to fewer applicants.

[47] Ntswane asserted that both candidates were asked questions in a fair and consistent
15
manner, a point confirmed by Socikwa. Regarding employment equity, Ntswane clarified that
Forbay was not excluded for her race. H owever, he said African females were notably
underrepresented in the specific department. The SMPD plan indicated a significant
underrepresentation of African females at the qualified levels, while there were already one
colored female and one white female in similar positions. He explained that the divisional plan must be used for recruitment, as it addresses representation concerns at a division
level, aligning with the goals of transformation and equity. Socikwa, who only participated in
the second round of recruitment, supported Ntswane’s statements regarding fair questioning
and the application of the employment equity plan, highlighting that applicants cannot dictate
the nature of the questions asked in interviews.

SAHRC investigations and UNISA’s Human Resource failures

[48] The applicants claim that UNISA failed to address the SA HRC findings from
November 2022 and its HR Department had failed to address the applicants’ numerous
complaints related to the above- mentioned events and that such a failure is in line with the
mandate to get rid of Coloureds and Indians. While UNISA accepts that there are serious
systematic weakness es within its HR department, it asserted that this was not attributed to
an agenda to get rid of Coloured and Indians.
Analysis

[49] Regarding the meeting of 26 June 2017, the main issue in the dispute is whether
Socikwa claimed she had a mandate to remove Coloureds and Indians (“version one”) or if she stated she was told to remove them, with "mandate" used differently in that context (“version two”). UNISA argues that version two should be accepted as it supported by Socikwa's undisputed testimony and corroborated by Pretorius and Oberholzer. According to UNISA, Oberholzer had no reason to favou r Socikwa and mentioned experiencing her
rebuke. UNISA submitted that it seems unlikely that anyone would give Socikwa a mandate to target specific races, and no witnesses confirmed such a mandate. If version two is accepted, there can be no claim of discrimination.
16

[50] Under cross -examination, Forbay acknowledged that Socikwa referred to comments
about Coloureds and Indians as coming from outside, not as her words. Stander and others
agreed that Socikwa wasn’t expressing personal racist views. The applicants noted that
Socikwa claimed she was there to protect them, although they were unclear about the nature of the threats. The evidence shows that Socikwa's statements were not her own views but
were relayed from others. The applicants criticized Socikwa for not acting against those who
made the original comments, but I agree with UNISA that their complaint was focused solely
on her words and subsequent events. On both versions, there can certainly be no
discrimination or communication of an employment policy or practice that was discriminatory
in nature.
[51] In relation to the complaints regarding the student delivery strike, the evidence
showed that Socikwa's instruction to work during the student strike was meant for all SMPD
management, not just the applicants. The email included a diverse group of managers, and
the applicants confirmed that Socikwa's actions were not racially motivated. The threat to
release names was aimed at all managers , indicating no discrimination or harassment based
on race.

[52] On the events of the strategic session, Socikwa explained the recording aimed to
capture a joyful moment. Doyle admitted that Socikwa's comments referred to all of Print
Production and affected more than just Coloureds. Pretorius conceded that relocating some
applicants did not equate to racial discrimination and t he video showed a positive
atmosphere with laughter, contradict ing any feelings of humiliation. Stander appeared
engaged despite claiming he felt belittled and Forbay confirmed that she enjoyed the activity.
Oberholzer received criticism from Socikwa during a meeting, which suggests he would not false ly support her. It is apparent from the evidence that t he participation in the song and
dance included diverse races and genders, indicating no basis for discrimination or
victimization claims. Thus, the complaint lacked merit.
[53] Socikwa's evidence relating to her instruction to SMPD management to work during
17
the NEHAWU strike was not disputed, making the complaint invalid as it involved managers
of various races and genders. The instruction to work during the strike was reasonable, and
Socikwa was present at work. Thus, the complaint has no merit.
[54] To the extent that Bagus was not an applicant, I agree with UNISA that complaints
about his removal should be ignored. After resigning, Bogus claimed unfair constructive
dismissal, which was not considered automatically unfair. The CCMA dismissed his case,
indicating his resignation was voluntary. In addition, Forbay and Doyle conceded that
Socikwa’s conduct of renewing Bagus’ acting terms on two occasions was not consistent
with such an alleged mandate. The evidence does not support the applicant’s allegat ion that
after his resignation, they suffered victimization .

[55] Regarding the reduction of responsibilities, Forbay acknowledged that the Executive
Directors are responsible for preparing Service Level Agreements (SLAs) but have the
option to delegate this task. She did not permanently take on the proof -reading role but
assisted Bagus at his request, which ended when he left. Ntswane indicated that a delay in
proof reading during a specific year led him to temporarily remove the task from Forbay's
duties to meet deadlines. This decision did not permanently affect her role, and her
performance review did not include proof reading, which did not impact her standing.

[56] Regarding succession planning, Forbay accepted her inclusion in the 2018 plan but
later pointed to the 2019 plan, where her name was missing, as were those of Oberholzer and Pretorius. Ntswane clarified that the succession plan is updated yearly. In 2019, Print
Production had no director, so no discussions about succession occurred, and it was
practical to not plan for a position that might not exist. Forbay admitted it made sense not to
plan for a potential elimination of a role. She also confirmed her name appeared in subsequent plans for 2020, 2021, and 2022.

[57] On the Employment Equity committee, Ntswane explained that the chairperson is
elected, and he was not part of the committee, so could not influence decisions. Forbay conceded that she chose not to seek re- election, making her complaint regarding this issue
18
misguided. Forbay did not have a permanent seat on the quality committee, though she had
attended temporarily when delegated by Bagus. Ntswane explained that RC managers are
typically invited to budget meetings, and both he and Oberholzer were sometimes excluded.
Oberholzer stated he was excluded from all Selection Committee meetings. Maudu
explained that only Nzimande could grant rights on Power BI and that he advised Pretorius to consult Nzimande for access issues. This was not disputed.
[58] Pretorius complaint about being removed from the admin and stores section after his
suspension is meritless. Mr Maudu, Dr Ntswane, and Mr Oberholzer testified that this section
manages contracts and invoices, and all of Pretorius' responsibilities were handed to Oberholzer during his suspension. Upon returning, Pretorius asked Oberholzer to keep
handling the admin and stores, especially related to the Bytes matter, which Pretorius did not want to be involved in. On the claim that he was excluded from Budget Committee meetings ,
Mr Maudu stated he did not control access to Oracle, and Pretorius admitted he did not ask
Maudu or Ntswane about it.

[59] Forbay and Doyle complained that they were not allowed to speak during the
emergency meeting, but Socikwa's request for managers not to speak applied to all
managers, and was, in the circumstances, reasonable. Thus, the complaint lacks merit.

[60] On the fraudster allegation, the evidence shows that Socikwa called out individuals
based on their authorship of an email to the Vice Chancellor, not on their race or Forbay's gender. I agree with UNISA that, w hile Socikwa could have handled the situation with more
restraint, there is no evidence that her actions were directed at Coloureds, Indians or
females. The evidence revealed that Doyle and Pretorius acknowledged the conduct was
unrelated to race or gender, confirming the complaint had no merit r egarding discrimination.
The individuals were targeted solely for the email. Thus, Socikwa's actions did not amount to
victimization, harassment, or discrimination.

[61] Regarding Mailula’s threats , Stander admitted that it was incorrect to claim that
Ntswane did not take action, as he supported the grievance by signing it. Oberholzer also
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backed escalation of the grievance. The evidence show that any lack of action afterward was
due to UNISA’s dysfunctional internal disciplinary processes, which Ntswane also faced. The
claim that Ntswane or Socikwa received a call from Mailula is speculative, and they both
denied it. Socikwa clarified that Mailula’s statement about her needing an observer was
incorrect, and the applicants presented no evidence to counter this. Therefore, there is no basis for the complaint regarding victimization or discrimination.
[62] The applicants alleged that after Doyle, Pretorius, Stander, and Oberholzer received
notices for suspension related to the Bytes contract with UNISA , only Doyle and Pretorius
were suspended and Oberholzer was allowed to contest his suspension . There was no
evidence to suggest preferential treatment based on race in the matter of representations
made by Oberholzer. The decision to suspend Doyle and Pretorius was not based on race, as Stander also would have been suspended if it were. Both challenged their individual roles
in the issues with the Bytes contract but admitted that the suspension was justified and not
racially motivated. Stander’s assumption that his non- suspension was to rationalize the
suspension of others is speculation. Regarding the disciplinary enquiry, Doyle and Pretorius
initially failed to mention that it had been convened but was interrupted by a union
representing them. They later acknowledged this disruption. It is apparent that t he delays in
proceeding with the enquiry were unrelated to race and resulted from transfers within UNISA
and deficiencies in the disciplinary system affecting all employees equally.

[63] Ntswane's delay in finalizing disciplinary proceedings cannot be linked to race, as
both Doyle and Pretorius admitted that the delays were systematic and not racially
motivated. Ntswane’s suspension lasted over thirteen months, similar to a white male named
Kelvin, indicating that race did not influence their suspension experiences. Doyle and
Pretorius acknowledged that they failed to request documents through proper channels and
admitted this was a breach of suspension conditions. They recognized that aski ng a
subordinate for documents was a problem . Therefore, the complaints regarding misconduct
and suspension are unfounded.
[64] Similarly, the claims relating to downgrading are meritless. Oberh olzer admitted to
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downrating Forbay, but denied acting on her race or gender, stating that the final score was
agreed upon after discussion and signed by Forbay, who also chose not to appeal her rating.
He noted that if he intended to discriminate, he wouldn't have increased any of her other
scores. He mentioned that other managers also received lower ratings based on unmet
operational targets, not just Forbay. During cross -examination, Forbay acknowledged that
she agreed with the lower score and the document she presented l acked Oberholzer's
signature. She was offered a chance to withdraw her complaint but ultimately did not.

[65] UNISA explained that the delay in the 2018 performance ratings for Doyle and
Pretorius was due to both being on suspension, which caused logistical issues. Since
Pretorius was supposed to rate Doyle and was suspended, it complicated matters further.
Both employees acknowledged that they were not alone in experiencing delays, as there was a document showing a list of others affected for various reasons, including individuals of
different races. Doyle mentioned knowing a white employee who faced delays due to a
suspension. For the 2019 ratings, Maudu stated that all employees had slight delays in
bonus payments , due to industrial action, but received their ratings on time. Doyle and
Pretorius accepted that their suspensions impacted the timing of both years' ratings and
bonuses, not racial discrimination. There is no merit to their complaints.
[66] The transcript of the SABC interview contradicted the applicants' claims, showing that
no direct accusations were made against them. Socikwa clarified that she appeared in her
personal capacity, not as a representative of the applicants' employer, a point the applicants
accepted. She mentioned that the individuals referred to in connection with fraud claims
were part of the Duja report, none of whom included Forbay. Socikwa stated that she only
highlighted that certain individuals could not explain specific expenditures. Moreover, it was
acknowledged that Socikwa’s actions were unrelated to her role as an employer
representative. Thus, UNISA could not be held responsible for her personal statements.

[67] Forbay’s complaint about not being shortlisted in August 2019 has no valid basis. It is
apparent from the evidence that Forbay was excluded in the first round due to her lack of experience compared to other applicants . Besides, no appointm ent was made in this round.
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Forbay admitted to changing her CV for the second application but did not disclose this in
court. In any event, t here is no evidence to suggest that employment equity influenced the
appointment of Mahloele. Even if it did , favo uring an African fem ale from levels 4 to 6 was
not proven to be unfair . Ms Forbay admitted that she did not know the questions asked to
other candidates and could only guess that they were favorable. In addition, t he appointed
candidate was female, showing no gender discrimination.

[68] The SAHRC investigated racis m at UNISA, and its findings were accepted, though
their accuracy was disputed. UNISA entered into a memorandum of agreement with the
SAHRC to implement outcomes. Forbay acknowledged that she w as aware about this
memorandum. Thus the complaints about UNISA's inaction are unfounded. Besides, this
Court cannot enforce the SAHRC report and must make independent findings on discrimination claims.

[69] UNISA submitted that the HR’s failures and prolonged disciplinary proceedings were
because of its systematic challenges and not due to any agenda to discriminate or victimise
anyone. Doyle accepted that even Ntswane has been a victim of these failures. Considering
the evidence, UNISA’s proposition is reasonable. In any event, to the extent that there is no
merit to each of the complaints pertaining to alleged unfair discrimination, this Court will not
have jurisdiction to deal with these alleged failur es.
Conclusion

[70] The applicants failed to adduce evidence, which was sufficient to raise a credible
possibility that UNISA and its employees subjected them to discrimination, harassment, or victimization based on race and gender . Accordingly, their claim stand to fail.
Costs

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[71] This Court has a wide discretion in awarding costs. The guiding principle is that of
equity and fairness. In casu , I am of the view that the principles of equity and fairness dictate
that there should be no order as to costs.

[72] In the premise, the following order is made:

Order

1. The applicants’ claim is dismissed .
2. There is no order as to costs.

D. Mahosi
Judge of the Labour Court of South Africa

Appearances
For the applicant s: Advocate Franscois Le Roux
Instructed by : Douglas Bennett Inc orporated Attorneys

For the third r espondent: Advocates Yusuf Peer and Neo Ntingane
Instructed by : Pule Maserumule Attorneys