THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
[SITTING AS THE ‘EQUALITY’ COURT]
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: EC 10 / 2025
In the matter between:
SELMA BEHARI Applicant
and
ESKOM HOLDINGS SOC LIMITED Respondent
Summary: Jurisdiction - Matter Finally Determined - Settlement
Agreement Concluded - Employment Equity Act - Equality
Court - No Jurisdiction.
Coram: Wille, J
Heard: 18 March 2026
Delivered: 20 April 2026
_________________________________________________________________________
JUDGMENT
WILLE, J:
INTRODUCTION
[1] This vigorously opposed application was to determine the limited issue of jurisdiction
regarding the applicant’s complaints. In essence, the applicant contends that she was
unfairly discriminated against on two grounds, namely: (a) because she was demoted in her
employment space on the grounds of her mental disability, and (b) that the respondent used
the Employment Equity Act (EEA) as a tool to systematically discriminate against her.1
[2] Firstly, the applicant seeks specific relief , namely, to nullify and set aside a
settlement agreement signed in full and final settlement of this matter when it was presented
and determined before the CCMA.2
[3] Also, the applicant seeks reinstatement to her previous ‘work -grade’ and
reinstatement of her salary (linked to this grade) , as well as reimbursement for all other
financial hardships she suffered due to her demotion . The applicant also filed complaints
with the Human Rights Commission and the Commission for Gender Equality. The Human
Rights Commission dismissed her complaint on the basis that her complaint was a labour -
related employment matter . Similarly, the Commission for Gender Equality refused to
entertain the applicant's complaint. Now the applicant seeks relief under the wide umbrella
of the Promotion of Equality and Prevention of Unfair Discrimination Act.3
1 The Employment Equity Act, 55 of 1988 (“EEA’).
2 Case Number WECT 9217 - 20.
3 Promotion of Equality and Prevention of Unfair Discrimination Act,4 of 2000 (“PEPUD”)
[4] The applicant seeks judicial review (or indeed an appeal), in connection with awards
that did not go her way at the CCMA. The applicant also seeks an order from this court to
set aside, as ‘ pro non scripto’ and of no force and effect , the negotiated settlement
agreement she signed in connection with certain CCMA processes. Notably, the applicant
did not pilot her case in the CCMA under the umbrella of unfair discrimination.4
[5] In addition, the applicant appears to contend that this court is obliged to interfere with
the decisions by the Human Rights Commission and the Commission for Gender Equality
not to entertain her complaints.5
THE LITIGATION HISTORY
THE REFERRAL TO THE CCMA (THE ‘FIRST’ COMPLAINT)
[6] In the referral complaint, the applicant describes the party with whom she is in
dispute as her employer. She details her complaint as an ‘ Unfair Labour Practice’ and not
as one of unfair discrimination. In the complaint referral form, the applicant records that she
indeed signed and accepted her demotion and the salary associated with it.6
[7] She says in her complaint that the respondent did not make sufficient attempts to
accommodate her because of her mental condition. Also, she says the environment she
worked in became toxic and that she was micromanaged . In addition, the applicant says
she was not happy with how her disciplinary hearing was conducted or with the final written
warning issued to her. All these complaints are labour -related employment complaints.
What is of significance is that after the employment-related investigations and processes
had been completed (as far as the respondent was concerned), the respondent agreed to
and signed a letter of acceptance regarding her transfer and her ‘demotion’ in connection
with her salary ranking and scale.7
THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION (HRC)
4 As set out on page 3 of the applicant’s “Referral Form” to the CCMA.
5 The “HMR” and the “CGE”.
6 In the annexure to page 3 of the Referral Form.
5 The “HMR” and the “CGE”.
6 In the annexure to page 3 of the Referral Form.
7 This was styled as a ‘Transfer’ and signed by the applicant on 21 June 2021.
[8] The applicant also filed a complaint with the HRC. In her complaint form, she raises
issues regarding her alleged fitness for duty and the respondent's alleged in vestigation into
her incapacity.8
[9] Further, she raises complaints connected to her disciplinary hearing, her demotion
and the reduction of her salary. The applicant conceded in this complaint that she suffers
from a borderline personality disorder.9
[10] The applicant avers that she was wrongfully subjected to a n incapacity investigation,
a performance enhancement investigation and a disciplinary hearing concurrently.10
[11] The SAHRC assessed the complaint by the applicant and determined the following:
‘…Please note that the Comm ission does not have jurisdiction over human rights violations (sic) and
discrimination in the workplace. This falls within the jurisdiction of the CCMA. You state that you lost
your CCMA case, but the Commission is not able to overturn a decision of the CCMA….’11
THE COMMISSION FOR GENDER EQUALITY (CGE)
[12] The applicant also filed a complaint with the CGE. The CGE's business is to
exercise a broad mandate to promote respect for gender equality and protection. Also, the
development and attainment of gender equality.12
[13] Furthermore, as I understand it, the CGE has the power to monitor, investigate,
research, lobby, advise and report on issues concerning gender equality and is empowered
to convene public hearings and litigate against the public and private sector entities where
appropriate and necessary. The mandate and jurisdictional ‘area’ of the CGE is accordingly
limited in scope.13
[14] In a recent letter from the CGE, they state the following:
8 These complaints go to the process followed by the respondent.
9 She was diagnosed in 2014.
10 All these processes are labour-related-employment complaints.
11 With this, I agree.
12 This mandate is specific and limited in scope.
13 Section 12 (4) (b), (c) of Gender Equality Act No, 39 of 1996.
‘…Legal Management has advised that, in terms of the Complaints Handling Procedures Manual
applicable to investigations, the report was submitted to the Legal Committee and was subsequently
referred to Plenary. Following the recommendation of Plenary, the Western Cape Legal Department
will revert in due course…’14
THE ARBITRATION AWARD (THE ‘SECOND’ COMPLAINT)
[15] A major portion of the applicant’s complaint concerned her grievance that she was
not short -listed for a position for which she had applied and had previously temporarily
acted. Also, the applicant alleged that her toxic work environment caused her health to
decline. Further, her complaint was that she was the victim of a crime and that , because of
this, her health had deteriorated significantly.15
[16] It was common cause that the applicant was partially incapacitated. This was a
permanent condition. The applicant did not dispute her medical condition or its effect on her
work performance. She also conceded that her bipolar disorder rendered her unable to
cope at times. In summary , the CCMA determined that the applicant was not subjected to
any unfair labour practice.16
THE ARBITRATION AWARD (THE ‘THIRD’ COMPLAINT)
[17] The applicant filed a condonation application in relation to an alleged unfair labour
practice complaint against the respondent. The basis of this complaint was that the
applicant alleged the respondent's ‘incapacity investigation’ was flawed. Also, she averred
that the respondent lacked empathy and sympathy in respect of her mental health. The
condonation application was made three years and eleven months late.17
[18] The condonation ruling highlighted that the applicant's application was 1438 days
late. In the final analysis, the ruling was that the applicant failed to provide justifiable
reasons for the condonation application to be successful. Put another way, because of the
14 The complaint was lodged nearly two years ago.
14 The complaint was lodged nearly two years ago.
15 The crime perpetrated on her did not occur at work and had nothing to do with her employment.
16 In accordance with the Award dated 23 September 2022.
17 There was an insufficient explanation for this inordinate delay.
insufficient explanation tendered for the delay, coupled with what appeared to be limited
prospects of success, the applicant failed to demonstrate good cause, and her application
for condonation was refused.18
CONSIDERATION
[19] The applicant’s case involves alleged unfair discrimination against her. The issue in
this case is whether any protection under this targeted legislation is triggered in these
circumstances and thus engages this court’s jurisdiction.19
[20] Put another way, the issue is whether this court's jurisdiction is engaged in cases
where the complaints are, in essence, about alleged violation s of rights in the context of a n
employer-employee relationship and in circumstances where the applicant has enjoyed
several bites at the proverbial cherry.20
[21] The applicant’s complaints all stem from interactions with her employer . The
applicant’s complaints have their unfortunate genesis in the allegations that she suffered a
horrific crime perpetrated against her, which led to a deterioration in her mental well -being
and health.21
[22] The applicant avers that she did not voluntarily settle her complaints and grievances
with the respondent. The applicant experienced frequent absences from work, which
adversely affected her performance. She was placed on various assistance programmes
and eventually subjected to an incapacity investigation. I mention this because she was
represented during this time by her trade union.22
18 Vide para 26 of the Condonation Ruling.
19 In terms of Act,4 of 2000 (“PEPUD”).
20 The matter was previously dealt with in a number of other forums.
21 This incident had nothing to do with her employment with the respondent.
22 This was not materially challenged.
[23] This investigation concluded that the applicant suffered from a long -term psychiatric
condition, partially limiting her ability to perform her essential employment functions. The
respondent made concerted efforts to place her in a suitable position nationally.23
[24] A mutual agreement was reached for the applicant's redeployment, and it is this
mutual decision and redeployment (by agreement) that the applicant has challenged in
various forums, culminating in a hearing before this court. The word jurisdiction has several
meanings. It denotes the power or competence of a particular court to hear and determine
an issue brought before it. It must be so that the inherent jurisdiction of the courts does not
enable them to grant a remedy in a matter regulated by legislation where the intention of the
legislature was that such a remedy should not be available. Thus, I must be mindful of our
jurisprudence determining the jurisdiction of this specific court.24
[25] The provisions of the targeted legislation that may apply are th ose dealing with
discrimination (as defined), read together with certain constitutionally enshrined rights of
general application. Discrimination is broadly defined as:
‘…any act or omission, including a policy, law, rule, practice, condition or situation which directly or
indirectly; (a) imposes burdens, obligat ions or disadvantages on; or (b) withholds benefits,
opportunities or advantages from any person on one or more of the prohibited grounds…’ 25
[26] This legislation must be purposively interpreted and read in a constitutional context.
It seeks to give effect to the letter and spirit of all our constitutionally enshrined rights. These
provide for every person's equal enjoyment of all rights and for the prohibition of unfair
discrimination against any person. Further, these rights mu st be respected, protected, and
promoted.26
[27] Most significantly, the applicant do es not allege that the prevailing legislation is
[27] Most significantly, the applicant do es not allege that the prevailing legislation is
discriminatory. This is important because a claim under the umbrella of equality should not
23 A suitable T10 position could not be found for the applicant.
24 Phillips v National Director of Public Prosecutions 2006 (1) SA 505 (CC) paras 47, 48 and 52.
25 Section 1 (viii) of Act 4 of 2000.
26 Sections 2 (b) (i) and 6 of Act 4 of 2000 read with section 7 (2) of the Constitution of the Republic of South
Africa.
be instituted where an effective remedy exists at common law . Elaborating on th is theme,
the applicant unnecessarily delayed the initiation of condonation proceedings regarding her
employer-employee-related dispute. I say this because no factual basis or foundation is set
out in the applicant ’s papers for this court to now exercise its discretion concerning th ese
inordinate delays to the benefit of the applicant in these proceedings. However, if no
explanation is given for these delays, it must, as a matter of pure logic, count heavily against
the applicant.27
[28] The respondent seeks refuge in the complex legislation governing employees' rights.
Further, they say that the applicant's complaints are more (and were more) than adequately
protected by our existing legislation dealing with employer-employee matters. They also say
that all these employer-employee procedures were properly followed.28
[29] Thus, they say it matters not how this application has been dressed up, as this does
not change the initial and on ly cause of action. As a matter of law, I must agree with the
respondent’s arguments in this connection. I also say this because it is trite that this species
of equality relief may not be claimed where a clear and compelling alternative remedy was
readily available to the applicant . I say this because the relief sought is in the form of a
declaratory order. This is because of the possible consequences that may flow should the
relief be granted. An application for a declarator requires a two -stage approach. The court
must satisfy itself that an applicant is a person who has an existing, future, or contingent
right or obligation. Then, if so, the court must decide whether the case is appropriate for
exercising the discretion conferred upon it. In this context , our apex court has held that a
hypothetical interest is an interest that is expressly claimed but is neither real nor genuine.29
[30] A declaratory order is a discretionary remedy , and the discretion to grant a
declaratory order should not be exercised where the question raised is academic, abstract,
or hypothetical. Put another way, w here the questions raised in a matter are wholly
27 Hoexter and Penfold (Eds) Administrative Law in South Africa, (Third Edition, 2021) at page 735.
28 With this, I agree.
29 Giant Concerts CC v Rinaldo Investments (Pty) Ltd & others 2013 (3) BCLR 251 (CC) at para 51.
academic, a court should decline to grant a declaratory order . Indeed, there are rare cases
where our courts have entertained applications, the effect of which may be moot. In these
applications, the interests of justice have demanded that the matter be heard,
notwithstanding that it is moot. Some of the factors that may determine t he interests of
justice include the following : (a) whether any order a court may make will have some
practical effect either on the parties or on others; (b) the nature and extent of the practical
effect that any possible order might have either on the par ties or on others ; (c) the
importance of the issue; (d) the complexity of the issue; (e) the fullness or otherwise of the
arguments advanced , and (f) if the decision would resolve disputes between different
courts.30
[31] I need more clarity on how a declarator would advance the matt er or have any
practical effect on the past litigation. I say this primarily because the academic nature of the
relief sought by the declarator becomes apparent, considering the following: (a) any claim by
the applicant against her employer has been finally determined, and (b) the applicant, by her
own admission, is not in a sufficient condition to resume her previous work -related
activities.31
[32] The common law and our existing legislation are powerful vindications of all the
applicant’s rights. This must be so because our constitution is primary, while its influence is
indirect, perceived through its effects on legislation and the common law. Thus, in this case,
the applicant’s difficulty is that our labour laws are sufficiently protective of all her employer-
employee related rights, and it would not be just and equitable (for the applicant’s failures) to
support an argument for the relief she seeks in the circumstances.32
[33] This is so because o ur courts have repeatedly confirmed that constitutional
interference (and constitutional relief) would be awarded only where existing law, including
interference (and constitutional relief) would be awarded only where existing law, including
30 This matter has already been fully ventilated in various forums.
31 The application seems to me to be moot.
32 Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and Others 2023 (4) SA 325 (CC)
at para 233.
the development of the common law, is inadequate to vindicate a violation of, or a threat to,
a citizen's rights. It must be so that constitutional relief does not constitute an alternative
means of appropriate relief where a claim in employment law could have more than
adequately compensate d the applicant and where that relief itself is a n extraordinarily
effective and powerful vindication of any constitutional rights that may be in question. Put
another way, where a n existing legal remedy exists, a claimant must first have recourse to
that remedy. I say this because, in most cases, existing law is broad enough to provide all
the appropriate remedies for a constitutional right s violation. An award for c onstitutional
remedy is not available where there is no evidence to prove that such a remedy would serve
as a significant deterrent against an individual or systemic repetition of the infringement in
question.33
[34] Most significantly, i n support of the applicant's declaratory relief, she contends that
she was violated in an employer -employee relationship. There is nothing systemic or
discriminatory about h er alleged claims. Also, her claims do not morph into facts . The
respondents deny these allegations. The allegations made by the applicant are general and
lack specificity.34
[35] I say this because the papers before me needed to contain the facts supporting the
conclusions the applicant desire s the court to draw . Thus, it is difficult, if not impossible, to
discern (let alone decide) from the material before me how the actions or omissions by the
respondent amounted to discrimination and, thus, a trammelling of the applicant’s
constitutional rights. There was no evidence in the papers that even remotely demonstrated
that there was any kind of systemic discrimination against the applicant.35
[36] I must conduct an enquiry in the prescribed manner and determine whether unfair
discrimination, hate speech, or harassment has occurred, as alleged. Further, I must
discrimination, hate speech, or harassment has occurred, as alleged. Further, I must
33 This allegation is not borne out by the papers and is in any event disputed.
34 The crux of the applicant’s case is challenging to understand.
35 These allegations were simply absent the papers.
remember that the court's character is that the proceedings are meant to be expeditious.
The remedies are to be corrective, restorative, and deterrent.36
[37] In addition, I must consider and be mindful of the existence of systemic
discrimination and inequalities concerning race, gender, and disability in all spheres of life
and the need to take measures to eliminate them from our society. These are all issues I
must conside r when determining j urisdiction. Also, I must be mindful of this targeted
legislation's objects and guiding principles. Finally, I must adopt an approach focusing on
substance rather than form.37
[38] In addition, a bsent a direct challenge to th is legislation, I must assume that this
targeted legislation is not constitutionally inconsistent and claims must be decided within its
margins. Thus, it is not legally permissible to treat this targeted legislation and the
provisions in our constitution as interchangeable. They are not.38
[39] For clarity, the relief claimed in the various parts of the application is not discrete, as
it rests on a finding of alleged unfair discrimination concerning the same conduct . Most
importantly, the applicant would be unlikely to prove a likelihood of recurrence of the alleg ed
unfair discrimination to warrant the relief contended for. If the applicant cannot sustain a
case against the respondent and seeks no consequential relief (other than through a judicial
review or an appeal), it would be difficult to discern how an order from this court could assist
the applicant’s cause. I say this because this court is not obliged to declare the
respondent’s conduct (or lack thereof) constitutionally invalid (even if it was), as it may be
appropriate and necessary to dispose of the question using subsidiary law.39
36 Section 21 (1) and section 4 (1) of Act, 4 of 2000.
37 I must interpret the provisions of this legislation to give effect to the Constitution of the Republic of South
Africa, 1996.
Africa, 1996.
38 September v Subramoney [2019] ZAEQC 4: [2019] 4 All SA 927 (WCC).
39 J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514 (CC) at
para 15.
[40] In this case, no parallel proceedings are pending in the high court. When the court
determines a matter following the equality legislation (with no parallel proceedings pending),
it cannot also sit as an ordinary high court.40
[41] The applicant still needs to establish an evidential basis for her averments of
discrimination. It must be so that allegations that lack specificity do not equate to
establishing a prima facie case against the respondent. Thus, the alleged acts of unfair
discrimination do not confer jurisdiction on this court.41
[42] Cases of this nature should n ot attract any orders regarding costs. Also, the matter
was determined on the limited issue of jurisdiction. Emphasis must be placed on this
application's constitutional character, as these proceedings essentially sought to vindicate
fundamental rights i n connection with the respondent's alleged unlawful actions. The
following legal principles, found in our jurisprudence, apply to matters that truly have
constitutional dimensions. The principles dictate whether a matter has a constitutional
dimension when there is a genuine, non -frivolous challenge to the constitutionality of a law
or state conduct.42
[43] If so, it is appropriate that the state bear the costs if the challenge is good, but if not,
the losing non-state litigant should be shielded from the costs and consequences of failure.43
[44] Concerning costs, t he court always retain s the discretion to make an order that
seems just and equitable, considering the position of the party against whom any such cost
order is levied. Several factors must be considered when a cost award is issued in such
circumstances. However, I am not satisfied that any cost order should be granted . In my
view, a contextual approach must be adopted , and I did not regard the applicant’s approach
to this court as frivolous.44
40 Manong and Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape and Another 2009 (6)
SA 589 (SCA).
SA 589 (SCA).
41 As currently formulated with specificity.
42 I cannot say that this challenge was frivolous.
43 Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC).
44 A holistic approach must be adopted with a view to assess the different positions adopted by the parties.
ORDER
[45] The following order is issued:
1. The application is dismissed.
2. There shall be no order as to costs.
_________
E D WILLE
(CAPE TOWN)