THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JS204/21
In the matter between:
OOSTHUIZEN S M Plaintiff
and
THE MEC: DEPARTMENT OF EDUCATION
NORTHWEST PROVINCE First Defendant
THE HOD: DEPARTMENT OF EDUCATION
NORTHWEST PROVINCE Second Respondent
THE SCHOOL GOVERNING BODY OF
POTCHEFSTROOM HIGH SCHOOL FOR BOYS Third Respondent
POTCHEFSTROOM HIGH SCHOOL FOR BOYS Fourth Respondent
MEYER, C. H. Fifth Respondent
Heard: 29 January 2026
Delivered: 07 May 2026
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
JUDGMENT
PHAKEDI, AJ
Introduction
[1] This is an unopposed application in terms of section 6 of the Employment
Equity Act1 (EEA) pertaining to alleged unfair discrimination.
[2] The Applicant alleges that she was discriminated in the workplace due to her
sex and/or age. Furthermore, the first, second and fourth respondents failed
to take appropriate steps to ensure that she was protected and treated fairly in
the workplace. She is seeking an order:
‘1. Declaring the discriminatory actions mentioned supra of the Fifth
Respondent as the Applicant’s immediate employer, as arbitrary and
unfair discrimination.
2. Directing the First, Second and Fourth Respondents to pay damages
equivalent to an amount to be determined by the Honourable Court as
just and equitable to the Applicant, jointly and severally the one paying
the other to be absolved;
3. Directing the First, Second and Fourth Respondents to pay maxi mum
compensation, in an amount to be determined by the Honourable
Court as just and equitable to the Applicant, jointly and severally the
one paying the other to be absolved;
4. …
5. …’
1 Act 55 of 1998, as amended.
3
[3] Despite being properly served with the statement of claim, the Respondents
filed their statement of response outside the prescribed timeframes and their
application for condonation for the late filing thereof was unsuccessful. The
Respondents then elected not to participate in a pre- trial conference nor
attend court on the trial date. Submissions were made from the bar that their
legal representations sought a postponement of the matter in order to file
opposing papers and the trial proceeded as scheduled.
[4] The Applicant abandoned reliance on the supplementary statement of claim
as it was not filed in compliance with the Rules for the Conduct of
Proceedings in the Labour Court
2.
Brief background facts
[5] The Applicant testified and stated that she possesses a Bachelor’s degree in
Further Education and Training (FET) General and she is qualified to teach
learners from grade 10 and upwards. She was employed by the third
respondent as an Educator based at Potchefstroom High School for Boys on
or about 01 March 2018. When she joined the school, she was appointed to
teach First Additional Language and Economic Management Sciences for
grade 10 and 11 pupils. She also taught grade 8 and 9 learners in the same
school. She earned a monthly salary of R23 336.50 which excluded an
amount of R1500.00 which was paid to her by virtue of being the Gym and
Conditioning Instructor. She was also entitled to an amount of R150.00 which
was paid to the Coaches for attending competitions outside the school or out
of town.
[6] She was later transferred from an SGB post to a Departmental post when Mrs
Myburgh retired in 2019. When Mr Van Vuuren retired in 2019, he was
succeeded by the fifth respondent, Mr Meyer as the Acting Principal. Mr
Meyer then started making her life at the school very difficult. He, without any
consultation removed her from her position as Gym and Conditioning
Instructor and gave this responsibility to a male educator who was not even a
Instructor and gave this responsibility to a male educator who was not even a
2 Repealed and replaced with the Rules Regulating the Conduct of the Proceedings of the Labour
Court. Published 3 May 2024 (GN 50608). Effective 17 July 2024.
4
qualified Gym instructor as opposed to her. When she enquired about his
decision he informed her that she had stolen some gym equipment and this
seriously damaged her reputation and her earnings as she was now only
earning a monthly salary without additional benefits.
[7] Although the school had a rugby team and she was qualified to coach players
under the age of 14 years, she was not given an opportunity to coach the
players. Mr Meyer gave opportunities to only male teachers and this included
teaching grade 12 learners. He refused to allow her to teach grade 12
learners in favour of Mr Havenga. When she enquired about this, she was told
that she needed to have three years’ experience.
[8] In support of her application, Ms Oosthuizen submitted documentary evidence
in the form of WhatsApp texts, emails and letters. She testified that the
working relationship was strained due to Mr Meyer’s unprofessionalism. They
had a staff WhatsApp group and her opinions were always silenced and
dismissed by Mr Meyer who always ignored her inputs while other educators
received positive and professional feedback. In one of chats, he shot down
her opinions by responding ‘Please ladies and gentlemen the SMT will
discuss this matter this afternoon. No use discussing your problems in a
smokers corner or wherever. Mr Eksteen raised a legitimate problem…’
[9] She lodged a formal grievance and complained about not being given a chance
to teach grade 12 classes, and to be considered for a Head of Department
temporary position, and for her work to be moderated externally as opposed to
Mr Havenga moderating it, and for an apology due to unfair treatment she
received. In order to address her grievance a meeting was called with Mr
Meyer who was invited to respond to the allegations and he did. His response
is contained in a letter dated 8 October 2020 and reads as follows:
‘To whom it may concern
Me Oosthuizen came to see me about teaching grade 12's next year. The
‘To whom it may concern
Me Oosthuizen came to see me about teaching grade 12's next year. The
request was a bit premature, but I told her that my plan is to let Mr Havenga
teach the grade 12's. She made objection and came to see me with the
5
SAOU union representative at school to object and made allegations of
sexism. She asked for answers on the following questions:
1. Why she was not re-appointed as gym manager?
When we had the meeting to organise the work distribution, Me
Oosthuizen was not present and have not received any excuse from
her. So it was decided to give the task to one of the students who was
a coach at the NWU and also studied Human moment sciences.
2. Why she was not utilized as an u/14 rugby coach?
At first, Me Oosthuizen asked to coach u/14 rugby. We are working on
a rotation system with the coaches. Mr Smith and Mr Havenga
coached the 1st team in 2019, so they moved down to the u/14's for
2020. Me Oosthuizen was given the opportunity to coach the u/15's,
but she decide to help with the 15' team warm -ups and conditioning.
At the same time Me Oosthuizen started working as a qualified X -
training instructor in town. I was not aware that she had a problem
with not coaching rugby. In fact, I was under the impression that she
was coaching.
3. Why she is not considered to teach grade 12 Afrikaans in 2021?
At the end of last year, I wanted to give Me Oosthuizen the Grade 10
learners for 2020 so she could teach them and move up with them to
grade 12. I told her that I wanted to give Mr Havenga the grade 12
learners for 3 years. Mr Havenga is at Potchefstroom High School for
boys for much longer and never had the opportunity to teach the
grade 12's. For him to mark grades 12 papers and start getting into
setting departmental papers, he must have three year experience
teaching grade 12's. I told Me Oosthuizen that she and Mrs Faul will
get their opportunity to teach the grade 12's. It is important for the
school to give Mr Havenga the opportunity to build up the necessary
experience to head the Afrikaans department.
Another point of consideration will be to give her the opportunity to
share the grade 12’s with Mr Havenga, but last year she was caught
share the grade 12’s with Mr Havenga, but last year she was caught
giving her learners the questions that were asked during the formal
6
assessments. So no other teacher in the Afrikaans department wants
to share a grade with her.
Me Oosthuizen is also often sick and she has used up the almost all her sick
leave in the first two years of the three year cycle. A person teaching grade
12 learners must be at school every day and even afternoons.
Me Oosthuizen is well liked amongst the learners and she is good for them. I
do not wish her harm and I do not doubt her commitment to the learners. I will
give her the opportunity to teach grade 12. I am sure, when she gets the
opportunity, she will be a competent educator.
Yours faithfully
C H Meyer
Acting Principal’
[10] She then sent a formal email detailing her grievance against Mr Meyer and
other senior male educators because as a grade 11 educator she ought to
have been given an opportunity to move with them to grade 12 as this was
good for her development as an educator. Her grievance was about not being
allowed to teach grade 12 learners and the ill- treatment by Mr Meyer. She
later requested her trade union, Suid- Afrikaanse Onderwysersunie (SAOU) to
get involved and the union official discouraged her from proceeding with the
grievance because he was informed that she had stolen gym equipment and
she was involved in a love relationship with the learners. Her grievance was
never referred to the School District nor brought to the attention of the first
and second respondents.
[11] She testified that Mr Meyer later threatened in the presence of a certain Mrs
De Vos and stated that they will make life very difficult for her. The other male
colleagues also threatened her. On one occasion, a certain Tiaan Koug called
her late at night and threatened to find her and chain her. She immediately left
her place of residence to visit a friend who later committed suicide. She was
victimized while staying on the school premises in that her vehicle was
vandalised but nothing was stolen. Mr M eyer also made her pay R3000.00
7
per month for residing on the school premises and this included arrear
amounts from when she was exempted from paying rent during the leadership
of Mr Van Vuuren. She was later diagnosed with depression due to being ill -
treated and the hostile working environment she was subjected to.
[12] Her position as Head of Department (HOD) was later advertised in 2021 but
the male educator occupying another HOD position was not advertised. She
was denied growth opportunities , but male counterparts were given such
opportunities by Mr Meyer. Her salary for April 2021 was withheld and she
was later informed that her contract of employment had expired on 31 March
2021 this was despite having been allowed to work for the month of April. Mr
Meyer then tried to coerce her to take up an SGB position with a lower salary
but she refused. The school had created a WhatsApp group for educators and
she was the only one not allowed to post in the group. Other employees had
bad attitude towards her and did not wish to work with her nor have her on the
school premises.
[13] She later lodged another grievance and the matter was brought to the
attention of the third respondent and Mr Mogaki. However, nothing was done
to Mr Meyer and no investigations were ever done on her grievance and
complaints. Instead, she was informed that she was doing a great job with the
learners and they persuaded her to stay at the school. She was always
stressed and felt suicidal due to bullying and persistent gossip.
[14] She then resigned in 2022 without any alternative employment. She stayed at
home for three months without any income. Mr Mogaki and Mrs Tshabalala
called her trying to dissuade her from resigning but she left because nothing
was done to Mr Meyer. She later got a job at Port Shepston in KwaZulu- Natal
province but she could not cope with the job due to depression. She resigned
on 30 June 2023 as she would sometimes find herself in conflict with the staff
on 30 June 2023 as she would sometimes find herself in conflict with the staff
and the management. When she left the school, the principal advised her to
seek medical help and she went back to Carletonville to stay with her parents.
Although the incidents took place in 2021, she still cries about the pain and
humiliation she endured as a result of victimization, bullying and
discrimination by fifth respondent . The experience left her with serious trust
8
issues towards male leaders and she will never ever go back to teaching
again.
[15] The Applicant was still very much emotional and broke down during her
testimony. The matter had to stand down on two occasions to give her an
opportunity to compose herself and wipe her tears.
The legal framework
[16] 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.
3
[17] Section 6 (2) (b) of the EEA 4 provides that it is not unfair discrimination to
distinguish, exclude or prefer any person on the basis of an inherent
requirement of a job.
[18] 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.5
[19] Section 11 (1) of the EEA6 provides that 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 did
not take place as alleged; or is rational and not unfair, or is otherwise
justifiable.
[20] Section 50 (2) (a) to (c) of the EEA provides that if the Labour Court decides
that an employee has been unfairly
discriminated against, the Court may
3 Section 6(1) of the Act 55 of 1998 as amended.
4 Ibid
5 Section 6(4) of the EEA.
6 ibid
9
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…’
[21] Section 60 provides for an employer’s vicarious liability in the event of an
alleged contravention (by an employee) of the provisions of the EEA and the
employer’s failure to take the necessary steps to address the contravention and
provides that:
‘(1) If it is alleged that an employee, while at work, contravened a
provision of this Act, or engaged in any conduct that, if engaged in by
that employee’s employer, would constitute a contravention of a
provision of this Act, the alleged conduct must immediately be brought
to the attention of the employer.
(2) The employer must consult all relevant parties and must take the
necessary steps to eliminate the alleged conduct and comply with the
provisions of this Act.
(3) If the employer fails to take the necessary steps referred to in
subsection 2, and it is proved that the employee has contravened the
relevant provision, the employer must be deemed also to have
contravened that provision.
(4) Despite subsection (3), an employer is not liable for the conduct of an
employee if that employer is able to prove that it did all that was
reasonably practicable to ensure that the employee would not act in
contravention of this Act.
10
[22] Section 1, definitions contained in the Promotion of Equality and Prevention of
Unfair Discrimination Act7 reads:
“ 'prohibited grounds' are -
(a) race, gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language, birth and HIV/AIDS status; or
(b) any other ground where discrimination based on that other ground –
(i) causes or perpetuates systemic disadvantage;
(ii) undermines human dignity; or
(iii) adversely affects the equal enjoyment of a person's rights and
freedoms in a serious manner that is comparable to
discrimination on a ground in paragraph (a);’
The test for unfair discrimination
[23] The Constitutional Court laid down an approach to interpretation and
application of section 8 of the Interim Constitution, which section has now
been replaced by section 9 of the Constitution for the Republic of South
Africa, 1996. The test for unfair discrimination was set out in Harksen v Lane
NO and Others8 as follows:
‘[54] At the cost of repetition, it may be as well to tabulate the stages of
enquiry which become necessary where an attack is made on a
provision in reliance on section 8 of the interim Constitution. They are:
(a) Does the provision differentiate between people or categories
of people? If so, does the differentiation bear a rational
connection to a legitimate government purpose? If it does not
then there is a violation of s 8(1). Even if it does bear a rational
connection, it might nevertheless amount to discrimination.
7 Act 4 of 2000.
8 1998 (1) SA 300 (CC) at para 54.
11
(b) Does the differentiation amount to unfair discrimination? This
requires a two stage analysis:
(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 unfairness focuses primarily on the impact of the
discrimination on the complainant and others in his or
her situation. [If, at the end of this stage of the enquiry,
the differentiation is found not to be unfair, then there
will be no violation of s 8(2)].
(c) If the discrimination is found to be unfair then a determination
will have to be made as to whether the provision can be
justified under the limitations clause (s 33 of the interim
Constitution).”
Evaluation and conclusions
[24] The Applicant in these proceedings alleges Mr Meyer discriminated against
her on the basis of sex and/or age by refusing to give her an opportunity to
teach the grade 12 class and refusing to reinstate her as head of the gym and
conditioning. Having regard to the evidence tendered and the submissions
made by counsel, the court finds it difficult, albeit in the absence of a
response by the Respondents to come to a conclusion that the Applicant has
12
proven that the conduct she is complaining about amounts to unfair
discrimination.
[25] It is trite that when dealing with discrimination cases, the conduct complained
of must be judged against the core value of human dignity. In Ndudula and
others v Metrorail – PRASA (Western Cape)9 the Labour Court with reference
to Harksen reaffirmed that:
“the crux of the test for unfair discrimination is the impairment of human
dignity or an adverse effect in a comparable, similar manner and not the
classification of the ground as listed or unlisted. The distinction between listed
and unlisted grounds affects only the burden of proof. Differentiation on both
a listed and analogous ground amounts to unfair discrimination only if the
differentiation has indeed affected human dignity or has had an adverse effect
with a similar serious consequence.”
[26] The Labour Appeal Court ( LAC) in Naidoo and Others v Parliament of the
Republic of South Africa 10 warned that the EEA is not a limitless remedy for
all grievances within the workplace and stated:
‘[25] … The EEA is not intended to be a catch all or a panacea. Indeed, the
EEA is the instrument of section 9 of the Constitution and therefore its
mission is to give teeth to that Constitutional guarantee within the
scope of the terms expressed in that section. Section 9 is not an all -
encompassing injunction, rather its purpose is to give recognition to
the value of our humanity and provide a remedy for aggression
against us on the grounds of our intimate attributes, whether inherent
or adopted. In other words, section 9 has a specific and
concrete focus, intelligible within the context of the historical
experience of South Africa’s legacy of oppression. The
writers, Garbers and Le Roux, rightly caution against being seduced
by the idea that anti -discrimination law can be weaponised to solve all
labour market ills. Other vicissitudes of life find remedies elsewhere,
not least of all in the panoply of protections in Labour Legislation.
[ 26] …
not least of all in the panoply of protections in Labour Legislation.
[ 26] …
9 (2017) 38 ILJ 2565 (LC) at para 73.
10 (2020) 41 ILJ 1931 (LAC) at para 25 to 27.
13
[27] Garbers and Le Roux offer a critique of the broad compass idea and,
in great detail, eviscerate the thesis. It is unnecessary to address all of
their reasoning to demonstrate a convincing rejection of the broad
compass interpretation. The essential point is that the phrase to which
meaning must be attributed is “ … any other arbitrary ground” and not
the word “arbitrary,” free from its context and function. In this context
the word “arbitrary” is not a synonym for the word “capricious.” The
injunction in section 6(1) is to outlaw, not “arbitrariness”, but rather to
outlaw unfair discrimination that is rooted in “another” arbitrary ground
(the syntax of “ …any other…” cannot be understood as otherwise
than looking back at what has been stipulated in the text that precedes
it). Capriciousness, by definition, is bereft of a rationale, but unfair
discrimination on a “ground” must have a rationale, albeit one that is
proscribed. The glue that holds the listed grounds together is
the grundnorm of Human Dignity. The authors express this view, with
which I agree:
“Discrimination is about infringement of dignity (or a
comparably serious harm), about an identifiable and
unacceptable ground and about the link directly or indirectly)
between that ground and the differentiation. Should a ground
not be listed, it should meet the well -established test for
unlisted grounds: it must have the potential to impair the
fundamental human dignity of a person (or have a comparably
serious effect) and has to show a relationship with the listed
grounds.’
[27] Having considered the evidence tendered in this application, the Court comes
to a conclusion that t he Applicant has failed to make the minimum sufficient
allegations to sustain a claim for unfair discrimination within the meaning of
section 6 (1) of the EEA. The bulk of her complaints were already addressed
by Mr Meyer in his letter dated 08 October 2020. She also failed to
by Mr Meyer in his letter dated 08 October 2020. She also failed to
demonstrate how giving Mr Havenga an opportunity to teach the grade 12
class as he had been at the school longer was discriminatory against her on
the basis of age and sex? The Court has noted that in his letter, Mr Meyer had
14
stated that she was a good educator and he wished to give her an opportunity
to teach the grade 12 learners as she had a good relationship with them.
[28] The matter was not opposed, as such the issue of costs does not arise.
Accordingly, the following order is made:
Order
1. The application is dismissed.
2. There is no order as to costs.
_______________________
G. C. Phakedi
Acting Judge of the Labour Court of South Africa.
15
Appearances:
For the Plaintiff: Adv M Coetzee
Instructed by: Susan Greef Attorneys
For the Defendant: No appearance