THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case no: D1321/2018
In the matter between:
PSA obo NADASEN GOVENDER Applicant
and
DEPARTMENT OF TRANSPORT – KZN First Respondent
THE OFFICE OF THE PREMIER – KZN Second Respondent
Heard: 7 August 2025
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time
for handing-down is deemed 14h00 on 2 March 2026
JUDGMENT
(1) Reportable: No
(2) Of interest to other Judges: No
Signature Date
2
ALLEN-YAMAN J
Introduction
[1] The applicant sought an order in the following terms,
‘1.1 A declaratory order compelling the First Respondent to approve / finalize the
Applicant’s job evaluation retrospectively for his current post of Deputy
Director (Financial Management).
1.2 The First Respondent is ordered to pay the costs of the application provided
that if any of the other Respondents oppose the Application then it shall be
requested that such Respondent(s) be ordered to pay such costs jointly and
severally with the First Respondent.
1.3 Further and / or alternative relief.’
[2] Despite the ambiguity of the order sought, it was apparent that the applicant
sought an order compelling the first respondent to take the action specified and
that no declaratory relief was in fact required to be granted.
[3] The first respondent, referred to herein as the DOT, opposed the application.
Background
[4] Employed by the DOT in his capacity as Regional Financial Manager, in 2009
the applicant became aware that job evaluations had been conducted for the
posts of Deputy and Assistant Managers in the DOT’s Corporate Services
Department, the result of which had been the upgrading of the posts in question
by one level. Aggrieved by the fact that his own post had not been similarly
evaluated, he drafted a motivation in which he set forth the reasons he believed
that his own post should be subjected to a similar process. The tenor of his
motivation revolved around the increase in scope of the work he had performed
and the responsibilities he had assumed since the post had previously been
evaluated at level 11 in 2004. He concluded that,
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‘Based on the aforementioned motivation and information it is clearly evident that the
role and responsibility of the Regional Finance Managers have changed significantly ie
(more than 20%) since 2004, whereby greater responsibilities have been placed on
these managers (refer to old and new Job Descriptions). As a result it would be fair to
request that the post of the Regional Finance Managers be re-evaluated, as was the
case for other posts that was recently upgraded in the regions.’
[5] He, together with two other similarly placed individuals who likewise desired
that their own posts be upgraded, concluded the submission with the request
that the individuals to whom it had been directed grant their approval for the
evaluation of the Regional Finance Manager post. The request was
unanimously supported by the General Managers in the four regions, and
unanimously recommended by the Senior General Managers for both
Operations and Corporate Services, as well as the Chief Financial Officer. In a
handwritten note appended to her signature, the Senior General Manager
proposed that,
‘… all the special requests for re-evaluation continue according the Public Service Act.
We are supposed to do this every 3 years. Maybe we should do this by levels.’
Although the final signature (having been that of the Head of Transport) was
undated, by virtue of the fact that the pr eceding signature was dated 24
February 2010, his approval must have followed thereafter.
[6] Some three months later, the Regional Managers (including the applicant)
addressed further correspondence to the Senior General Manager: Corporate
Services, On 26 May 2010, with reference to the previously approved
submission, they wrote,
‘In terms of Department of Public Service and Administration, circular no 2 of 2009, the
evaluation and upgrading of levels 9 to 10 and 11 to 12 will not be permissible as of 1
July 2010 as per paragraph 7.12.2. (refer to attached copy). As a result of the
July 2010 as per paragraph 7.12.2. (refer to attached copy). As a result of the
impending deadline (I July 2010) and the delay in having our post from being
evaluated, we are being prejudiced for reasons that do not effect or impact on us.
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In view thereof we are therefore drawing to the attention of the department that should
this process not be finalized and implemented before 30 June 2010, we reserve the
right to declare a dispute to ensure that we are not prejudiced due to the actions and
delays of the department. We also wish to place on record that we have complied and
met all administrative requirements for this evaluation to be undertaken and completed
within the prescribed timeframe.’
[7] Clause 7.12.2 of Circular 2 of 2009 (having been the clause which the applicant
had asserted in his letter would constitute an impediment to the re-evaluation of
the post after 30 June 2010) provided that,
‘The commencing salary for posts of Assistant Director and Deputy Director (or
equivalent salary levels) has been determined on salary levels 9 and 11 respectively.
This will suspend the authority of Executive Authorities to grade Assistant and Deputy
Director jobs at salary ranges 10 and 12.’
[8] From correspondence which emanated from the office of the Deputy Manager:
Management Advisory Services, it appears that by 30 June 2010 the issue of
the re-evaluation of the Regional Finance Manager posts had been presented
to the Departmental Job Evaluation Panel, however a directive had also by then
been issued by the MEC: Transport, Community Safety and Liaison that all Job
Evaluations were to be suspended pending the determination of the
Departmental structure. It was envisaged that a circular would be issued once
the moratorium had been uplifted.
[9] In response to his request for a meeting on 13 September 2011 the applicant
was informed that no point would be served thereby as the moratorium put in
place by the MEC had not been lifted. That which ensued pursuant thereto ,
evinced only by the exchange of correspondence since that date was not
adequately explained by the applicant so as to enable this court cogently to
discern the further timeline of relevant events.
discern the further timeline of relevant events.
[10] Notably, however, with reference to a large number of documents which were
attached to his founding affidavit collectively as annexure ‘E’ the applicant
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made mention of a ‘submission for approval for the job evaluation of posts on
Salary Level 9/10 and 11/12’ on 2 February 2015. The various discrete
documents annexed to the applicant’s founding affidavit as annexure ‘E’ were
undescribed and none of which were readily identifiable as that described by
the applicant. The applicant explained that such ‘submission for approval’ was
in terms of the ‘Implementation of the Amendment to PSCBC Resolution 3 of
2009’ which had been signed on 5 August 2014. Consideration of the
documents included as annexure ‘E’ revealed the inclusion of both Resolution 3
of 2009 and Circular 4 of 2014 (signed on 5 August 2014), however neither the
relevance to nor the effect of the amendment to the Resolution in relation to the
issue of the re-evaluation of applicant’s job was explained.
[11] In 2016 the applicant approached his attorneys, who on 4 May 2016 addressed
correspondence to the DOT on behalf of the applicant and two other
incumbents in the post of Regional Fi nance Manager, in which it was alleged
that the failure on the part of the DOT to evaluate their posts constituted both
an Unfair Labour Practice and was in violation of the Employment Equity Act,
1998. The demand was then issued that a job evaluation be conducted within
7 days of the date of the letter, failing which further legal redress would be
sought. The demand was not complied with and the present application was
initiated some two years later in 2018.
Analysis
[12] In the present application, as with the letter of demand, the applicant sought to
compel the evaluation of his post on the basis that the DOT, having failed to
have done so, had acted both unfairly and in violation of the Employment
Equity Act, 1998 (‘the EEA’). Asserting the legal basis upon which his claim
was founded, his Statement of Claim provided,
‘6.1 Whether the First Respondent had acted unfairly by not approving / finalising
my current position whereas other job evaluations of employees were
my current position whereas other job evaluations of employees were
approved.
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6.2 Whether the First Respondent is in violation of the Employment Equity Act
which prescribes equal pay for work of equal value.’
[13] As to the issue of ‘unfairness’, i t is trite that this court lacks jurisdiction to
adjudicate any dispute alleged to be the commission of an unfair labour
practice, such disputes being required to be arbitrated by either the CCMA or
the appropriate Bargaining Council in terms of s191(5)(a)(iv) of the LRA.
[14] There is no absolute right to equal pay for equal work in terms of the EEA, or
any other legislation. In terms of the EEA a cause of action in relation to
equality of remuneration may be found in s6(4) which section prohibits all
discriminatory practices in relation to terms and conditions of employment,
‘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.’
[15] Not only was such a claim required to have been determined by way of
adjudication in terms of s10(6)(a) of the EEA, but essential to such a cause of
action was the allegation that an act of discrimination on the basis of one of the
grounds listed in s6(1) of the EEA had been perpetrated by the employer,
measured against a comparator in the workplace. Both these aspects were
notably absent from the applicant’s pleaded case, his claim not having been
predicated on the commission of any act of discrimination by the DOT.
[16] In argument the applicant sought to place reliance on the Public Service Act ,
1994 (‘the PSA’) and the Regulations promulgated thereunder , having asserted
a duty on the part of the DOT to have re- evaluated his job. Given that no
reliance had been placed on either the PSA or its Regulations in his Statement
of Claim, upon the conclusion of the hearing the applicant was invited to deliver
of Claim, upon the conclusion of the hearing the applicant was invited to deliver
supplementary heads in which he was afforded an opportunity to amplify the
legal basis for his reliance thereon. In such supplementary heads of argument
this court’s attention was drawn to those portions of the of the Public Service
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Regulations, 2001 which provide that job evaluations are to be used to ensure
parity of remuneration; and that Executing Authorities are obliged to review job
descriptions once every three years.
[17] Whether an obligation to re -evaluate posts in the Public Service exists in terms
of either the PSA or its Regulations was not the basis upon which the applicant
approached his court, and was not an issue which this court was called upon to
decide. It is trite that a litigant cannot seek to make out a case not advanced in
its pleadings and, as such, the applicant’s post fact reliance thereon constituted
an impermissible attempt to do so.
[18] Finally, to the extent that the applicant sought, again in argument, to rely on the
provisions of s158(1)(a)(iii) of the LRA, this section likewise did not avail him.
Whilst s158(1)(a(ii) provides that this court may issue an order directing the
performance of any act which would remedy a wrong, and give effect to the
primary objects of the LRA itself, it relates to the extent of this court’s powers
and not to its jurisdiction. An order granted under s158(1)(a)(iii) may be made,
but only in respect of claims established in relation to disputes over which this
court has been vested in jurisdiction. It is not intended to vest this court with
general jurisdiction over matters which it does not otherwise have jurisdiction.
[19] In conclusion:
- This court does not have jurisdiction to determine the applicant’s claim as an
unfair labour practice;
- The applicant failed to make out a case for this court to conclude that the
DOT had acted in contravention of s6(4) of the EEA;
- No finding may be made in relation to the DOT’s obligations under the Public
Service Act or its Regulations, as this was not the applicant’s pleaded case;
and
- S158(1)(a)(iii) of the LRA may not be relied on in the absence of a claim
established in respect of a dispute over which this court has jurisdiction.
established in respect of a dispute over which this court has jurisdiction.
[20] The application accordingly falls to be dismissed.
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Costs
[21] Given that there is an ongoing employment relationship between the parties,
and given further that the applicant appears bona fide to believe that he has
cause for complaint, this court is not of the opinion that the interests of justice
require that he be ordered to pay the DOT’s costs.
Order
1. The application is dismissed.
2. There is no order as to costs.
________________________
K Allen-Yaman
Judge of the Labour Court of South Africa
Appearances
Applicant:
Ms P Chetty, Derik Jaftha Attorneys
First Respondent:
Mr P Blomkamp SC, instructed by Govindsamy, Ndzingi and Govender Inc