Summary of Judgment

1. Introduction

This matter was heard in the Labour Court of South Africa, Durban, and concerned two interlocutory procedural issues arising at the pleadings stage in an employment discrimination dispute. The proceedings comprised, first, an application for condonation for the late delivery of the plaintiffs’ Statement of Claim (SOC) and, second, the determination of an exception raised by the defendant against that SOC.

The parties were Ignatia Nonkululeko Ntombela, Linda Meyer, Phumla Cele, Hein van der Westhuizen, and Mavis Ntshangase as the plaintiffs/applicants, and SARS as the defendant/respondent. The plaintiffs alleged unfair discrimination in remuneration and grading, and SARS responded by excepting to the SOC on the basis that it failed to disclose a cause of action.

Procedurally, the SOC was delivered out of time, and the plaintiffs sought condonation. That condonation application was unopposed. The exception, however, was opposed by the plaintiffs. The general subject-matter of the dispute was an equal pay / equal value type complaint framed as unfair discrimination, specifically alleging that the plaintiffs were paid less than comparator employees while performing the same or substantially the same work, or work of equal value.

2. Material Facts

It was common cause, or at least not disputed in the judgment, that the plaintiffs’ Statement of Claim was delivered late and that an application for condonation was brought. The court recorded that the condonation application was not opposed, and it identified no reason why condonation should not be granted.

The plaintiffs pleaded that they were paid less than other fellow employees, despite allegedly being engaged in the same or substantially the same work or work of equal value. They further pleaded that SARS’s continued maintenance of disparities in grading and salary between them and identified comparator employees constituted unfair discrimination on an arbitrary ground, with a negative impact on their dignity.

The pleaded defect relied upon by SARS for purposes of the exception was that, although the plaintiffs alleged unfair discrimination and used the phrase “arbitrary ground,” the SOC did not identify any listed or unlisted ground of discrimination, and did not specify what the alleged arbitrary ground was. The court’s determination of the exception proceeded on an assessment of the SOC “in toto” and whether, on its face, the pleading contained the necessary allegations to sustain a discrimination cause of action.

3. Legal Issues

The central legal question was whether the plaintiffs’ SOC disclosed a cause of action for unfair discrimination in circumstances where it alleged differential pay and grading and asserted discrimination on an arbitrary ground, but did not identify the specific ground of discrimination relied upon.

The dispute before the court was primarily one of law and pleading sufficiency, namely the legal adequacy of the pleaded allegations to found a discrimination claim, rather than a factual enquiry into whether discrimination occurred. It also involved the application of legal requirements for pleading discrimination to the contents of the SOC as drafted.

A further issue, although not contested in substance, concerned whether condonation should be granted for the late delivery of the SOC given that the application was unopposed.

4. Court’s Reasoning

On the condonation issue, the court noted that the application was unopposed and stated that there was no reason why condonation should not be granted. The reasoning on this aspect was concise and turned on the absence of opposition and the lack of any identified impediment to granting the indulgence.

On the exception, the court approached the matter by reading the SOC as a whole and assessing whether the plaintiffs had pleaded what is necessary to support an allegation of unfair discrimination. The court held that, on such a reading, the SOC did not identify the alleged arbitrary ground relied upon. The court emphasised that for a defendant to be placed in a position to properly defend a discrimination claim, the pleading must set out the ground of discrimination underpinning the allegation.

In applying authority, the court relied on Naidoo and Others v Parliament of the Republic of South Africa (2020) 41 ILJ 1931 (LAC) for the proposition that, to establish discrimination based on an arbitrary ground, the arbitrary ground must be identified, and that merely alleging arbitrariness is insufficient. The court distilled from this that the plaintiffs were required to plead a ground based on attributes and characteristics with the potential to impair dignity or affect them in a comparably serious manner.

The court further reasoned that such a ground must be pleaded in a manner that “refers back” to the specified grounds listed in section 6(1) of the Employment Equity Act 55 of 1998. On the court’s analysis, the plaintiffs had not done so. As a consequence, the exception had to be upheld because the pleading, as framed, lacked a necessary element for the pleaded claim and therefore did not disclose a sustainable cause of action in discrimination.

On costs, the court applied the Labour Court’s general practice that costs do not automatically follow the result, and it found no circumstances justifying a departure from that practice.

5. Outcome and Relief

The court granted condonation for the late delivery of the plaintiffs’ Statement of Claim.

The court upheld SARS’s exception, set aside the plaintiffs’ SOC, and granted the plaintiffs leave to amend by delivering an amended pleading within 10 days from the granting of the order.

No order was made as to costs.

Cases Cited

Naidoo and Others v Parliament of the Republic of South Africa (2020) 41 ILJ 1931 (LAC)

Legislation Cited

Employment Equity Act 55 of 1998, section 6(1)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Labour Court held that, while condonation for the late filing of the Statement of Claim should be granted because the application was unopposed and there was no reason not to grant it, the plaintiffs’ Statement of Claim was excipiable. The pleading failed to disclose a cause of action for unfair discrimination because it did not identify any listed or unlisted ground of discrimination and did not specify the arbitrary ground relied upon. The exception was therefore upheld, the Statement of Claim was set aside, and the plaintiffs were afforded an opportunity to amend within 10 days. The court made no costs order.

LEGAL PRINCIPLES

A party pleading unfair discrimination must identify and plead the ground of discrimination relied upon. An allegation that conduct is discriminatory on an “arbitrary ground” is insufficient if the pleading does not specify what that ground is.

To sustain an unlisted ground discrimination claim, the pleaded ground must be based on attributes and characteristics that have the potential to impair dignity or to affect the complainant in a comparably serious manner, and it must be articulated in a way that is coherent with the framework of section 6(1) of the Employment Equity Act 55 of 1998.

In Labour Court practice, costs do not automatically follow the result, and a party seeking a costs order must show circumstances justifying a departure from that approach.