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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE NO: JS629/14
In the matter between:
RACHEL NKHWATSHIREMA Plaintiff
and
TRANSNET FREIGHT RAIL Defendant
Heard: 25 May 2026
Delivered: 9 June 2026
Summary: Alleged unfair discrimination. Failure to establish any differentiation on an
arbitrary basis. No unfair treatment which negatively impacted the plaintiff’s dignity
and right to equality. Claim dismissed.
JUDGMENT
(1) Reportable: NO
(2) Of interest to other Judges: NO
Signature Date
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DANIELS J
Introduction
[1] The plaintiff applied for a job with the defendant , but the application was
unsuccessful. The plaintiff alleges that she was not appointed due to unfair
discrimination, the precise nature of which was unspecified. At the start of the
trial, the court enquired about the nature of the alleged discrimination. The
plaintiff, aside from confirming that she did not rely on race or gender, could
not clearly articulate the ground of discrimination. On the other hand, the
defendant’s representative stated that the defendant understood the plaintiff’s
case to be that she was unfairly discriminated against based on her
qualifications.
The facts
[2] The defendant commenced with the leading of evidence and called two
witnesses, Ms. Mary Cecilia Lovinga (“Lovinga”) and Mrs. Share
Bhoonpershad (“Bhoonpershad”). Thereafter, the plaintiff testified on her own
behalf. A summary of the material evidence is set out below.
2.1 During September 2013, the defendant advertised the position of
horticultural assistant in Vryheid, KwaZulu-Natal. The plaintiff applied for
the position. The advertisement indicated that job applicants were
required to have a code B driver’s license and that horticultural experience
would be an advantage.
2.2 In the defendant’s view, there were too few applicants , and it therefore
decided to shortlist and interview them all. The plaintiff was interviewed for
the position, together with two other applicants.
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2.3 The interviewing panel consisted of three members , namely Ms Mangeni,
Mr Roberts, and B hoonpershad. The panel scored each of the three
candidates. The applicant was found to be competent, but she scored
lower than Ms. Sebatjane in three areas: effective oral communication,
administrative skills, and problem-solving.
2.4 Following the interview, when the plaintiff did not hear from the panel , she
contacted the defendant herself. She spoke with Ms. Mlangeni, Lovinga,
and Bhoonpershad.
2.5 The plaintiff alleges that Bhoonpershad initially told her she would have
“good news ” for her soon and that she should monitor her email . As a
result, the plaintiff alleges, she resigned from her employment at the time
and prepared to relocate to Kwa -Zulu Natal. These conversations
occurred between October 2013 and January 2014.
2.6 Finally, during February 2014, when the plaintiff telephoned
Bhoonpershad, she was told that she had not been successful and the
defendant had appointed the most competent individual, Ms Sebatjane.
This telephonic conversation, which the plaintiff recorded (the “recorded
conversation”), was played in court. Prior to the trial, the plaintiff
discovered a transcript of the conversation (the “transcript”).
2.7 During the recorded conversation, the plaintiff stated that Bhoonpershad
had promised to “come with good news (sic) end of February” which
Bhoonpershad immediately denied. The plaintiff reminded Bhoonpershad
that she held a bachelor’s degree in agriculture, and Bhoonpershad
reminded her that the Vryheid position was not senior.
2.8 Thereafter, the plaintiff was telephoned by Ms. Helena Herman, the
defendant’s employee, who asked the plaintiff whether she would be
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interested in applying for a vacant position in Ermelo, to which the plaintiff
replied that she was. In her evidence, the plaintiff, for the first time,
alleged that Ms. Herman told her to report for duty in Ermelo. This version
was not pleaded.
2.9 The plaintiff, aggrieved by the recruitment process and the outcome,
complained to the defendant, who decided to investigate. The plaintiff also
approached the Office of the Public Protector. Receiving no satisfaction,
the plaintiff resolved to approach the court.
Impression of the witnesses
[3] It is an opportune moment to comment on the witnesses.
[4] The defendant called two witnesses who, in many respects, corroborated each
other, thus lending stability to that narrative. They both testified with candour
and the essential elements of their version were not disturbed under cross -
examination.
[5] Plaintiff critiqued Bhoonpershad’s credibility on the basis that she initially
denied the accuracy of the transcript but, when the recording was played,
conceded it was correct. I do not accept the criticism. Giving evidence can be a
stressful experience, and mistakes often occur under pressure. In any event,
even if the witness testified falsely and did so deliberately (with which I do not
agree), this does not warrant the conclusion that the witness is a liar in all
things.
1 The question is always whether the witness can be said to be truthful in
respect of the essential elements of his or her story.
1 SALJ "Credibility of witnesses" by HC. Nicholas at pp35 and 40
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[6] By contrast, I found the plaintiff to be completely lacking in credibility. First, h er
testimony contradicted her pleadings in important respects. For instance, during
the cross-examination of witnesses, the plaintiff suggested that the reason she
was not appointed was her age. This was not the pleaded case, which the court
was forced to remind the plaintiff of .2 The plaintiff’s conduct strongly suggested
that her testimony was manufactured in the moment, to suit the circumstances.
Second, t hroughout her testimony, the plaintiff was evasive, often refusing to
make obvious concessions.
Dispute of fact
[7] The only fact in dispute that could possibly be relevant is whether the defendant
promised to appoint the plaintiff and then reneged on the promise. 3 The court,
to reach a decision on disputed issues, must consider the credibility of the
various factual witnesses, their reliability, and the probabilities. It is trite that the
issue of credibility and probability is intertwined. 4 Of all the factors,
consideration of the probabilities is most significant.
[8] On the probabilities, the defendant made no such promise to the plaintiff. First,
the plaintiff alleges only that she was promised “good news.” On its own, this is
devoid of content. Second, in the real world, it is improbable that the defendant
would make such a promise and then renege on the promise for no reason. In
any event, the defendant consistently denied making any promise.
2 In Molusi and Others v Voges N.O. and Others 2016 (3) SA 370 (CC) at para [28] the Constitutional
Court quoted with approval the trite statement that : “It is equally not permissible for the trial court to
have recourse to issues falling outside the pleadings when deciding a case.”
3 Although this relates to unfairness and would not prove unfair discrimination.
4 National Employer’s General Insurance Co. Limited v Jagers 1984 (4) SA 437 (E)
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The issues and analysis
[9] Regrettably, the plaintiff’s pleadings do not clearly set out the basis of the
alleged unfair discrimination. When pressed, the plaintiff could not clarify the
issue. Defendant explained that the plaintiff alleges she was discriminated
against based on qualifications. The defendant referred the court to paragraph
[20] of the statement of claim: “ On or about 14 February 2014 the applicant
then contacted Mrs Bhoonpershad and was advised that she had not been
appointed as the applicant was overqualified for this particular position.”
[10] Qualifications are not identified as a ground of discrimination in section 6(1) of
the Employment Equity Act
5 (hereafter the “EEA”). Section 6(1) states:
“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.”
(own emphasis)
[11] Given that qualifications are not an identified ground of discrimination, the
plaintiff’s case appears to be that she was unfairly discriminated against on an
arbitrary ground (qualifications) as contemplated by section 6(1) of the EEA.
[12] Section 11(2) of the EEA provides that, w here unfair discrimination is alleged
on an arbitrary ground, the complainant must prove that the conduct is not
rational, the conduct complained of amounts to discrimination, and the
discrimination is unfair.
5 No. 55 of 1998 as amended
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[13] It can hardly be contentious that applicants are scrutinized for their ability to
perform the job well. To achieve this, applicants must be suitably qualified and
experienced.6
[14] It is clear that the Legislature does not intend, through section 6(1) of the
EEA, to comprehensively regulate hiring practices . An employer may
legitimately scrutinize job applicants, using their performance in an interview,
taking into consideration factors such as suitability and compatibility . It may
also consider factors such as presentation, drive, loyalty, talent retention, and
talent acquisition. In addition, it is no secret that employers are less inclined to
appoint candidates who are overqualified for the position, given the possibility
that the candidate will use the opportunity as a stepping stone.
[15] In Kadiaka v Amalgamated Beverage Industries7 Landman J (as he then was)
held:
“What then are arbitrary grounds? An arbitrary ground is a ground which is
capricious or proceeding merely from the will and not based on reason or
principle. See L Baxter Administrative Law at 521-2 relying on Beckingham v
Boksburg Licensing Court 1931 TPD 280 at 282). In my view, without
attempting to be exhaustive, unfair discrimination on an arbitrary ground takes
place where the discrimination is for no reason or is purposeless. But even if
there is a reason, the discrimination may be arbitrary if the reason is not a
commercial reason of sufficient magnitude that it outweighs the rights of the
job-seeker and is not morally offensive. The discrimination must be balanced
against societal values, particularly (as emphasised repeatedly by the
Constitutional Court) the dignity of the complainant and a society based on
equality and the absence of discrimination." (own emphasis)
6 However, discrimination may still occur where the criteria (including qualifications or experience) for
a job are set in such a manner as to arbitrarily exclude a particular group. See A Van Niekerk
a job are set in such a manner as to arbitrarily exclude a particular group. See A Van Niekerk
“Discrimination in selection and recruitment” Contemporary Labour Law Vol. 4 No. 10 (May 1995)
7 [1998] JOL 4069 (LC)
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[16] In Association of Mineworkers & Construction Union on behalf of Members v
Aberdare Cables (Pty) Ltd & others8 Prinsloo J held:
“The EEA does not prohibit differentiation, it prohibits unfair discrimination .
More specifically, s 6(1) of the EEA does not prohibit differentiation or
arbitrariness, it prohibits unfair discrimination on an ‘arbitrary ground’.
‘Arbitrary ground’ as provided for in s 6(1), read in conjunction with s 11(2),
makes it clear that the irrationality of differentiation per se will not win
a discrimination case based on an arbitrary ground. The conduct complained
of must amount to unfair discrimination in that it must cause an injury to
human dignity . Irrationality does not win a case, the irrationality
of discrimination does.”
(own emphasis)
[17] In Naidoo and others v Parliament of the Republic of South Africa 9 the LAC
held that, to establish an arbitrary ground, the plaintiff must prove that the
ground is based on a personal attribute or characteristic, it has the potential to
impact human dignity, and it causes or perpetuates a systemic disadvantage.
[18] In this matter, the plaintiff alleges that she was not appointed because she
was overqualified for the position, and this constituted unfair discrimination.
She bore the onus of proving the discrimination and that it was unfair. To do
so, she was required to prove, as a starting point, that the alleged basis for
her non- appointment was irrational. This she could not do. Even if the
defendant decided not to appoint her on the basis that she was overqualified,
which was not proven, this would not have been ir rational. On the evidence,
the defendant did not appoint the plaintiff because she was not the best
candidate. Accordingly, the plaintiff failed to show that the defendant
discriminated against her on a basis that caused or could cause an injury to
her dignity. The differentiation did not cause or perpetuate a systemic
disadvantage.
8 (2024) 45 ILJ 511 (LC) at para [52]
disadvantage.
8 (2024) 45 ILJ 511 (LC) at para [52]
9 (2020) 41 ILJ 1931 (LAC)
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Costs
[19] It is trite that costs in this court do not follow the result and must be
determined on the dual criteria of law and fairness. The plaintiff’s case was
weak, but I must take into consideration that she was unrepresented. Further,
I must take into consideration that , although mistaken, the plaintiff genuinely
believed that she was vindicating her right against unfair discrimination. In the
circumstances, I do not believe that the plaintiff should be mulcted in costs.
Conclusion
[20] The plaintiff’s claim is dismissed. There is no order as to costs.
RN Daniels
Judge of the Labour Court of South Africa
For the plaintiff:
Self-represented
For the defendant:
Adv K Mokotedi SC
Instructed by Tomlinson Mnguni James Inc