THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
CASE No: JS 249/20
In the matter between:
SIBUSISO BLESSING VEZI Applicant
and
ESKOM HOLDINGS SOC LTD Respondent
Heard: 25 November 2024 & 28 January 2025
Delivered: 23 October 2025
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MAHALELO, AJ
Introduction
[1] This matter relates to a claim of unfair discrimination filed by Mr Sibusiso
Blessing Vezi (“the applicant”) against Eskom Holdings SOC Ltd (“the
respondent”) under section 6(1) of the Employment Equity Act
1 (EEA). The
applicant claims that the respondent unfairly discriminated against him based
on race, after it refused to purchase his residential property following his
1 Act 55 of 1998.
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transfer to Kusile Power Station. In contrast, a white colleague in similar
circumstances had his property purchased.
Factual background
[2] The applicant was employed by the respondent as a Shift Manager at Grootvlei
Power Station. In 2016, he applied for and was appointed to a similar position
at Kusile Power Station.
[3] Following his transfer, the applicant entered into a deed of sale with the
respondent for the purchase of his residential property. However, the
respondent later declined to proceed with the transaction, citing policy
limitations and audit findings.
[4] The applicant’s colleague, Mr Jock Haasbroek (Haasbroek), also transferred to
Kusile Power Station under similar circumstances and had his property
purchased by the respondent. The applicant contends that this differential
treatment constitutes unfair discrimination based on race.
[5] The applicant lodged internal grievances and referred the matter to the CCMA
and subsequently to this Court, seeking declaratory relief, enforcement of the
deed of sale and costs.
[6] The respondent denies any discriminatory conduct and raises a jurisdictional
objection, arguing that the applicant’s claim is contractual in nature as he is
seeking enforcement of a deed of sale, and does not fall within the scope of the
EEA.
[7] The respondent contended that the applicant did not qualify for the property
purchase benefit under its Conditions of Service, as his transfer was voluntary
and not a forced transfer, which is a prerequisite for the benefit.
[8] The respondent acknowledged that Mr Haasbroek’s property was purchased in
error and attributes the discrepancy to timing and oversight, not race, and
confirmed that the decision to purchase Mr Haasbroek’s property was based
solely on policy non-compliance and that race played no role.
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The evidence led
[9] In support of his claim the applicant testified that he was employed by the
respondent on 1 December 2006 as Shift Manager stationed at Grootvlei
Power Station in Mpumalanga. Towards the end of 2016, the respondent
advertised a Shift Manager position at Kusile Power Station and he together
with his colleague Mr Haasbroe k applied. They were both successful and were
appointed as Shift Managers at Kusile Power Station. He made an application
to the respondent to have his immovable property bought by the respondent.
He entered into a deed of sale agreement with the respondent. When the
respondent delayed purchasing his property he made numerous follow ups but
was directed to the procurement department. He lodged a grievance and was
informed that the procurement department had implemented some changes
following audit findings and thus could no longer approve certain transactions
such as purchasing residential properties , the basis for which was recorded as
the applicant not meeting the requirements of paragraph 7.1.5H of the
Conditions of Service. When he enquired why Mr Haasbroe k’s property was
purchased by the respondent despite him being in the same position with him,
he was told that Mr Haasbrook’s application was approved in error at the local
power station in contravention of the Conditions of Service because it was
never escalated or flagged.
[10] During cross examination the applicant could not formulate any reasonable
basis for alleging that the respondent’s decision not to purchase his property
was discrimination based on his race. The applicant tendered speculation why
he thought Mr Haasbroe k’s application was finalized without difficulty because
he is white. He was asked pointedly in cross examination, and he conceded
that he has no evidence other than his assumptions, that Mr Haasbroe k was
favoured because he is white. Further, during cros s examination the applicant
favoured because he is white. Further, during cros s examination the applicant
speculated that Mr Haasbroe k’s name was deliberately omitted from the list of
queried applications. He however could not substantiate this speculation with
any evidence about who deliberately omitted Mr Haasbroe k’s name and for
what reason. The applicant could not dispute that at the time when the query
was raised Mr Haasbroe k’s application was already processed and would
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therefore not have formed part of such a query. He also did not dispute Ms
Funston’s explanation that the difference in the way that his and Mr.
Hasbroek's applications were handled was their timing, had to the applicant ’s
application been processed together with Haasbroe k’s before the query about
compliance was made it is likely that his application also would have been
granted erroneously.
[11] The respondent relied on the evidence of Ms Evrille Funston (Ms Funston), who
is a manager in the respondent's Rewards and Benefits Center of Excellence.
She has worked in Rewards and Benefits since 2016, but has been employed
at the respondent for 30 years. She is responsible for managing and updating
the respondent’s Conditions of Service and associated policies and procedures.
[12] She stated that the respondent’s decision not to buy the applicant’s property
was not based on his race. The decision was solely due to the fact that the
applicant did not qualify for the benefit under the respondent’s Conditions of
Service. She testified that the respondent's Conditions of Service recogni se
three types of transfers, which include, among others, when an employee is
transferred by the respondent 's decision (forced transfer) and when an
employee is transferred because they responded to an advertisement (job
application transfer). According to paragraph 7.1.5H of the Conditions of
Service, the respondent only purchased employees' properties when they are
transferred through a compulsory transfer.
[13] When the applicant and Mr Haa sbroek applied for the purchase of their
properties, Deeds of Sale Agreements were concluded with them. During or
about September 2018, the office of the respondent 's General Executive
presented Ms Funston with the names of five employees, including the
applicant, who had applied for the respondent to purchase their properties. Ms
Funston was asked to confirm whether the conditions of service were complied
Funston was asked to confirm whether the conditions of service were complied
with in the five applications. Mr Haa sbroek's name was not part of the names
that were presented in the enquiry , as his application and the purchase had
been finalised. On 14 September 2018, Miss Funston provided feedback to the
General Executive’s office regarding each of the five employees. Insofar as the
applicant is concerned, she explained that he does not meet the requirements
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for his property to be purchased because his transfer was not a compulsory
transfer. His transfer fell outside the scope of paragraph 7.1. 5H of the
Conditions of Service. Ms Funston stated that the five employees who were the
subject of the inquiry are of different races , and she supported the purchase of
the properties of two black employees on the list , namely Mr Dlamini and Mr
Rughoonan, because they met the requirements of the Conditions of Service.
Amongst them, one other person of colour’s application, i.e Gobingca, was not
supported because no supporting documentation was provided.
[14] In October 2019, the applicant instituted a grievance process regarding the
respondent’s failure to purchase his property. The basis for not purchasing the
applicant's property was recorded as the applicant not meeting the
requirements of paragraph 7. 1.5H of the C onditions of S ervice. The
respondent's decision was upheld on this basis. The applicant's transfer letter
stated expressly what benefits he was entitled to upon his transfer and
relocation. The benefits did not include the purchase of his property. The
applicant was entitled to a once- off payment for the removal of his furniture
from his old to his new house, an establishment allowance, and a subsidy on
his rental for six months. Mr Haasbroek's letter reflected that he was afforded
the same benefits as the applicant upon his appointment. There was no
differentiation or discrimination in the respondent’s transfer policy and practice
based on either employee's race. Neither the applicant nor Mr Haasbroek was
entitled to have their properties purchased, and Mr Haasbroe k’s application
proceeded to finality because it was dealt with at the local level and was never
flagged or escalated.
Legal Principles
[15] Section 6 (1) and (4) of the EEA read:
‘(1) No person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one or more
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.
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…
(4) A difference in terms and conditions of employment between
employees of the same employer performing the same or substantially
the same work or work of equal value that is directly or indirectly
based on any one or more of the grounds listed in subsection (1), is
unfair discrimination.’
[16] The burden of proof required in a case brought in terms of section 6 of the EEA
is set out in section 11(1):
‘(1) If unfair discrimination is alleged on a ground listed in s ection 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.’
[17] The term ‘discrimination’ is defined as follows in an International Labour
Organization Convention2:
‘1. For the purpose of this Convention the term discrimination includes:
(a) Any distinction, exclusion or preference made on the basis of
race, color, sex, religion, political opinion, national extraction,
or social origin which has the effect of nullifying, or impairing
equality of opportunity or treatment in employment or
occupation…’
[18] The Constitutional Court in Prinsloo v Van Der Linde and Another3 explained
that discrimination principally means treating people or categories of people
differently in a way that impairs their fundamental dignity as human beings.
[19 The Court further explained that:
‘The proscribed activity is not stated to be “unfair differentiation” but is stated
to be “unfair discrimination”. Given the history of this country we are of the
2 Article 1 of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
3 1997 (6) BCLR 759 (CC) at para 31.
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view that “discrimination” has acquired a particular pejorative meaning
relating to the unequal treatment of people based on attributes and
characteristics attaching to them…’
[20] In Leonard Dingler Employee Representative Council v Leonard Dingler (Pty)
Ltd & others4, discrimination based on race is defined as follows:
‘Direct race discrimination occurs where a person is treated differently
because of their race or on the basis of some characteristic specific to
members of that race. It is incorrect to equate discrimination with actual
prejudice. Discrimination occurs when people are not treated as individuals.
To discriminate is to assign to them characteristics which are generali zed
assumptions about groups of people… .
… Whether the discrimination is unfair is a separate enquiry…’
[21] The Court in National Union of Metalworkers of SA & others v Gabriels (Pty)
Ltd5, with approval, quoted the following test from Harksen v Lane NO and
others6 (Harksen), where the Constitutional Court established a two- pronged
test for determining whether differentiation between people or categories of
people amounted to unfair discrimination:
‘(i) Firstly, does the differentiation amount to 'discrimination'? If it is on a
specified ground, then discrimination will have been established. If it is
not on a specified ground, then whether or not there is discrimination
will depend upon whether, objectively, the ground is based on
attributes and characteristics which have the potential to impair the
fundamental human dignity of persons as human beings or to affect
them adversely in a comparably serious manner.
(ii) If the differentiation amounts to 'discrimination', does it amount to
'unfair discrimination'? If it has been found to have been on a specified
ground, then unfairness will be presumed. If on an unspecified ground,
unfairness will have to be established by the complainant. The test of
4 (1998) 19 ILJ 285 (LC) at 289E - F. See also Department of Correctional Services & Another v
Police & Prisons Civil Rights Union & Others (2011) ILJ 2629 (LAC).
5 (2002) 23 ILJ 2088 (LC) at para 9.
6 1998 (1) SA 300 (CC) at para 54.
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unfairness focuses primarily on the impact of the discrimination on the
complainant and others in his or her situation.’
[22] The court in Harsken further stated that:
‘… whether there has been differentiation on a specified ground or an
unspecified ground must be answered objectively . … If in either case the
enquiry leads to a negative conclusion then s 8(2) has not been breached and
the question falls away. If the answer is in the affirmative, however, then it is
necessary to proceed to the second stage of the analysis and determine
whether the discrimination is “unfair”.’
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Analysis and conclusion
[23] The question in this matter is whether the respondent, by failing to purchase the
applicant’s immovable property and in buying that of Mr Haasbroe k upon both
employees taking up voluntary transfers after the parties signed deeds of sale
agreements, constituted discrimination against the applicant based on his race.
Put differently, do the factors relied upon by the applicant establish any
discrimination? In my view, the y do not . The evidence presented by both
parties does not show that the case that the a pplicant raised as the basis for
comparison justifies the conclusion that the respondent refused to purchase the
applicant’s immovable property and purchased that of Mr Haasbroe k because
the differentiation was based on a prohibited ground of discrimination.
[24] It is not enough for the a pplicant to merely allege that Mr Haasbroek’s
immovable property was bought by the respondent because of his race (white).
Something more is required to prove discrimination. The unequal treatment
must be based on attributes and characteristics attaching to a person before it
can fall within the meaning of ‘ discrimination’. The a pplicant did not establish
discrimination on the grounds of race. The respondent proved that the
applicant’s immovable property was not bought because of its policy on
Conditions of Service . The applicant was not entitled to have his property
Conditions of Service . The applicant was not entitled to have his property
bought by the respondent because he took up voluntary transfer. On a
conspectus of the evidence before this court, the decision not to purchase
7 Ibid at para 48.
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applicant’s property was based on the common cause fact that the applicant did
not qualify for this benefit under the respondents Conditions of Service. The
applicant’s allegation that the respondent did not purchase his property
because he is black , on the applicant's own version, is premised on unmerited
presumptions and assumptions. Having heard the respondent's explanation for
its decision, the applicant conceded that he cannot dispute any of it.There is no
evidence or any suggestion that the respondent’s policy is discriminatory
because the respondent has honoured the purchase of two of its employees
properties who were compliant and who were people of colour , just like the
applicant.
[25] In conclusion, t he applicant has failed to make the minimum sufficient
allegations to sustain a claim for discrimination based on race within the
meaning of section 6(1) of the EEA.
Costs
[26] As to costs, considerations of fairness and the law are best served by making
no order as to costs.
[27] In the result, I make the following order:
Order
1. The applicant’s claim is dismissed.
2. There is no order as to costs
______________________
MB Mahalelo
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: G. Leshaba
Instructed by: Mitti Attorneys
For the Respondent: Adv FJ. Nalane SC; Adv F Sangoni
Instructed by: Ramatshila-Mugeri Attorneys Inc.